Category Archives: Public Policy and Governance

Why Term Limits Aren’t The Remedy

We Americans are really, really attracted to what I call “bumper sticker” solutions to our problems–pithy “fixes” that you can slap on a bumper sticker. One of the most popular is Congressional term limits, which would rid us of doofuses like Louie Gohmert, but also deprive us of the invaluable institutional memory and wisdom of a Richard Lugar, or the savvy of a Nancy Pelosi.

My primary concern about term limits as a “quick and easy” solution to bad lawmaking is  institutional. When a new Congressperson gets to D.C., he or she immediately looks for seasoned staff members. There is a small army of aides, lawyers, content specialists and the like who rotate among Congressional offices as this or that Senator or Representative retires or loses an election. They are knowledgable about the ins and outs, the “way things work,” and they are invaluable to a newbie just learning the ropes.

If that congressperson is compelled to leave office just after they’ve figured out where the restrooms are and where the bodies are buried–a process that takes at least two terms–who do you think will end up running Congress? And we don’t elect staff members. We don’t even know who they are.

If we don’t think our elected representatives are sufficiently accountable, why would our approval or disapproval matter to an actual “deep state”?

But there are other reasons to be dubious about the efficacy of term limits, and Pierre Atlas,  who teaches political science at Marian College, recently posted a colleague’s paper to Facebook detailing the relevant research. Following are a few tidbits from that paper.

One of the important effects of term limits is that they increase legislative polarization. As Michael Olson and Jon Rogowski report, term limits reduce the value of holding office and increase the influence of legislative parties. Legislatures become more ideologically polarized when term limits are in effect.

A study of the Nebraska Unicam confirmed these effects. In that state, term limits gutted the legislature in the mid-2000s, leaving more than half the seats open when they went into effect. The parties responded rationally by recruiting people to run for those seats, and the people they recruited were far more ideologically motivated than those they were replacing. Even in an officially nonpartisan legislature, term limits sharply increased polarization….

Another important effect of term limits is to reduce legislators’ expertise and capacity.. If you can only serve for six or eight years, chances are you don’t get particularly good at some of the key tasks of legislating — writing a budget, crafting large bipartisan bills, understanding the executive branch well enough to provide competent oversight, etc. — before you get kicked out. Often legislative leaders have only a few years of experience before they take over the chamber…This inexperience and lowered capacity tends to make legislatures weaker relative to the governor’s office.

Other research found other negative consequences. (Citations to the research are in the linked paper.)

Term limits reduced voter turnout.

Termed-limited legislators put less effort into lawmaking in their final term, sponsoring fewer bills, doing less work on committees, and skipping more votes.

In Michigan, term limits limited legislator expertise and reinforced the power of caucus leaders, regional cliques, and consulting networks.

Redistricting is more partisan and more aggressive in term-limited states.

In inexperienced legislatures, power tends to be concentrated in the hands of a few experts.

For legislators with long term career goals in politics, term limits makes them less interested in constituent service, but more interested in fundraising.

Unfortunately, term limits aren’t a substitute for the hard work of citizenship–defined as voters who pay attention to what lawmakers are doing, and use the ballot box to limit the terms of those who aren’t measuring up.

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Don’t Drink The Water

The mismatch between science, reason and the Trump Administration grows wider every day, especially–but certainly not exclusively– when it comes to the environment.

Our Buffoon-in-Chief was just at Davos, where attendees identified climate change as the most significant challenge facing humans. That followed a speech by Trump in which he dismissed climate science as a “hoax.”

For the past three years, this administration has been dismantling the EPA and ridding the federal government of those pesky scolds we call scientists. Meanwhile, recent discoveries suggest previous estimates of the extent to which our waterways have been dangerously polluted were unrealistically low.

The contamination of US drinking water with manmade “forever chemicals” is far worse than previously estimated with some of the highest levels found in Miami, Philadelphia and New Orleans, said a report on Wednesday by an environmental watchdog group.

The chemicals, resistant to breaking down in the environment, are known as perfluoroalkyl substances, or PFAS. Some have been linked to cancers, liver damage, low birth weight and other health problems.

The findings here by the Environmental Working Group (EWG) show the group’s previous estimate in 2018, based on unpublished US Environmental Protection Agency (EPA) data, that 110 million Americans may be contaminated with PFAS, could be far too low.

Worse still, scientists tell us that it is nearly impossible for Americans to avoid drinking water that has been contaminated with these chemicals, which were used in manufacturing products like Teflon and Scotchguard.

So where is the EPA?

The EPA has known since at least 2001 about the problem of PFAS in drinking water but has so far failed to set an enforceable, nationwide legal limit. The EPA said early last year it would begin the process to set limits on two of the chemicals, PFOA and PFOS….

In 2018 a draft report from an office of the US Department of Health and Human Services said the risk level for exposure to the chemicals should be up to 10 times lower than the 70 PPT threshold the EPA recommends. The White House and the EPA had tried to stop the report from being published.

