Category Archives: Public Policy and Governance

Critical Race Theory

I was really hoping I could avoid ever posting about the asinine debate over Critical Race Theory–but the other day, I saw that our bootlicker-to-the-Right Attorney General had entered the fray, a clear sign that the racists and their enablers think they’ve found a winning formula for 2022.

So I guess I do need to weigh in, in a (probably useless) effort to clarify what all the noise is about.

I didn’t encounter Critical Legal Studies and its cousin, Critical Race Theory until I was a college professor. Both approaches were–and are–relatively arcane, primarily the preoccupation of a subset of legal scholars. As Heather Cox Richardson recently explained it,  Critical Race Theory was a theory conceived in the 1970s by legal scholars trying to understand why the civil rights legislation of the past twenty years had not eliminated racial inequality in America.

They argued that general racial biases were baked into American law so that efforts to protect individuals from discrimination did not really get at the heart of the issue. While this theory focused on the law, it echoed the arguments historians have made—and proved—since the 1940s: our economy, education, housing, medical care, and so on, have developed with racial biases. This is not actually controversial among scholars.

While CRT explicitly focuses on systems, not individuals, and while it is largely limited to legal theory classes rather than public schools, Republicans have turned this theory into the idea that it attacks white Americans and that history teachers are indoctrinating schoolchildren to hate America. In the past three and half months, the Fox News Channel has talked about CRT nearly 1300 times.

I suppose I shouldn’t be shocked to discover that people who couldn’t define either “socialism” or “capitalism” if their lives depended on it are having trouble distinguishing between their fear of being “replaced” by Jews and scary Black people and a graduate-level study of how and where racial stereotypes are reflected in the country’s legal system. (I guess they never heard of redlining…)

Assertions that CRT is being taught in America’s elementary and high schools is ludicrous–as I have been complaining pretty much forever, schools aren’t even teaching the most basic concepts required for civic literacy, let alone a theory that requires a familiarity not just with the Constitution and Bill of Rights, but with significant elements of America’s legal structures.

The GOP-hyped hysteria over Critical Race Theory is just another effort to mask garden-variety racism  by pretending that the fight is really about something else. It takes its place beside the party’s rejection of “political correctness” (i.e., I refuse to abide by your social expectation of basic civility) and “cancel culture” (i.e., I should be free to spew my venom but you shouldn’t be free to respond by signaling your disapproval).

 One of the biggest disappointments of my adult life has been my reluctant recognition of the extent and depth of American racism, and the degree to which it infects our politics. That said, despite the evidence of the past few years–the hysterical reaction to Obama’s election, the subsequent election of an ignorant blowhard willing to demonize the “other”– I  still refuse to believe that the majority of Americans are in thrall to hate and fear.

The problem is, the rabid racist minority–thanks to gerrymandering,  vote suppression (and let’s be honest, voter apathy) and the Electoral College– has seized outsized control of America’s government. And when it comes to turnout, rage is a great motivator. If dishonest and dishonorable politicians can drum up fear and anger by emphasizing culture-war issues like the “threat” of a mischaracterized CRT, they may yet overwhelm the majority.

We live in an incredibly dangerous time.

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Cost Of Doing Business

Politico recently reported on a proposed law in Maine that would tax food wrappers. Before you react (either by yawning or rolling your eyes), consider the likely motive for imposing such a tax, and the potential implications.

Maine’s bill is an effort to recoup at least some of the costs governments incur when recycling tons of packaging waste. Managing America’s trash is expensive, its costs continue to escalate, and a significant percentage of those costs are paid with tax dollars. 

According to the report,  business groups actually asked lawmakers to tax food wrappers and containers. Industry groups did emerge to oppose certain parts of the proposal–mainly, who would control the tax revenue and how it’s spent. Packagers and consumer brands wanted authority to manage the money and use it exclusively for recycling. Maine regulators and their allies in the Legislature wanted the revenues to reimburse municipalities for hauling waste to landfills, too.

