Public Policy and Governance – Page 150

The Court Betrayed Us: What Can We Do?

Talking Points Memo summed up the dilemma for American democracy in the face of the Supreme Court’s dishonest, cynically partisan decision.

The chief’s opinion in Rucho v. Common Cause doesn’t withstand even basic scrutiny. The court’s majority decided that partisan gerrymandering disputes are “non-justiciable” — that is, the courts can’t intervene in them — because, essentially, courts aren’t equipped to come up with a standard to determine when gerrymanders go too far. Never mind that the lack of what the court calls a “judicially manageable standard” appears to have literally never held the justices back before on any other issue. Never mind also that, as the Brennan Center’s Tom Wolf has pointed out, five different federal courts, relying on the work of respected political scientists, have had little trouble coming up with manageable standards to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland. To Roberts, it’s all a bunch of “sociological gobbledygook.”

It’s hard not to see Rucho as a direct relative of past Roberts court rulings that likewise crippled our democracy, like the Shelby County decision gutting the Voting Rights Act, the Citizens United decision striking down campaign finance rules, the Crawford case upholding voter ID laws, and the Husted opinion allowing purges of voter rolls.

So the Court isn’t going to protect “one person, one vote. The Court leaves in place a tactic that, according to the Cook report, has created today’s political reality: 19 out of 20 voters reside in a non-competitive Congressional District.

That’s where we are. The urgent question is: what do we do?

The easy answer–which is by no means easy to accomplish–is to elect Democrats. Everywhere. City, State and federal offices. That’s not because Democrats are angels, or unwilling to play the gerrymandering game–one of the cases before the Supreme Court was from Maryland, which had been redistricted by Democrats for Democrats. But for a number of reasons (including the fact that Republicans have been much better at partisan redistricting and by far the most numerous beneficiaries of it), Democrats have made fair redistricting an important policy commitment.

If Democrats take the Senate, the House bills Mitch McConnell refuses to hear will pass–Including the all-important H.R.1, the sweeping democracy reform bill that would expand voting access. fix our campaign finance system, and make redistricting fair and transparent. Without a Democratic Senate, however, H.R. 1 won’t pass.

What else can we do?

A local answer that is “doable” in some states is to mount a referendum. These have been very successful in states where such mechanisms are available. Indiana, unfortunately, is not one of those states.

Long-term, what we need in Indiana is an amendment to the state’s constitution. That document currently places responsibility for redistricting with the state legislature–a provision that creates an obvious conflict of interest. It places decision-making in the hands of those whose interests will be affected, allowing lawmakers to choose their voters rather than the other way around.

The problem is, efforts to amend the Indiana Constitution–ideally, to provide that redistricting will henceforth be the responsibility of a nonpartisan or bipartisan commission–must originate with that same conflicted legislature.

I invite my more creative lawyer and political friends to weigh in, but after much “mulling over” (and not an inconsiderable amount of alcohol), here’s the best advice I can come up with for our not-as-Red-as-people-think Hoosier state:

We need a “movement.” (I’m aspiring to Hong Kong sized….)

Furious Hoosiers can build on the coalition already in place under the auspices of Common Cause and the League of Women Voters. We should make lots of noise; we should endorse candidates for the General Assembly who commit to support a constitutional amendment addressing gerrymandering; and we should “call out” legislators who sabotage efforts at representative government.

I realize it won’t be easy. Common Cause has been fighting this battle for nearly 20 years, and Indiana is still the 5th most gerrymandered state in the nation. But over that time, many more people have come to understand the problem. What the forces of change have going for us now is anger–anger at the corruption of Trump and his Administration, anger at the Vichy Republicans who put party before country, and anger at a partisan Court that rewards Mitch McConnell’s willingness to cheat.

However energized the anti-gerrymandering movement, however, there is no escaping the conclusion that the first order of business is turnout in 2020.

Indiana was blue in 2008, partly because a lot of people who didn’t often vote, did. And as I have pointed out before, even Indiana’s extreme gerrymandering won’t protect the GOP super-majority if we have massive turnout.

A tsunami of votes in 2020 can “jump start” a grass-roots effort to make “one person, one vote” a reality.

If that fails, so does democratic self-government.

Happy 4th of July.

