Category Archives: Constitution

Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

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Be Careful What You Wish For

It really is hard to keep up with all of the Trump Administration’s assaults on modernity–its disavowal of science, its attacks on public education, immigrants and poor people, and of course, its persistent efforts to turn back the social clock to “times gone by,” when straight white Protestant men were kings.

One aspect of that relentless attack on equality–what you might call the “Mike Pencification” of policy–is the administration’s current determination to de-fund Planned Parenthood. After all, women who have access to birth control and Pap smears are free to enter the workforce and even the political arena. Their ability to plan their pregnancies even allows them to engage in lustful sex without incurring God’s disapproval in the form of an unplanned child.

Shades of Margaret Atwood. As Michelle Goldberg recently opined in the New York Times, 

Donald Trump’s administration turns the Gilead model upside down. Its public image is louche and decadent, with tabloid scandal swirling around the president and many of his associates. This can make it hard to focus on the unprecedented lengths the administration is going to curtail American women’s reproductive rights and enrich the anti-abortion movement.

On Friday, the Trump administration escalated its war on Planned Parenthood and the women who use it. It released a rule prohibiting Title X, a federal family-planning program that serves around four million low-income women, from funding organizations that also provide abortions. Further, the administration instituted an American version of the global gag rule, barring doctors and nurses receiving Title X funds from making abortion referrals to their patients except in certain emergency situations.

The new approach mirrors what Pence did in Indiana–it diverts funding from organizations operating on the basis of sound medical science and sends the monies instead to religious groups, many of which are not just anti-choice, but anti-contraception.

The administration appears to think that religious anti-abortion groups, including those opposed to contraception, will fill some of the gaps. The new regulation jettisons a requirement that Title X clinics provide “medically approved” family planning services. That means that funds that once went to Planned Parenthood could flow instead to anti-abortion groups that promote so-called natural family planning. Unless the courts halt the new policy, struggling women who need refills on their birth control pills could get federally funded lectures on the rhythm method instead.

Goldberg calls this a “move to turn a lifesaving women’s health program into pork for the religious right.” (She’s right on the money; that was also Pence’s motive for Indiana’s voucher program, which takes millions of dollars from the state’s public school system in order to prop up the religious schools that make up 95% of the institutions accepting vouchers.)

The assault on Planned Parenthood joins the successful effort to pack the federal courts–including the Supreme Court– with anti-choice judges, and it doesn’t bode well for the continued viability of Roe v. Wade.

Ironically, sending the legality of abortion back to the states, as a decision to overturn Roe would do, would fall into the “be careful what you wish for” category. Republicans have benefitted greatly from the one-issue voters they cynically created. Should Roe be overturned, the zealots in states that continue to allow abortions  would turn their attention to those legislatures, but those would mostly be deep blue states where they would be unlikely to prevail. Anti-choice activists in red states with compliant legislatures would mostly cease to be activists; they would consider their “job” accomplished.

The majority of Americans who support a woman’s right to make her own decisions about reproduction, however, would be highly likely to take their outrage to their polling places. Most of them have been complacent until now, assuming the courts would continue to protect women’s autonomy.

A “victory” for opponents of reproductive rights would be likely to do two things: tamp down the passions of the anti-choice warriors, and “activate” millions of Americans who would rightly see that victory as a theocratic threat. If survey research is to be believed, the latter group is much larger than the former.

Those people vote. And they sure  won’t be voting Republican.

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This Is Very Good News

It’s hard these days not to focus on what’s stupid, corrupt and/or depressing. In fact, I find it hard to avoid news that gives me heartburn.

Nevertheless, there are also nuggets of hopefulness available, as I was reminded when I came across this announcement from the Knight Foundation.

MIAMI—Feb. 19, 2019—The John S. and James L. Knight Foundation today announced that it would double its investment in strengthening journalism to $300 million over five years, with a focus on building the future of local news and information, which are essential for democracy to function.

Knight called on individual and institutional funders to join in this opportunity to rebuild trust and foster sustainability in journalism, an essential democratic institution, starting on the local level.

Knight’s initial investments are in scalable organizations committed to serving communities at the local level — all of which are seeking additional support. These organizations are building new business models, strengthening investigative reporting, protecting press freedom, promoting news literacy, and connecting with audiences through civic engagement and technology.