The industry won that battle, and the bill–that has now passed– designated revenues for recycling. This legislation appears be the first of its kind in the country; it could give momentum to a broader push to curb plastic waste and rationalize a recycling system that is outdated and varies from town to town. 

What I find really hopeful, however, is that I see  this as an (admittedly small) step toward dealing with the serious challenges posed by  externalities.

As I have often noted, I am a proponent of markets and capitalism–properly understood and properly regulated. The usual description of a working–and workable–market is that it is characterized by transactions between willing buyers and willing sellers  who are each in possession of all  information relevant to the transaction. That description is an accurate depiction of the ultimate purchase and sale, but it elides other, equally important assumptions–including the assumption that the pricing of a good accurately reflects the costs of its manufacture plus a reasonable profit.

That assumption isn’t necessarily accurate.

If I am manufacturing widgets, and the process involves the use or creation of a pollutant, the cost of production–and the price charged to the consumer– should include the expense of properly disposing of that pollutant. If –instead of following the rules for such disposal– I dump my contaminated waste in the local river (where it will have to be cleaned up by adjacent municipalities) I can price my widgets more advantageously than widget manufacturers who follow the rules and pay to dispose of their waste properly.

In a properly operating marketplace, the price of goods will reflect the complete cost of their manufacture–the expense of raw materials, all costs of turning those raw materials into a salable item, and the associated expenses of marketing and packaging. Appropriate regulations are those aimed at preventing some companies from gaining unfair advantage by “offloading” a portion of what should be their costs onto unsuspecting taxpayers.

Properly operating markets benefit us all. What doesn’t benefit us are (1) markets in clearly inappropriate economic sectors, like health care, where there is a huge (and unbridgeable) disparity in information and urgency between the parties to a transaction, and (2) inadequately or improperly regulated markets that allow–or even encourage–companies to profit by cheating.  

The packaging issue being addressed in Maine isn’t an instance of cheating; technically, I doubt that the need to recycle packaging is even a true externality–at least, as economists would categorize it–but the need to recycle packaging waste clearly does impose a cost that is currently being covered by taxpayers rather than manufacturers.

Maine appears to be the first state to address the allocation of that expense, and it will be interesting to see how many other states (if any) follow suit. At the very least, efforts of this sort raise awareness of an issue that is all too easy to ignore.

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More Than One Way To Skin The Filibuster Cat…

Americans who may never have heard of the filibuster–or who were previously only dimly aware of that parliamentary mechanism–are passionately debating its continued existence. One reason so many of us favor its elimination is that the filibuster in its current iteration bears little or no resemblance to the original rule.

Whatever the original purpose of the filibuster, for many years its use was infrequent. For one thing, it required a Senator to actually make a lengthy speech on the Senate floor–unlike today. In its current form, it operates to require government by super-majority–it has become a weapon employed by extremists to hold the country hostage.

A bit of history is instructive.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules, making it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans  from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

There is really no principled argument for maintaining the filibuster in its current iteration. But there may be alternatives to simply jettisoning it, as Ezra Klein points out in a recent column about Joe Manchin.

Klein is clear-eyed about Manchin’s purported reasons for maintaining the filibuster– devotion to a long-gone “bipartisanship.”

At his worst, Manchin prizes the aesthetic of bipartisanship over its actual pursuit. In those moments, he becomes a defender of the status quo and, paradoxically, an enabler of Republican partisanship. But over the past 24 hours, a plausible path has emerged through which Manchin could build a more cooperative and deliberative Senate. It’s narrow, but it’s there.

Part of the strategy relies on changing the rules. Manchin has said, over and over again, that he will not eliminate or weaken the filibuster. I wish he’d reconsider, but he won’t. The possibility remains, however, that he will strengthen the filibuster.

Klein points out how dramatically the filibuster has morphed from its original form, and considers–in lieu of simply getting rid of it–how it might be returned to something approximating its historical form.

It’s possible to imagine a set of reforms that would restore something more like the filibuster of yore and rebuild the deliberative capacities of the Senate. This would begin with a variation on the congressional scholar Norm Ornstein’s idea to shift the burden of the filibuster: Instead of demanding 60 votes to end debate, require 40 (or 41) to continue it.