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Bless This “Deep State”

A favorite target of Trump defenders is the presumably nefarious “deep state”–the thousands of government workers that sane folks call bureaucrats (when they are being critical) or civil servants (when they are acknowledging their importance).

I teach in a school of public affairs, where a major focus is educating young people for that quaint thing we used to call public service. In addition to technical skills, we place considerable emphasis upon what I sometimes call the “constitutional ethic” and the rule of law–the behaviors citizens have a right to demand from those who serve a legitimate government.

It is belaboring the obvious to note that the Trump Administration doesn’t recognize the existence of ethics–constitutional or otherwise. However, many good people who do know the difference between right and wrong still work in that “deep state” that Republicans love to excoriate, and a group of them are suing to avoid having to carry out Trump’s inhumane border policies that. force asylum seekers to stay in Mexico or be put in jail here while awaiting hearings.

A group of asylum officers whose job is to administer policies like that have filed a brief in the case making a powerful and passionate case against a policy that they have to implement but they find morally unconscionable.

U.S. asylum officers slammed President Trump’s policy of forcing migrants to remain in Mexico while they await immigration hearings in the United States, urging a federal appeals court Wednesday to block the administration from continuing the program. The officers, who are directed to implement the policy, said it is threatening migrants’ lives and is “fundamentally contrary to the moral fabric of our Nation.”…

The lawsuit asserts that Trump’s policy goes against what has been America’s long-standing view that the country should welcome asylum seekers and refugees escaping persecution in their home countries. The United States has been seen as a safe haven ever since the arrival of the Pilgrims in the 17th century. In the court pleadings, plaintiffs argue that Trump’s policy “is compelling sworn officers to participate in the widespread violation of international and federal law” — “something that they did not sign up to do when they decided to become asylum and refugee officers for the United States government.”

“Asylum officers are duty bound to protect vulnerable asylum seekers from persecution,” the American Federation of Government Employees Local 1924, which represents 2,500 federal workers, including asylum officers, said in a 37-page court filing with the U.S. Court of Appeals for the 9th Circuit in California. “They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”

When Donald Trump became President (note I do not say “was elected” since I agree with Jimmy Carter), I had several messages from former students now working for the federal government. They were conflicted–should they stay, and try to protect the public interest, or leave for jobs in the private or non-profit sectors?

As I told each of them, that was a decision only they could make.

Those who decided to remain, however, stayed because they were determined to protect the rule of law and the integrity of public service at a time when those in power–and those supporting this lawless administration–sneer at such “high flown” concepts.

If the United States emerges from this shameful, corrupt and profoundly un-American episode in our national story, we will owe those “deep state” protectors of our ideals an enormous debt of gratitude.

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Turnout, Vote-By-Mail And Gerrymandering

The Supreme Court, in an indefensible 5/4 ruling, has declined to stop political parties from engaging in extreme gerrymandering. (Thankfully, allowing the Trump Administration to add a citizenship question to the census was evidently a bridge too far….)

Readers of this blog have read my previous analyses of partisan redistricting, and I won’t repeat them here. I will simply link to the opinion, including Justice Elena Kagan’s dissent, with which I entirely agree.

That said, here we are. The Court has narrowly declined to enforce “one person, one vote,” and the remedy for that shameful refusal must come from voters. That means that the 2020 election becomes even more important than it already was–impossible as that may seem.

As I have noted before, in order to overcome a gerrymander, the “minority party” in a district that has been drawn to be safe for the majority party needs massive turnout. That’s hard, but it can be done. In the 2018 midterms, Democrats in numerous districts turned out in sufficient numbers to overcome the considerable advantages built in by the GOP.

Although it may be the most effective, gerrymandering is only one of the voter suppression tactics employed by Republicans who recognize that they are increasingly a minority party. If the Court will not provide a tool for challenging partisan redistricting, Democrats–together with independents and any remaining rational Republicans–must engage in grass roots efforts that encourage, rather than suppress, turnout.

One of the most effective of those efforts is conducting the vote by mail, as this recent article documents.

“The ballot belongs to the voter, not the government,” said Phil Keisling, the former secretary of state of Oregon. “As long as it can be done with safety and integrity, it’s the obligation of the government to get it to me. It’s not my responsibility to qualify for it and get it.”