Regular readers of this blog are familiar with–and probably tired of–my frequent complaints about the demise of local journalism (just this week, we learned that Indianapolis’ alternative newspaper is also ceasing publication), and the negative effects that the void of local coverage has had on local government.

The causes and consequences of the collapse are not a mystery; and the Knight announcement spelled them out.

Newsrooms across the nation have been decimated by the collapse of traditional business models brought on by the impact of digital technology and social media, which have drawn readers and advertisers to other information sources on the internet. As a result, many communities have turned into news deserts, with little or no local reporting.

“Without revenue, you can’t pay reporters. Without reporters, you can’t develop consistently reliable news reports about what’s happening in your town. Without that reliable news report, you can’t figure out how to run local government. It isn’t rocket science,” said Alberto Ibargüen, Knight Foundation president. “We’re not funding one-offs. We’re helping to rebuild a local news ecosystem, reliable and sustainable, and we’re doing it in a way that anyone who cares can participate.”

The Knight Foundation was created and funded by a once-vibrant news organization, and this initiative will seek new ways–collaborative, digital, and local–to reinvigorate journalism at the community level. The grants will support several national organizations that serve as important resources for local efforts, including the American Journalism Project, Pro-Publica, Report for America and FrontlinePBS; it will also provide resources for defense of the First Amendment, tripling the number of lawyers working on local First Amendment issues and expanding the network of local attorneys available to provide pro bono legal support.

Equally important–and welcome–is the funding allocated to important efforts to bolster what we now call “news literacy,” the battle against disinformation and propaganda.

And finally,

Knight is investing an additional $35 million in research to support the creation and expansion of research centers around the United States. This research will study the changing nature of an informed society in America and will help build an emerging field of study to address pressing questions about the health of an informed society and citizenry in the digital age.

Citizens can only act on the basis of what they know. An absence of credible information–or worse, its displacement by dishonest or manufactured information–makes democratic self-government impossible.

Democratic participation requires accurate and complete information.  I can think of very few initiatives more important than this one.

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Trumping The Constitution

I’m not one of those old people who is always looking back in time through rose-colored glasses–“remembering” that families were closer, people were friendlier, children were seen and not heard, etc. etc. Those memories are highly suspect, if not deliberately dishonest.

That said, I do miss the Republican Party of my younger days. It’s true that it always had a right-wing fringe, but before that fringe took control and ran reasonable people out, the GOP I worked for was filled with admirable, public-spirited men and women.

I thought about those “good old days” when I read that a group of former GOP lawmakers had written a letter to Republicans in Congress, urging them to void Trump’s “Emergency” declaration.

A group of 23 former Republican lawmakers, including former Defense Secretary under the Obama administration Chuck Hagel, signed a letter urging Republicans in Congress to pass a joint resolution that would terminate President Trump’s emergency declaration over the border wall.

In an open letter to GOPers, the former lawmakers argued that Congress should not allow the President to “circumvent congressional authority.” They also questioned how willing lawmakers are to undermine the Constitution.

“How much are you willing to undermine both the Constitution and the Congress in order to advance a policy outcome that by all other legitimate means is not achievable?” they wrote.

One of the signatories to that letter was former Indiana Senator Dick Lugar.

The contrast between the Republican Party of Lugar and Hudnut and the party of McConnell and Trump is devastating. The Republicans who currently “serve” Indiana in the House and Senate (please note quotation marks around the word serve) are a sorry group of wanna-be’s, terrified that they will run afoul of the party’s rabid, racist base if they confront a President they know to be corrupt, ignorant and dangerously incompetent.

The letter from party elders was blunt: support for Trump’s “Emergency” is an attack on the Constitution. Failure to oppose it is failure to serve the national interest. And yet, every single Republican member of Indiana’s House delegation caved. Faced with a choice between serving their country and falling into line for Trump, they chose Trump.

Emergency powers are intended to allow Presidents to act when there is not time for Congress to do so. If the President can overrule Congress when it has acted, simply by declaring an emergency, there is no longer a separation of powers. Congress is neutered.

The lawyers in Indiana’s delegation, especially, fully understood the import of their votes. (And yes, Susan Brooks, we are looking at you.)