That would return the filibuster to something more like we imagine it to be: Impassioned minorities could hold the floor with theatrical speeches, shining public attention on their arguments, but the majority could end debate if the minority relented. To sustain this kind of filibuster would be grueling, which is as it should be. The filibuster is an extraordinary measure, and it should require extraordinary commitment to deploy.

The majority, for its part, would have to carefully weigh the consequences of proceeding with partisan legislation: They would gamble weeks or months of Senate time if they chose to face down a filibuster, with no guarantee of passage on the other end. A reform like this would demand more from both the majority and the minority and ignite the kinds of lengthy, public debates that the Senate was once known for.

In leaked audio published by The Intercept on Wednesday, Manchin appeared to favor exactly this kind of change. “I think, basically, it should be 41 people have to force the issue versus the 60 that we need in the affirmative,” he said.

I think that most of us who are exasperated by the constant, dishonest and sneaky use of the filibuster in its current form would be willing to give this modification a try. 

Fingers crossed.

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Mitch McConnell Issues A Threat

This morning, I’ve created a theoretical exercise. it’s intended to put you in the proper frame of mind to consider the latest outrage from Mitch McConnell–aka the most dangerous man in America.

Assume we are watching a TV western. The sheriff–having won a hard-fought election in his scruffy border town by promising to keep the residents safe from (unspecified) “bad guys”–issues a proclamation promising to deal severely with law-breakers. Well, maybe not all law-breakers. He’ll deal severely with any law-breakers who supported his opponent in the election.

If someone who supported him breaks the rules, however, he says he’ll look the other way.

If we encountered  a show with that plot device, we’d be incredulous–not only is that not what we mean when we champion law and order, we’d turn the TV off while muttering about the ridiculous premise–after all, when TV bad guys decide to engage in nefarious acts, they don’t typically broadcast that intention. If that storyline did appear in our fictional TV episode, we’d expect the local folks–including those who’d supported the sheriff– to rise up and run him and his co-conspirators out of town, thereby reinforcing the primacy of justice over partisanship.

Which brings us to Mitch McConnell.

After the Senate confirmed Judge Ketanji Brown Jackson to the Court of Appeals for the District of Columbia (Jackson, a Black female jurist, will replace Merrick Garland), McConnell reacted with a threat.

In an interview with the conservative radio commentator Hugh Hewitt, Mr. McConnell said Republicans would most likely block any Supreme Court nominee put forward by Mr. Biden in 2024 if Republicans regained control of the Senate in next year’s elections and a seat came open.

Along with most lawyers, I was astonished and infuriated in 2016 when McConnell brazenly refused even to consider Obama’s Supreme Court nomination of Merrick Garland, piously intoning that it was “too close to the presidential election,” although that election was months away and nominees had previously been confirmed to the Court during similar timeframes..

As we all saw, that excuse was shown to be the partisan hogwash it was when Trump nominated, and McConnell pushed through,  Amy Coney Barrett a mere six weeks before the November election.

Republicans who had banded together in 2016 at Mr. McConnell’s urging and declared that it was not appropriate to confirm a Supreme Court nominee during an election year had remarkable conversions in the case of Judge Barrett. The Republican leader insisted that he had not changed his position, arguing that because Mr. Obama was a Democrat, it was entirely appropriate for members of his party to block his nominee.

“What was different in 2020 was we were of the same party as the president,” Mr. McConnell told Mr. Hewitt. “And that’s why we went ahead with it.”

Partisan misuse of power, in McConnell-land, is “entirely appropriate.”

America without the rule of law would not be America. As far short of our aspirations and stated beliefs as this country has often fallen, it still seems absolutely incomprehensible that a high-ranking, powerful political figure would publicly–proudly!– trumpet his intention to ignore so foundational a principle.

I often refer to the rule of law, assuming readers understand its importance. The shorthand we all hear is: the same rules apply to everyone. Maybe that’s too abstract.