Many states are taking that goal seriously, and to meet it, they are taking steps to abolish the traditional polling booth….

In Washington, Oregon and Colorado — and any minute now, Hawaii, where the governor is about to sign a new law — there are no longer traditional polling places. (California is also rolling this out county by county; by the 2020 election, half of voters will get a ballot at home.) The states mail ballots in bar-coded envelopes to every registered voter several weeks before the election. It’s automatic; the voter doesn’t need to request it.

Those states are blue or purple, but home voting is also growing in red states. Voters in 28 of Utah’s 29 counties automatically get ballots at home. Nebraska and North Dakota also use it, to varying degrees. And nearly half of states allow certain elections to be conducted entirely by home voting. It allows voters to mark their ballots at their leisure and either mail it back or drop it in a ballot drop box. (Most use a drop box, which is why it’s not entirely accurate to call it vote-by-mail.) Some states allow voters to track the progress of their ballots electronically.

Not surprisingly, home-voting states have high turnout, and there is some evidence that when political subdivisions shift to voting by mail, turnout increases.

Between the midterm elections in 2014 and 2018, Utah rolled out home voting and had the greatest rise in turnout of any state. The five California counties that switched to home voting in 2018 increased their turnout more than the rest of the state.

Obviously, there is not time between now and November of 2020 to institute vote-by-mail or the myriad other changes that would increase turnout by making voting more convenient–making Election Day a holiday, instituting same-day registration, etc. The challenge for those of us who are appalled by the mounting efforts to deny citizens a genuine voice in governance (efforts that have included packing the courts with rightwing ideologues) is obvious: we must devote massive time and effort to getting out the vote in 2020.

We need a citizen tsunami sufficient to overcome the blatantly rigged districts the Supreme Court has declined to rule unconstitutional.

Huge turnout would likely allow Democrats to eject not just the corrupt and unfit Trump Administration, but also wrest control of the Senate from McConnell, and clean out the GOP’s state and local enablers. Americans can then focus grassroots efforts on electing politicians who will commit to drawing fair districts.

If that tsunami is big enough, it might even allow old-fashioned Republicans appalled and dispirited by what the GOP has become to retake their party.

If that doesn’t happen…history will record Mitch McConnell’s capture of the Supreme Court and the GOP’s unhindered voter suppression as a successful coup d’etat.

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We The Guinea Pigs

We Americans are obsessed with the content of our food–but generally, for all the wrong reasons.

Trendy urbanites worry about genetically modified foods, ignoring the fact that pretty much everything humans have consumed for the past couple of centuries has been genetically modified (we call those hybrids). Popular magazines peddling the diet of the moment wax poetic about eating like a caveman, or avoiding carbohydrates, or….the list is endless.

What we don’t tend to obsess about is the very real damage being done to public health thanks to our abiding faith in herbicides and pesticides.

The Guardian recently had an eye-opening article.Here’s the lede:

The recent headlines announcing billions of dollars in damages to people who have gotten cancer after using Roundup are just the tip of a very large iceberg. There are over 1,000 lawsuits against Monsanto’s parent company, Bayer, waiting to be heard by the courts. Beyond concerns about that specific glyphosate-based weedkiller, we should be talking about the innumerable other potentially punishing chemicals in our food system.

After all, our food and our health are deeply connected. American healthcare spending has ballooned to $3.5tn a year, and yet we are sicker than most other developed countries. Meanwhile, our food system contains thousands of chemicals that have not been proven safe and many that are banned in other countries.

As the article points out, unlike European systems, the American regulatory system (routinely criticized by business interests as overactive) doesn’t operate on what is called the “precautionary principle.” Potentially hazardous substances aren’t banned from our foods; instead, chemicals are typically considered innocent until proven guilty.

That’s a great principle in criminal justice, but not so great when applied by the FDA.

As the article puts it,

As a result, we are the guinea pigs in our own experiment. And our desire for food that is fast, cheap and abundant only compounds the speed with which we are introduced to new, untested substances.

Much of the problem can be attributed to our disdain for the natural world, and the quintessentially American belief that we can always bend nature to our wishes.

