Public Policy and Governance – Page 140

A Different Kind Of Coup

Remember Darth Vader–aka Dick Cheney–and his theory of the “unitary executive”? Cheney wasn’t the only devotee of expanded power for the Presidency–it turns out that William Barr is a true believer, and far more dangerous than most of us previously realized.

A recent article in the American Prospect is chilling.

I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?….

But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like “I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.

The author notes that the most dangerous presidential power–and one that Trump’s lawyers are currently asserting– is the power to withhold information from Congress and the American people.

Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.

Evidently, the expansion of presidential power–and the corresponding evisceration of Congressional authority–has been a 40-year mission for William Barr.

Barr (one of the original founders of the Federalist Society) worked in the Reagan White House with a group of lawyers who argued that the presidency had improperly lost constitutional powers after Watergate. Edwin Meese even asserted that the president could disregard Supreme Court decisions with which he disagreed.

Even very conservative legal scholars consider these assertions unfounded, and there is virtually nothing in the historical record that would support them. (The entire point of “checks and balances” was to thwart an internal “coup” that would turn the president into either a monarch or a servant of Congress.)

After efforts by Reagan’s lawyers to challenge Congressional oversight failed in the Supreme Court,

Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”

As the author notes,

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.

Throughout his Executive Branch service, Barr–together with Cheney– has insisted that the President can ignore not only Congressional demands for information, but laws with which he disagrees.

The entire article is worth reading, because it gives needed context to the otherwise inexplicable behavior of William Barr today–behavior that is causing significant morale problems among the professionals at DOJ.

The following paragraphs are representative.

BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”….

BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.

I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.

His attacks on separation of church and state are equally dangerous, but that is an issue for another day…

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What Is The Remedy For A McConnell?

An article I read in Vox a month or so ago has continued to bother me. The subject-matter was summed up in the sub-head: “The political system has an answer for a threat like Donald Trump, but none for a threat like Mitch McConnell.”

If Trump often acts like he is above the law, it is only because McConnell lets him. If McConnell decided to lead Senate Republicans in investigating and curbing Trump’s corruption, abuses of power, and obstruction of justice, Trump’s options would be to reform his behavior or be ejected from office.

The article goes on to make a point that is so obvious it is often overlooked. Despite their differences (McConnell is evil, calculating and smart, Trump is mentally disordered, undisciplined and stupid) they do have one thing in common. They are both utterly shameless.

At the core of this is McConnell’s peculiar form of political shamelessness. This is the way McConnell and Trump are more similar than is often appreciated: they have both proven that the range of political action is disciplined less by external constraint than by a politician’s sense of shame — the degree to which they turn back in the face of public criticism, media opprobrium, elite backlash.

It was shamelessness, for instance, that let McConnell refuse to hold a hearing on Merrick Garland and then, grinning, admit that he’d fill a Supreme Court seat if one came up in 2020. McConnell’s predecessors held the same power he did and none of them attempted that maneuver. They weren’t restrained by laws or rules. They were restrained by temperament and a belief that to break the system was to betray the public.

When political scientists talk about “democratic norms,” it is the restraints of temperament and fidelity to tradition and rules that they are referencing. McConnell has demonstrated his rejection of political accountability, and the system has no mechanism for dealing with someone who acts as if the rules simply don’t apply to him.

The Founders designed our form of government with demagogues in mind. That’s why the president is checked by Congress, up to and including the threat of removal. But they believed that Congress would consider itself in competition with the president, that ambition would check ambition. They did not foresee the rise of political parties and the way that would bring parts of Congress into cooperation with the president, that ambition would protect ambition.

The political system has an answer for a threat like Donald Trump but none for a threat like Mitch McConnell.

McConnell isn’t simply ignoring duties imposed by the Constitution; he is– as the Vox article says–shameless. His actions defy our expectations of normal human behavior, not because he is breaking the rules in order to benefit himself (lots of people do that), but because he is publicly flaunting his violations and daring observers to do anything about them.

As Rochefoucauld said, hypocrisy is the tribute that vice pays to virtue. McConnell is withholding that tribute. He doesn’t even pretend to behave honorably; his entire, smug demeanor says “I’m demolishing longstanding norms and traditions because I can and there is nothing any of you can do about it.”

The only remedies available are political: McConnell could lose his Senate race in 2020, or Democrats could take the Senate, removing his authority to do significant damage. Given that he represents Kentucky, the first is unlikely. (Possible, but unlikely.)

