Public Policy and Governance – Page 110

Very Interesting…

Most of us of a “certain age” remember Arte Johnson’s Laugh In character who would emerge from undergrowth at points in the show and declaim “Veery interesting!”

A reader sent me a column that elicited a similar sentiment from me as it had from him. He wanted to know whether the legal points being raised were accurate. As I indicated, it’s an area far beyond what expertise I still–or ever–had, but I promised to do a bit of research.

The article itself, titled “Who’s Afraid of Mitch McConnell,” asserted that even in the absence of wins in Georgia, Kamala Harris has authority under the Constitution to call on any senator who will call up one of the numerous bills on which McConnell has refused to allow a vote. Lawyers who read this blog can click on the link and draw their own conclusions.

I did some limited research, but Dr. Google let me down, so I turned to a couple of lawyers I know, who met my very stringent criteria: they had to be good lawyers, they had to be politically savvy, and they had to be nice people who were likely to humor me. (So–one of my sons and a friend who is really, really smart. Both named David.)

That friend summed up the problem with the article’s thesis thusly:

Certainly not my area of expertise, but I see three problems with the analysis.

First, custom becomes rule. The idea that a VP could come in and do this without a massive response is pie-in-the-sky. The pushback would come from Democrats as well as Republicans, protecting Senate privilege and custom from interference from the Executive.

Second, it ignores the elephant in the room, cloture. Even if Harris could do this, it still takes 60 votes to stop debate, and Republicans not only have them, but such a strong-armed move would guarantee a complete shut down of the Senate, with no negotiation or compromise.

And third, it assumes today’s Republicans are capable of shame. The idea that bringing a vote to the floor would change their behavior is akin to assuming that putting a bow on a rabid pit bull will make it a poodle.

My son was–if possible–even more negative. His comment (edited slightly for profanities–he takes after his mother):

I agree with David. I would add (as I mentioned on the FB page of the guy who circulated this point a few weeks ago) that the ONLY thing the applicable clause of the Constitution says about VP and Senate is that the VP is the President of the Senate and gets NO vote unless the body is evenly divided…. hardly a textual position of strength to argue that the VP can come in and dictate who gets to preside and run the show.

Also, the argument is somewhat internally contradictory — on the one hand, the Constitution grants her sweeping powers to override longstanding, informal rules, on the other hand, the VP’s “priority recognition”-power IS one of those informal rules.

Of course, all the other practical/political/prudential reasons David noted are also at work.

I think it’s a fantasy, particularly in a world where EVEN IF Dems retake the Senate by winning both Dem seats in Georgia, f***ers like Manchin and Feinstein stand ready to kill any attempt to even soften the Filibuster that would defang McConnell.

Actually, his last sentence suggests his current mood, and may indicate a need for intervention–or at least, strong drink:

The country is doomed. The sooner we all move away, the more peace of mind we’ll have.

It would be lovely if the Constitution or some other part of the legal system had a shortcut we could use to repair what is broken. It doesn’t. We have a lot of work ahead of us–and failure to do that work would doom the American experiment.

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The Dilemma

I have found Charles Blow to be one of the most thoughtful and incisive columnists at the New York Times, and a recent column is an example.

Like many of us, Blow is ready to “move on,” but unsure what such “moving on” requires. Worse still, we are (choose your image) caught between a rock and a hard place, or faced with the perennial choice between chicken and egg. Blow uses an everyday dilemma faced by Blacks as an example:

You are receiving a service for which tipping is a customary practice. Maybe you’re taking a cab or receiving a beauty treatment; maybe having a drink at a bar or eating at a restaurant.

Your service provider is not Black. The service is poor. Your server is not at all attentive. You wait for things far longer than you believe you should or far longer than you believe others in the space are waiting.

When the check comes, what should the customer do? Blow says that there are studies showing that Black people on average tip less. Studies also show that servers on average provide Black people inferior service. Given the accuracy of those results, a good-sized tip that rewards poor service might help erode the perception that Black folks don’t tip well–and as Blow says, perhaps make the next Black person’s service better. On the other hand, an average or below-average tip, the size merited by the poor service, risks cementing, in the server’s mind, the belief that Black people are poor tippers.

Neither alternative is particularly attractive.

Blow then points out that this is very similar to the dilemma faced by members of minority groups when the party that wants to keep them unequal loses an election.

There is always so much talk of unity and coming together, of healing wounds and repairing divisions. We then have to have some version of the tip debate: Do we prove to them that we can rise above their attempt to harm us or do we behave in a way that is consummate with the harm they tried to inflict?