For decades we’ve operated on the principle that if we can selectively kill off the unwanted parts of the natural world, we can control our futures. Farmers operate that way, but also homeowners, highway crews and landscapers. We spread herbicides, fungicides, pesticides, insecticides, fertilizers, antibiotics, hormones and various other toxins which kill everything around. Even good things.

We’re becoming aware of the loss of what we can see: bees, butterflies, the diverse plant life of our ecosystems. We also need to worry about the invisible microbiome and fungi in the soil that nurture life above, store carbon and absorb water.

Not only have we not improved on nature, what the herbicides, antibiotics and pesticides have done is breed bugs, weeds and disease increasingly resistant to our control.

And our chemical onslaught will have long-term effects. Our fertilizers and pesticides leach into groundwater and streams, head out to sea and create dead zones and red tides. They also leach into our drinking water. Take Atrazine, a weedkiller made by the Swiss company Syngenta (and also banned in Switzerland), which is found in wells all across America. The list of potential health risks of Atrazine causes is too long to list in its entirety, but it includes cancer, poor birth outcomes and developmental defects.

The next time you hear some under-educated ideologue ranting on about the evils of regulation, you might think about the real issue, which isn’t whether to regulate, but how and what to regulate.

We might begin by respecting science and expertise, and by electing people who will fill our agencies with people who actually know what they are talking about–people who care about safeguarding the public good–rather than anti-science camp followers who are firmly ensconced in the pockets of political donors.

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Promises Promises…

Trump promised to revive coal mining. Bernie is once again promising to eliminate student debt. Bernie’s goal is a lot more attractive, but his strategy is equally delusional.

Trump, of course, is too dumb–and unconcerned–to know how energy markets work; he just throws red meat to his equally-uniformed base. Is that what Bernie is doing, too? Playing to his core voters without realizing how unrealistic/unworkable his promises are? I doubt that. Unlike Trump, he’s pretty smart–and he actually knows how government works.

And that’s worse, because it means he has to know his plan is an absolute non-starter.

Student debt is admittedly an enormous problem, both for the students who spend years burdened by it and for the economy, where it constitutes an enormous drag on consumer spending and economic growth. Policymakers definitely should do something to alleviate the burden, but the pertinent question is: what sorts of proposals make sense?

What would a workable solution look like?

Economists point out that simply canceling all student debt ends up helping high-income families most, which seems like a less-than-prudent use of tax dollars. Estimates are that the top 40 percent of earners would receive about two-thirds of the benefits.

Sanders has made a similar proposal before, and David Honig, a friend (who is an exceptional lawyer), took a “deep dive” into that previous plan. I am appending his analysis. It’s long, and it’s legalistic/technical, but it also demonstrates why political promises sound so much better when they aren’t closely examined.

I’ve bolded language that I think is particularly important…Here’s David’s summary.

________________________–
Time for a breakdown. Here we go:

TITLE I—FEDERAL-STATE PARTNERSHIP TO ELIMINATE TUITION

SEC. 101. GRANT PROGRAM TO ELIMINATE TUITION AND REQUIRED FEES AT PUBLIC INSTITUTIONS OF HIGHER EDUCATION.

That’s our first title, and what it tells you is that this isn’t a Federal program alone, it’s a State and Federal program. In turn, that means that States have to sign on. The King v. Burwell precedent from the ACA litigation is going to still control, and that means we’re not talking about free tuition everywhere, just in blue States.

(a) Program Authorized.—
(1) GRANTS AUTHORIZED.—From amounts appropriated under subsection (f), the Secretary of Education (referred to in this section as the “Secretary”) shall award grants, from allotments under subsection (b), to States having applications approved under subsection (d), to enable the States to eliminate tuition and required fees at public institutions of higher education.
(2) MATCHING FUNDS REQUIREMENT.—Each State that receives a grant under this section shall provide matching funds for a fiscal year in an amount that is equal to one half the amount received under this section for the fiscal year toward the cost of reducing the cost of attendance at public institutions of higher education in the State.

That’s your formula — 2/3 Fed, 1/3 State. So if Sanders’ own estimate is right, that the cost to the Feds is $750B over 10 years, that means the States are going to have to come up with $375B, and they can’t tax Wall Street.