The second, I submit, is mandatory. Both he and Trump have to go, and only massive turnout will rid us of both of them.

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Bring In The Clowns..Don’t Bother, They’re Here

If there were any lingering doubts about the lack of seriousness or the intellectual dishonesty of the GOP Representatives who stormed the room in which Impeachment witnesses were being questioned, one fact should put those doubts to rest: the 22 members of the House conducting the interviews is made up of 13 Democrats and 9 Republicans.

As Politico put it: “More than 45 House Republicans — nearly a quarter of the House G.O.P. conference — already have full access to the depositions through their membership on one of the three panels leading the impeachment inquiry.”

Worse still, 13 of the 41 Republican lawmakers who engaged in this bit of theater–who were protesting a supposed lack of transparency in the inquiry–actually sit on committees with the authority to question witnesses and review documents.”

As Huffington Post, among many others, reported, interviews were being held in the Intelligence Committee’s “secure area.” Because the Republicans who engaged in the stunt brought phones and other forbidden electronics into the (awkwardly named) Sensitive Compartmented Information Facility (SCIF), Democrats said the room would now have to be “sanitized.”

“They not only brought in their unauthorized bodies, they may have brought in the Russians and the Chinese,” said Rep. Eric Swalwell (D-Calif.), a member of the Intelligence Committee.

The interviews are being conducted in accordance with House rules, and in a manner consistent with previous inquiries; furthermore, there are prudential reasons to do initial interviews separately and in confidence: for one thing, it denies witnesses the opportunity to co-ordinate their stories.

Not only do the Republicans have access to the information being provided in these interviews, the Democrats have made it very clear that once the initial round of questioning is over, the proceedings will all be made public.

The hostile takeover of the committee room, which was endorsed by GOP leadership ― the chamber’s No. 2 Republican, Minority Whip Steve Scalise (R-La.), even participated in the charade ― is the latest in a string of attempts to distract from the actual Ukraine scandal. Republicans are trying to get voters to dig into their familiar partisan foxholes and disregard any new information.

But storming through the “Restricted Area” doors of the SCIF, bringing their phones, occupying the committee room for hours — even ordering pizza ― are all charades that unbiased voters should see through.

The problem with that last paragraph is the phrase “unbiased voters.” In our polarized political environment, there aren’t many of those, and it is obvious that the GOP’s theatrics are an effort to distract their own voters from very damaging evidence, much of which has already come out. Unfortunately, rebuttals of that evidence are increasingly hard to come by, so in the absence of any substantive defense, they are screaming about the process–despite the fact that it is a process they considered perfectly appropriate when they used it.

As the Daily Beast reported,

House Republicans have held—and even supported—the use of closed door hearings for past congressional investigations, including the select committee that they spearheaded to investigate the 2011 consulate attack in Benghazi. That larger inconsistency and the timing on Wednesday’s gambit struck some Democrats as telling about the direction that the impeachment proceeding is heading.

“When you don’t have the law or the facts, you attack and disrupt the process,” said Rep. Ted Lieu (D-CA). “And you may wonder why is it happening now? Because Bill Taylor gave a devastating opening statement yesterday. They’re freaked out. They’re trying to stop this investigation.”

What they clearly aren’t doing is honestly evaluating the evidence that is emerging. And they sure aren’t subordinating self-interest and partisanship to justice or the interests of their country.

These clowns aren’t amusing.

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Is Resistance Futile?

The Trump administration’s one area of consistency is its determination to lay waste to large areas of American government. Consumer protections have been hollowed out; the Department of Education favors for-profit private schools over the needs of public ones; public lands are being exploited and despoiled; the Department of Justice has been turned into a Presidential lapdog; and decades of diplomacy have been upended.

But arguably, the greatest damage has been to environmental regulation, as the administration has waged a relentless war on science and the EPA. Now, according to the Guardian, at least some scientists are fighting back.

An advisory panel of air pollution scientists disbanded by the Trump administration plans to continue their work with or without the US government.

The researchers – from a group that reviewed the latest studies about how tiny particles of air pollution from fossil fuels make people sick – will assemble next month, a year from the day they were fired.

They’ll gather in the same hotel in Washington DC and even have the same former staffer running the public meeting.