Far from protecting the millions of Americans who are imbibing contaminants, Trump’s EPA is rolling back federal protections of the nation’s waters. According to NPR,

The Environmental Protection Agency is dramatically reducing federal pollution protections for rivers, streams and wetlands – a move welcomed by many farmers, builders and mining companies but opposed even by the agency’s own science advisers.

EPA Administrator Andrew Wheeler, who announced the repeal of an earlier Obama-era rule in September, chose to make the long-anticipated announcement Thursday in Las Vegas, at the National Association of Home Builders International Builders’ Show.

The biggest change is a controversial move to roll back government limits on pollution in wetlands and smaller waterways that were introduced less than five years ago by President Barack Obama.

The Obama executive action, which broadened the definition of “waters of the United States,” applied to about 60% of U.S. waterways. It aimed to bring clarity to decades of political and legal debate over which waters should qualify.

Well, if there is one fight the Trump administration has clearly won, it’s the fight against clarity. But I digress…

In a draft letter posted online late last month, the 41-member EPA Science Advisory Board, which is made up largely of Trump administration appointees, said the revised definition rule “decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.”

Fourteen states have sued over the rollback, arguing that by returning the U.S. to standards of 1986, the EPA is ignoring subsequent studies demonstrating how smaller bodies of water connect with and impact the larger ones that are more typically targeted for regulation.

“This regressive rule ignores science and the law and strips our waters of basic protections under the Clean Water Act. Attorneys general across this nation will not stand by as the Trump Administration seeks to reverse decades of progress we’ve made in fighting water pollution,” New York Attorney General Letitia James, who spearheaded the suit, said in a statement.

We can only hope the suit isn’t heard by one of Trump’s new judges…..

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Speaking Of The Legislature…

Indiana’s legislature is in session, demonstrating that it isn’t only Republicans in Washington who are more interested in protecting favored industries (aka donors)than the public or the environment. (I know, you’re shocked!)

Hoosiers and regular readers of this blog may remember the 2017 bill that made it much less advantageous for homeowners in Indiana to install solar.

Homeowners selling excess power generated by their solar panels back to the utility lost most of the benefit of doing so under Senate Bill 309. Prior to its passage, if you had rooftop solar, “net metering” allowed you to send any excess energy you generated back into the grid, with the utility crediting you for that excess at the same rate that you pay the utility for power when you aren’t generating enough to cover your needs.

Even if it was an even swap, however, you still had to pay the utility an amount sufficient to cover its overhead costs–billing, meter reading, etc. Fair enough.

After passage of SB 309, you were forced to sell all the electricity you generated to the utility at a much lower price than the utility charged you, and then buy back what you need at their substantially higher “retail” price.

Solar energy may be good for the environment, and good for consumers’ pocketbooks, but it had begun to cut into the profit margins of the big electrical utilities. Friends at the legislature to the rescue!

This year, the legislature is showing its solicitude for coal.

Credit where credit is due; the Indianapolis Star, which rarely covers government these days, had the story:

Hoosiers’ electricity bills could rise and several state utilities may face obstacles in their plans to phase out coal-based power generation in the coming years under politically charged legislation that would help a struggling Indiana industry.

House Bill 1414, filed last week by state Rep. Ed Soliday, R-Valparaiso, would require Indiana utilities to prove that any plans to shut down a power plant are either required by a federal mandate or otherwise in the public interest.

But not just any plants. Though the word “coal” does not appear once in the language of the bill, advocates and analysts say the legislation specifically targets coal-burning plants.

Utilities in the United States have been responding to market forces and (to a lesser extent) environmental concerns, and have been transitioning from the use of coal as an energy source in favor of natural gas and various renewables. In the past few weeks, at least two utilities in Indiana have announced their intention to shut down coal generating plants.

One state utility–northern Indiana’s NIPSCO– predicts that the shift could save customers billions of dollars in coming decades. NIPSCO is one of the Indiana utilities that has announced its intent to significantly diminish its use of coal and substitute renewable resources.

Typically, utilities have made their own decisions about their energy use, but Soliday’s House Bill 1414 allows the state to override those decisions. (I thought Republicans wanted government to “get out of the way” of business–silly me!)

Keeping coal plants running comes with a huge cost, according to Citizens Action Coalition’s Kermit Olson.

If coal plants are not able to be retired and if they have to be maintained — as another part of the bill suggests — then those costs will be passed down to customers.

“The idea that we are trying to, as a state, to undo a utility like NIPSCO’s current business plan, which is based on economics and least costs of service to customers is just absurd if not downright unethical,” Olson said.

He is referring to NIPSCO’s planning process in the last few years that determined accelerating the closure of all its coal plants and a transition to renewable energy sources, particularly wind, would save its customers nearly $4 billion over a few decades.

The utilities oppose this bill. Environmentalists oppose this bill. Consumers get screwed by this bill. But yesterday, it emerged from committee.