So how much do they get? Well, that’s interesting, and the legislation quite clearly institutionalizes the vast differences in education spending from State to State:

(b) Determination Of Allotment.—

This is how the dollars are determined.

(1) INITIAL ALLOTMENT.—For fiscal year 2016, the Secretary shall allot to each eligible State that submits an application under this section an amount that is equal to 67 percent of the total revenue received by the State’s public system of higher education in the form of tuition and related fees for fiscal year 2016. For each of fiscal years 2017 through 2019, the Secretary shall allot to each eligible State that submits an application under this section—
(A) an amount equal to the allotment the State received for fiscal year 2016, plus
(B) if the State provides additional funds toward the cost of reducing the cost of attendance at public institutions of higher education in the State for any of such fiscal years that is more than the matching funds requirement under subsection (a)(2), an amount equal to such additional funding provided by the State, which amount provided by the Secretary may be used for the activities described in subsection (e)(2).

Ummm, wow. So the State gets 2/3 of the revenue it received in the form of tuition and related fees? That, by the plain language of the statute, would exclude money spent by the State from general funds, lottery funds, special education funds, etc., and include only tuition and related fees. So States that subsidized education the most would get the least? That’s how it reads. If so, this is a total non-starter, and the legislation is a complete sham — a promise written in unrealistic numbers to make it seem possible. If that is really what is intended, kill it now. Just forget it, and stop even pretending it was realistic.

But, in the interest of fairness, let’s assume it doesn’t really mean what it says, and that what it is really intended to do is replace all State spending on higher education. Okay? Is that fair, at least for the sake of discussion?

Even under that reasoning, there are problems. California’s budget is $10.5B, while Vermont’s is $84M. More important, New Hampshire is $104/capita, while Wyoming is $606/capita. So we start with that spending (assuming it’s not really tuition, which would make the whole thing a farce), and see right away that the new Federal program would instantly endorse unequal spending decisions made State-by-State, and pay for those decisions with Federal money. How long do you think that would last without challenge, either in Congress or in the courts? Yeah, not very long. If the money is coming from DC, paid via New York, what justification is there to spend so much less in one State than another?

And for years after 2016, while the States can increase their spending, they only get a one-to-one match in Federal funds, rather than the initial two-to-one match, making future State spending far more expensive than past State spending.

(2) SUBSEQUENT ALLOTMENTS.—Beginning in fiscal year 2020, the Secretary shall determine the median allotment per full-time equivalent student made to all eligible States under this section for fiscal year 2019 and incrementally reduce allotments made to States under this section such that by fiscal year 2025, no State receives an allotment under this section per full-time equivalent student that exceeds the median allotment per full-time equivalent student made under this section for fiscal year 2019.

Oh look, starting in 2020 there is an “evening out” of the money. Except, it comes down, instead of going up. So a State that was spending a lot of money on education gets a whole lot less, dropping the median, while a State that was spending less doesn’t get more. The median just keeps dropping to the lowest common denominator.

Do people really think this is a good idea?

(c) State Eligibility Requirements.—In order to be eligible to receive an allotment under this section for a fiscal year, a State shall—

Okay, so what does a State have to do to stay in the system?

ensure that public institutions of higher education in the State maintain per-pupil expenditures on instruction at levels that meet or exceed the expenditures for the previous fiscal year;

You have got to be kidding me! So one-half of the States, the ones actually trying to fund their higher education, get less starting in 2020, but the State has to keep paying just as much? So now the funding will go down from 2-1 to perhaps 1-1, or even less? This is insane. In the meantime, they have to do just as much with even less than they had before? So the University of California system is going to have funding from the feds that matches funding to Missouri, but has to put just as much California money into it, while trying to maintain their standards? Interesting.

ensure that tuition and required fees for in-State undergraduate students in the State’s public higher education system are eliminated;

Hey guys, we get less money, but we can’t charge tuition. Terrific!

(3) maintain State operating expenditures for public institutions of higher education, excluding the amount of funds provided for a fiscal year under this section, at a level that meets or exceeds the level of such support for fiscal year 2015;

Okay, this one’s not a big deal. Except, it hints that when it said “tuition” up above, it really meant “tuition.” And that’s nuts.