A spokesperson for the group said that Trump’s EPA has significantly weakened its science review process, and that the group intended to meet “as a public service” and “tap our expertise and develop advice which we will share with EPA.”

It’s a noble effort. But…they are fighting people in a position to do substantial harm.

The Trump administration is accused by at least half a dozen whistleblowers of muzzling climate and pollution science.

The air pollution experts follow in the footsteps of a separate group that reassembled to call for the government to better prepare for climate disasters. Their advice will come as EPA conducts a scheduled review of its standards for particle pollution, the tiny specks that enter the lungs and cause breathing and heart problems that can kill.

Gretchen Goldman, research director at the Union of Concerned Scientists, called the regulation the “holy grail” for industry, and she said that’s why the Trump administration wants to weaken it by the end of 2020, before a new president might enter the White House.

Trump officials evidently plan to argue that particle pollution isn’t as bad as previously thought. That would allow the administration to accede to industry arguments and roll back environmental and health protections.

Trump’s EPA ended the particulate matter advisory board nearly a year ago. The agency also replaced many of the academic scientists on a broader science panel with scientists from industry and conservative states.

Earlier this month, EPA chief Andrew Wheeler selected a new group of “non-member consultants” to assist that panel with work on both particle pollution and smog. About half of the new consultants are linked with industry. Their recommendations to the panel will happen behind the scenes, rather than in public meetings.

“Behind the scenes,” environmental protections are being gutted, and respected, non-ideological scientists are being replaced by industry hacks.

Kudos to the scientists who are fighting back by meeting–at their own expense– in defiance of the administration’s willingness to fatten the bottom lines of fossil fuel companies at the expense of the people who breathe polluted air. It is a valiant effort to hold the EPA accountable to its mission, but it’s unlikely to persuade the bottom-feeders who currently run the agency, and whose “mission” is to render it toothless.

Unless the 2020 election returns governance to people who actually believe in governing rather than looting, resistance is probably futile.

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Winner Take All

In Indianapolis, early voting for the upcoming municipal elections just commenced, and my husband and I dutifully cast our ballots in advance of election day.

After all, we could be hit by a bus or otherwise “snuffed out” between now and the actual date of the election. This way, we’re sure our votes for Mayor and City-County Council will count.

Unlike our votes for President.

Each time we participate in the democratic process, I am reminded of all the ways in which that process has become less democratic. Voter suppression, voter I.D. laws, polls closing at 6:00 pm–there are numerous ways that the Republican super-majority in our state has made casting a vote onerous for everyone, but especially for the minority and working-class folks who tend to vote Democratic.

Indiana isn’t alone. There are so many ways that the party that controls a statehouse can erase the votes of citizens in the opposing party–at least, in Presidential contests. The most pernicious–and probably least understood–is “winner take all.”

A recent op-ed from the New York Times explains.

The column began with a discussion of the Electoral College, and the changes in the way it works–especially the manner in which we choose Electors– since it was first conceived by Alexander Hamilton. But as the author noted, today’s Electors aren’t the problem.

What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 million who voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.

The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundred votes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.

What most people don’t realize is that the winner-take-all rule exists nowhere in the Constitution. It’s a pure creation of the states. They can award their electors by congressional district, as Maine and Nebraska do, or in proportion to the state’s popular vote, as several states have considered.

Or, of course, states could award their electoral votes to whoever wins the national popular vote, which would be the result of enough states signing on to the National Vote Compact.

If the Compact cannot reach its target of signatory states having a total of 270 Electoral Votes, my own preference would be a proportionate allocation. If 60% of the votes are cast for candidate A, candidate A gets 60% of the state’s electoral votes–not 100%. People in the political minority in a state would suddenly have an incentive to vote–an incentive that doesn’t exist now. A presidential vote by a Democrat in Indiana or a Republican in California simply doesn’t count.

Allocating votes by Congressional District risks replicating the major flaw of today’s Electoral College–awarding disproportionate weight to less-populated rural areas. (Thanks to population shifts since the Constitution was ratified, today’s Electoral College effectively makes every rural vote worth one and a third of every urban vote.)

The problem is, to work properly, all states would have to make the change to proportional allocation–and that won’t happen. So we’re stuck.

Until we figure a way to get rid of the Electoral College, we will continue to have Presidents elected by–and answerable to–a minority of the voters. I don’t know what you call that, but it isn’t democracy.

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