There is a legitimate argument to be made that a spiral of recriminations will always descend into a hole of collective harm. Still, there must also be an acknowledgment that the prejudiced were trying to harm you and that, but for a few hundred thousand votes in the right states, they would have succeeded in exacting that harm.

There has been, as the column notes, ample evidence of Trump’s bigotries–against Blacks, against women, against (brown) immigrants. The vast majority of people who voted for him were well aware of that evidence. What Blow doesn’t say–but I will–is that Trump’s bigotries and racism were features, not bugs, of his campaign. His endorsement of bigotry– his normalization of racism and sexism–was at the heart of his appeal to more voters than we like to recognize.

The best you can say is that his voters certainly didn’t consider his “out and proud” racism disqualifying. So we are back to the chicken and egg.

Joe Biden, as he has always said, is seeking to be a unifying president, to be the president of the people who didn’t vote for him as well as the ones who did. I want to have that same optimistic spirit, but I must admit that my attempts at it may falter.

I don’t want to be the person who holds a grudge, but I also don’t want to be the person who ignores a lesson. The act of remembering that so many Americans were willing to continue the harm to me and others and to the country itself isn’t spiteful but wise.

Next month Joe Biden will be sworn in and the next chapter of America will begin. I plan to meet that day with the glow of optimism on my face, but I refuse to vanquish the shadow of remembrance falling behind me.

We share the conundrum. How do we model better, more truly patriotic behavior without inadvertently giving unacceptable and harmful behaviors and attitudes a pass?

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The Real Checks And Balances

It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.)

We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)

Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.

All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.

A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.

Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.

Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.

What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.

Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”

Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.

The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.

I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.

Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.

The question going forward is: how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education.

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Time For A New Center-Right Party?

So here is where we are. We have a sitting president pretending that he won an election he resoundingly lost, and nearly 90 percent of the GOP members in Congress refusing to challenge the assertion.

Top officials in 18 states and more than half of House Republicans supported a bonkers lawsuit trying to reverse the result of the election–even though a number of them owe their own seats to that same election.

Meanwhile, Proud Boys (a White Supremacist gang) prowl the streets of Washington and were actually invited into the White House by a deranged and dangerous almost-ex President.

To say that this is all insane behavior is to belabor the obvious. Even Trump ally Chris Christie has called the Texas lawsuit “absurd.”

Prior to the Presidential campaign, former GOP strategists and conservatives–including Rick Wilson, George Conway, Steve Schmidt, Reed Galen, Jennifer Horn, John Weaver, Ron Steslow, and Mike Madrid formed the Lincoln Project, “accountable to those who would violate their oaths to the Constitution and would put others before Americans.” Wilson, Conway and Schmidt have been particularly vocal in repudiating the Trumpism that has radicalized and infantilized what remains of the GOP. There have been other groups of disaffected Republicans, like Republican Voters Against Trump, and large numbers of former Republican officeholders ( especially DOJ lawyers and military personnel) who have issued letters and statements pointing out that various Trump actions and statements weren’t simply wrong, but in violation of American values and the rule of law.

Ex-Republicans, including conservative “names” like Charlie Sykes and Bill Kristol, established the Bulwark, “a project of Defending Democracy Together Institute, a 501(c)(3) organization.” They are joined philosophically by media figures like Joe Scarborough, who was once a Republican Congressman.

These dissidents from Trumpism are largely drawn from what we might call the brains of the former GOP–strategists, political philosophers (and to be fair, a number of self-regarding blowhards. But still…)

Thoughtful people understand that America needs two responsible, adult political parties. That need is especially significant in a country that has only two major parties. When the political system works properly, both of those parties will be bigger “tents” than today’s GOP, but one will be generally more conservative and one generally more liberal.

People of good will who are focused on the common good will disagree about many things. They will bring different perspectives and life experiences to the nation’s problems. And in what should be an inevitable process of negotiation and compromise, broadly acceptable public policies will be hammered out.

That process is impossible when one party is a fundamentalist cult.

When one of only two political parties is dominated by people who believe that God is not only on their side, but has directed them not to negotiate, compromise or accept any reality other than their preferred one, government cannot function. And that is the alternative reality in which members of today’s GOP live.

As Michelle Goldberg wrote in the New York Times,

The postmodern blood libel of QAnon will have adherents in Congress. Kyle Rittenhouse, a young man charged with killing Black Lives Matter protesters, is a right-wing folk hero. The Republican Party has become more hostile to democracy than ever. Both the Trump and Bush presidencies concluded with America a smoking ruin. Only Trump has ensured that nearly half the country doesn’t see it.