(4) maintain State expenditures on need-based financial aid programs for enrollment in public institutions of higher education in the State at a level that meets or exceeds the level of such support for fiscal year 2015;
(5) ensure public institutions of higher education in the State maintain funding for institutional need-based student financial aid in an amount that is equal to or exceeds the level of such funding for the previous fiscal year;

Huh? Why do they have to spend just as much on need-based student financial aid if students don’t have to pay tuition? Somebody please explain this one.

(6) provide an assurance that not later than 5 years after the date of enactment of this Act, not less than 75 percent of instruction at public institutions of higher education in the State is provided by tenured or tenure-track faculty;

A lovely goal, but the money just dropped through the floor for the highest-paying half of the States in the country.

(7) require that public institutions of higher education in the State provide, for each student enrolled at the institution who receives for the maximum Federal Pell Grant award under subpart 1 of part A of title IV of the Higher Education Act of 1965 (20 U.S.C. 1070a et seq.), institutional student financial aid in an amount equal to 100 percent of the difference between—
(A) the cost of attendance at such institution (as determined in accordance with section 472 of the Higher Education Act of 1965 (20 U.S.C. 1087ll)), and
(B) the sum of—
(i) the amount of the maximum Federal Pell Grant award; and
(ii) the student’s expected family contribution

So in addition to the funding discussion above, now they have to make up the difference between costs and Pell grant money? This is starting to sound like a whole lot of new unfunded mandates, the kind the Supreme Court doesn’t like.

and
(8) ensure that public institutions of higher education in the State not adopt policies to reduce enrollment.

Same enrollment, less money.

(d) Submission And Contents Of Application.—For each fiscal year for which a State desires a grant under this section, the State agency with jurisdiction over higher education, or another agency designated by the Governor or chief executive of the State to administer the program under this section, shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require.

Only States that want to participate will need to submit applications. Guess which States will want to participate? The Democratic States that spend low amounts of money on higher education. The higher-paying States, even if they’re blue as blue can be, won’t want any part of it, for the reasons noted above.

(e) Use Of Funds.—

How do they get to use the money?

(1) IN GENERAL.—A State that receives a grant under this section shall use the grant funds and the matching funds required under this section to eliminate tuition and required fees for students at public institutions of higher education in the State.

First, reduce tuition. Okay, got it.

(2) ADDITIONAL FUNDING.—Once tuition and required fees have been eliminated pursuant to paragraph (1), a State that receives a grant under this section shall use any remaining grant funds and matching funds required under this section to increase the quality of instruction and student support services by carrying out the following:
(A) Expanding academic course offerings to students.
(B) Increasing the number and percentage of full-time instructional faculty.
(C) Providing all faculty with professional supports to help students succeed, such as professional development opportunities, office space, and shared governance in the institution.
(D) Compensating part-time faculty for work done outside of the classroom relating to instruction, such as holding office hours.
(E) Strengthening and ensuring all students have access to student support services such as academic advising, counseling, and tutoring.
(F) Any other additional activities that improve instructional quality and academic outcomes for students as approved by the Secretary through a peer review process.

Second, you have to put any additional money back into education. Savings may not be spent elsewhere. Not even State money. So the Feds are now controlling the State use of its budget, even if the State is meeting all its obligations. Interesting. How long do you think that will last in court?

(3) PROHIBITION.—A State that receives a grant under this section may not use grant funds or matching funds required under this section—
(A) for the construction of non-academic facilities, such as student centers or stadiums;
(B) for merit-based student financial aid; or
(C) to pay the salaries or benefits of school administrators.

Oh for ____’s sake! Do we really think school administrators, the people who enroll students, who handle disciplinary issues, who manage dormitories, and a thousand other things, aren’t part of running a successful university? Is there some imaginary university where the kindly professor meets the students under the ol’ oak tree to impart knowledge, while they nibble their brown-bag lunches?

(f) Authorization And Appropriation.—There are authorized to be appropriated to carry out this section $47,000,000,000 for fiscal year 2016, and such sums as may be necessary for each of the fiscal years 2017 through 2025.

And the cost? $47B the first year, and whatever is necessary for the years to follow.

Conclusion

There you go. That’s Sanders “free college” plan.

It doesn’t sound quite as great to me when you look at the details as when you put it on a bumper sticker.

That reminds me–how are all those new coal mines doing?

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