In an eloquent essay in the Atlantic, Eliot Cohen described these Republicans.

Talk to them privately, and they will confess that there is no emergency at the southern border—there is a problem, to be sure, but one whose seriousness has actually diminished over time. They know that the congressional leadership had the votes to build walls there for the first two years of the administration but did not manage it. They know, for that matter, that border security involves much more than walls. They know that the president is invoking emergency powers as an electoral ploy, and because he is impatient.

They know, in their timid breasts, that they would have howled with indignation if Barack Obama had declared a national emergency in such a circumstance. As they stare at their coffee cup at breakfast, the thought occurs to them that a future left-wing president could make dangerous use of these same powers—because Speaker Nancy Pelosi rubbed that fact in their face. Some of the brighter ones might even realize that emergency powers are a favored tool of authoritarians everywhere.

 But they are afraid. They are afraid of being primaried. They are afraid of being called out by the bully whom they secretly despise but to whom they pledge public fealty. They are afraid of having to find another occupation than serving in elective office. And the most conceited of the lot—and there are quite a few of those, perhaps more in the Senate than in the House—think that it would be a tragedy if the country no longer had their service at its disposal.

I didn’t always agree with Dick Lugar’s policy preferences. (I didn’t always agree with Bill Hudnut’s, and I worked in his administration.) But I respected them both, and I respected the many, many other persons of integrity and intelligence who called the GOP their political home before it devolved into a cult composed of racists and moral midgets.

I miss them.

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Assaulting Democracy

The warning signs are everywhere.

Governing Magazine has added to the evidence that America is losing even the pretense of democracy.

In the first several years after the Affordable Care Act (ACA) helped states make more low-income people eligible for Medicaid, it was only Democratic-led states that took the federal government up on its offer. Republicans have since warmed to the idea — but only on their own terms, and sometimes even if it means going against voters’ wishes…..

While some Republicans in Georgia, Oklahoma and Wyoming are exploring the possibility of Medicaid expansion in their states, Idaho and Utah are undoing ballot measures that voters passed in November to expand Medicaid.

In Utah, the Republican governor responded to the success of a ballot initiative expanding Medicaid by signing a bill that would only cover people earning up to the federal poverty line; it would also cap enrollment if costs exceed what’s expected.

But the terms of the ballot measure, which passed with 53 percent of the vote, were to expand Medicaid eligibility to people earning up to 138 percent of the federal poverty line.

Utah has to get federal approval of this law, and similar measures were not approved during the Obama administration. The Trump Administration, of course, is hostile to pretty much everything the federal government does, so it might very well allow what is a clear repudiation of the will of the voters in Utah.

It isn’t only Utah.

Idaho is also eyeing a rollback of its citizen-led Medicaid expansion ballot measure. The initiative won handily, with 61 percent of the vote….But legislation to void the initiative is currently making its way through the Idaho statehouse.

And many of you will recall that in 2016, Maine voters approved Medicaid expansion, but the state’s certifiable nut-case then-governor, Paul LePage, prevented it from taking effect.

Whatever one’s position on Medicaid expansion, these are truly breathtaking examples of legislative and administrative chutzpah. The citizens of these states voted on an issue before them; in essence, they gave instructions to the people who are presumably in office to represent them. And those people simply ignored them.

This is not unlike Trump’s decision to declare an “emergency” that would allow him to defy a Congressional vote. Even if a member of Congress believes the wall should be built, he or she should be appalled by a Presidential action that strikes at the very heart of the Constitution’s separation of powers. It ignores as irrelevant the constitutional provision that vests decisions about spending in Congress, a provision that–before now–has constrained lawmakers and administrators alike.

Congress said no. That should have been the end of it. The President’s “emergency” is not only bogus, it ignores the clear division of authority mandated by the nation’s charter.

Yet every single Indiana Republican Representative voted against the House Resolution to reverse that dangerous attack on a fundamental element of American governance, placing the interests of their political party above both the good of the country and fidelity to their oaths of office.

Without the rule of law–without lawmakers and public officials who are willing to accept the decisions of voters whether they like those decisions or not; without lawmakers who are willing to insist upon compliance with the Constitution even when it is their party that is breaking the rules–we don’t have a democracy or a republic or even a legitimate government.

We have a banana republic.

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