As Paul Krugman observed in that same issue, the GOP has become hostile to the very idea that there’s an objective reality that might conflict with its political goals.

There are certainly similarly ideological, intransigent people among the Democrats–but they don’t control it, and they do not come close to being a majority of that party’s base.

Today, what remains of the GOP is a seething, angry mob. Scholars can research the roots of this devolution; psychiatrists and political psychologists can investigate the personality quirks that predict attraction to whatever it is that being a Republican these days represents. But what is abundantly clear–not just to Democrats and Independents, but to anti-Trump Republicans–is that the current iteration of the Grand Old Party is incapable of participating in governance.

Tantrums are not policy positions.

In my opinion (not that anyone is likely to ask for my opinion), if the United States is to return to a semblance of sanity, or to any adult version of governance, the principled conservatives who have exited the GOP need to form a new center-right party, and leave the current Republican Party to the howling, racist remnants that currently dominate it.

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Elementary Ethics

Yesterday, I posted about generalized social trust–its importance, and some of the reasons for its recent decline. Today, I want to focus on the role played by ethical behavior–in this case, the lack of ethical behavior–in the distressing and accelerating erosion of social trust.

One of the most obvious ethical principles is avoidance of conflicts of interest. I believe it was John Locke who noted that a person (okay, back then he said “a man”) could not be the judge in his own case, and that is really the heart of the rule against conflicts. Elected officials are not supposed to participate in decisions that will affect them personally and directly.

If a state official approves a purchase of land for a highway, and that highway will run through land owned by members of his family, that’s a conflict of interest. If a United States Senator relies upon information not yet shared with the public to sell stock holdings before the news gets out, that’s a blatant conflict. (And yes, Senator Perdue, we’re all looking at you.) When a President refuses to divest himself of business interests that will be directly affected by his decisions in office, that’s a huge departure from ethical behavior.

It is hardly a secret that the Trump Administration has been brazenly unethical. Last year, Pro Publica noted that the administration itself had reported (quietly) numerous ethical breaches. The report noted that President Trump’s ethics pledge had been considerably weaker than previous pledges, but that the government ethics office found violations of even those watered-down rules, particularly at three federal agencies: the Environmental Protection Agency, the Department of the Interior and the National Labor Relations Board.

Just one example: At the NLRB, Republican board member William Emanuel improperly voted on a case despite the fact that his former law firm, Littler Mendelson, represented one of the parties. (The firm represents corporations in labor disputes, and he also voted to eliminate regulations protecting unions.) Conflicts at the EPA have been widely covered by the media; numerous EPA officials chosen by Trump have come from fossil fuel companies and/or the law firms that represent them, and those officials have rolled back nearly 100 environmental regulations.

Then there’s former Interior Secretary Ryan Zinke, who is being investigated by the Justice Department’s public integrity section over allegations he lied to his agency’s inspector general’s office. There are also two separate probes by the Department’s inspector general about Zinke’s ties to real estate deals in Montana and a proposed casino project in Connecticut.

As for Trump, there is at least one lawsuit charging violations of the Emoluments Clause still working its way through the courts–although the current composition of the Supreme Court doesn’t bode well for the outcome.

The White House has refused to impose any sanctions for officials found to have committed ethical violations. That–as observers have noted–has sent a message of tacit approval, not just to the officials violating ethical standards, but to citizens who are aware of the breaches.

It isn’t just government. Cable news companies and social media giants routinely behave in ways that violate both journalism ethics and strictures against conflicts of interest. Facebook employs a rightwing internet site, The Daily Caller, as a “fact checker” despite the fact that the site is supported financially by the GOP. A story originally published by Salon reports that “The Daily Caller has taken tens of thousands of dollars to help Republican campaigns raise money while performing political fact-check services for Facebook.”

The Caller, a right-wing publication co-founded by Fox News personality Tucker Carlson, has also since 2016 sent dozens of emails “paid for by Trump Make America Great Again Committee,” a joint fundraising vehicle shared by the Trump campaign and the Republican National Committee, according to Media Matters.

Media Matters also revealed that The Daily Caller has sent sponsored emails on behalf of a number of Republican candidates this year. Media Matters posted screenshots of the emails, from Sen. Lindsey Graham, R-S.C; Rep. Jim Jordan, R-Ohio; the Senate Conservatives Fund; and the Bikers for the President PAC.

Asking the Daily Caller to fact-check political posts is like asking a wife-beater to evaluate spousal abuse cases.

When ethical principles are routinely flouted by a society’s most powerful institutions, is it any wonder that Americans don’t know who or what they can trust?

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