As an educational site maintained by the US Courts defines the concept:

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated, Equally enforced, Independently adjudicated; and consistent with international human rights principles.

The Trump administration waged an unrelenting attack on the rule of law, culminating with Trump’s pardons of some of its sleaziest transgressors. But even Trumpers as morally and ethically compromised as Bill Barr drew the line at publicly announcing their disdain for fair and equal application of the rules.

McConnell is the sheriff from my mythical TV show–the guy who publicly announces that the rules don’t matter–that whenever possible, he will ignore fundamental fairness and the national interest, and exercise power solely to privilege his partisans.

In a very real sense, he has promised  a coup. 

Michael Flynn must be so pleased.

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Money Makes The World Go Round…

Follow the money…

A recent study found that a dozen “mega donors” contributed one in every 13 Dollars raised by political campaigns since 2009. The study was undertaken in an effort to determine whether and how the role of the super rich had grown following the loosening of restrictions on political spending by the U.S. Supreme Court more than a decade ago.

The growing influence of multimillion-dollar megadonors has been accompanied by another, competing trend: a surge of small online donations to politicians of both parties. Those contributions — in $5, $10 and $25 increments — have given Democrats and Republicans an alternate source of money beyond the super rich.

Still, the study found that the top 100 ZIP codes for political giving in the United States, which hold less than 1 percent of the total population, accounted for roughly 20 percent of the $45 billion that federal candidates and political groups raised between January 2009 and December 2020. The study used data from the Center for Responsive Politics, which compiles figures from the Federal Election Commission.

The study didn’t include state-level contributions, so the picture that emerged is incomplete, but the overall message is clear enough: money matters disproportionately in American politics.

The amount of money at a candidate’s disposal isn’t necessarily dispositive; as a a friend who used to be a political strategist has always maintained, a good candidate with a good message who raises at least enough money to get that message out can defeat an opponent with a much larger campaign war-chest. But anyone who dismisses the significance of campaign funding is delusional.

That said, trying to get a handle on campaign finance is a fraught exercise, and many seemingly good ideas end up generating unanticipated–and negative–consequences.

Take the reforms that have focused on limiting candidate spending.  It sounds fair, but imposing uniform limits tend to work in favor of incumbents, because most Incumbents begin the election cycle with high name recognition. Challengers need to build that recognition (which is one reason why celebrities with no government experience have a leg up in such contests).  Once a non-famous challenger  spends enough to build that name recognition, campaign spending limits kick in. Typically, that’s the point at which the incumbent is just beginning to spend. In other words, just as a challenger starts to become competitive, spending limits choke off political competition.

So what would effective, workable reform look like? Previous efforts–caps on contribution amounts, reporting requirements and the like–have been circumvented by canny lawyers. The hope that small donations facilitated by the Internet would be a countervailing force has dimmed, as it has become apparent that it is easier for fringe candidates to generate those funds from equally fringe voters (evidently, Marjorie Taylor Greene has taken in very substantial amounts). It would be great if we could set time limits for campaigning, but that would probably help incumbents as well–and in any event, run afoul of  the First Amendment.

Given the rules as they exist, the only counter to the influence of money in American politics is the franchise–and the multitude of civic and political organizations that are working to expand voter turnout. As we approach the 2022 midterms, Republicans are working furiously to counter those efforts, and as I have noted in previous posts, the GOP goes into each election cycle with a number of structural and financial advantages, not to mention a media ecosystem supporting–nay, trumpeting– their messaging. (And no, MSNBC tilts left but is absolutely not a counterweight to Fox, et al. Accusations to the contrary are assertions of a false equivalency.)

Democratic systems are supposed to reflect the will of the people. Political actors who enjoy enough resources and structural advantages can and do ignore and subvert that will. How we even the playing field, how we facilitate “fair fights” and prevent donations from drowning out the voice of  the public is by no means clear.

But at the end of the day, money really does make the political world go around….and we need to figure out a way to lessen its impact.

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