Coal companies– unable to compete in the marketplace– are lobbying hard, hoping their friends in Indiana’s General Assembly will put a very heavy thumb on the policy scale….

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Corrupting The Judiciary

There is a bedrock principle of ethical behavior that requires avoiding conflicts of interest. If someone serves on a board or commission, for example, and a pending case has been brought by a relative or close friend,  we expect that person to recuse–to abstain from participation in the decision.

When the issue is judicial behavior, it is even more important to avoid even the appearance of bias or impropriety, because the legitimacy and effectiveness of the judicial system depends upon public confidence in the probity and disinterestedness of judges.

One of the (multitude of) problems with Trump’s nomination of unqualified judicial candidates that Mitch McConnell then rams through the confirmation process is that ethical behavior is one of the qualifications a number of them appear to lack.

A recent report originally penned by David Badash for The New Civil Rights Movement is a troubling example.

Legal experts are scratching their heads after a federal judge appointed by President Donald Trump announced on Tuesday he is delaying handing down his decision in a Trump tax returns case until other federal judges hand down their decisions in other Trump cases. That judge is a former Trump transition team volunteer and has donated to the Trump campaign.

District Judge Trevor McFadden of the U.S. District Court for the District of Columbia announced he will hold up his ruling in a case brought by the House Ways and Means Committee against the U.S. Treasury Dept. The case involves gaining access to six years of Trump’s tax returns. The law clearly says the IRS “shall” hand them over to Congress. The Trump administration says Congress has no right to investigate.

This is not a case where legal or factual complexities require time-consuming analysis. This is a case in which a judge has a blatant conflict of interest, and should have recused himself.

Judge McFadden has already exhibited bias in his handling of the case, which was originally brought last  August. According to Politico, he denied House Democrats’ request to expedite consideration of the case as well as their request to rule on its merits, despite the fact that this would seem to be a textbook case for summary judgment.

Now, he has informed the parties that he will not rule on the matter until the court that is considering a challenge to the subpoena of former White House lawyer Don McGahn has ruled. He has not offered an explanation for that delay, nor indicated what the McGahn case has to do with the litigation before him–undoubtedly because (as lawyers and legal commentators have noted) there is simply no connection between the issues in the two cases.

The only explanation that makes sense is that Judge McFadden is trying to help the President avoid disclosure of his taxes. Since the law is clear and unambiguous– a ruling in favor of Trump would be a too-obvious gift to a favored litigant–he is apparently trying to avoid ruling at all until after the election.

The Executive Editor of Above the Law summed it up as a “Trump judge trying to look for a way to prop up Trump’s terrible arguments without looking like he’s a Trump judge.”

It is no longer possible to ignore the fact that Trump, Barr, Pence, Pompeo and others in the administration are deeply corrupt. We are just beginning to realize just how much Trump’s terrible judicial choices have added to the rot and corruption.

And according to the Washington Post, one in every four circuit court judges is now a Trump appointee …

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An Immodest “Modest Proposal”

Talk about “thinking outside the box”!

Ever since the 2016 election, there has been increasing concern voiced about the blatantly undemocratic aspects of American governance–the Electoral College, of course, and the enormous impact of money in politics–but also the fact that the “majority” party in control of the Senate represents about fifteen million fewer people than the “minority” party.

Changing these inequities through the constitutional amendment process would be a fool’s errand. Given the political environment, and the difficulty of the process, it ain’t gonna happen.

We could work around the need for constitutional changes, however, if we followed the advice of a recent article in the Harvard Law Review. As Vox explains,

An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

The Constitution provides for the admission of new states through an ordinary act of Congress requiring a simple majority vote. If it weren’t for a different provision–one that prevents new states from being “carved out” of existing ones unless the legislature of the existing state consents– we might just root for the folks who are trying to divide California into three states.

Since it’s unlikely that California’s legislature– or that of any other state–would agree to be split, the alternative is to chop up the District of Columbia. That gets around the constitutional problem because Washington, DC, isn’t a state.

Similarly, the Constitution effectively prohibits amendments that eliminate Senate malapportionment. The Harvard note proposes getting around this problem by transferring the Senate’s powers to another body. “The Senate’s duties,” it argues, “could be changed without modifying its composition.

Details aside, however, the wild thing about this Harvard Law Review proposal is that it is absolutely, 100 percent constitutional. The Constitution provides that “new states may be admitted by the Congress into this union,” but it places no limits on the size of a state either in terms of population or in terms of physical space.

It turns out that there is a long and ignoble history of partisans admitting new states in order to give their party an added advantage in the Senate. Vox notes that In 1864, Republicans admitted Nevada — at the time a desert wasteland with a few thousand residents — in order to give the GOP two extra Senate seats.

We have two Dakotas because those same Republicans celebrated their 1888 victory by dividing the Republican Dakota Territory into two states, in order to get four senators rather than two. And thanks to gerrymandering, each rural vote is worth 1 1/3 of each urban vote.

As the article concludes:

So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”

Just because we’ve always done it that way doesn’t mean it makes sense.

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