Category Archives: Public Policy and Governance

FIXING it

Yesterday’s post focused on legal reforms aimed at official corruption. Important as those are, they aren’t the only reforms we need to make.

We need to fix our elections.

Even those of us who follow politics closely and who are familiar with the country’s legal framework often miss the way in which demographic shifts have upended America’s electoral system and shifted power to an unrepresentative minority of voters– aided and abetted by America’s minority party.

Over the last few years, more people have come to recognize the inequities caused by gerrymandering and the Electoral College, but beyond that, our comfort with “the way it is” has blinded us to the equally troubling consequences of equal Senate representation, for example. Currently, over half the U.S. population lives in just nine states. The result is  that less than half of the population chooses 82 percent of the country’s Senators. And that means that the Republicans hold their current Senate majority despite the fact that the Democratic Senate minority represents more than half of the American people.

A recent article from Vox, which led off with that example of distorted representation,  offered eleven proposals to fix what has evolved into an unfair and unequal system. The article began with a recitation of several of the most egregious elements of our decidedly undemocratic reality.

Intentional efforts to make it harder to vote, such as voter ID laws, are increasingly common throughout the states — and the Supreme Court frequently approaches such voter suppression with indifference. Gerrymandering renders many legislative elections irrelevant — in 2018, Republicans won nearly two-thirds of the seats in the Wisconsin state assembly, even though Democratic candidates received 54 percent of the popular vote. Wealthy donors flood elections with money, as lawmakers spend thousands of hours on “call time,”dialing the rich to fund the next campaign.

And looming over all of this is the problem of race. In some states, Republican lawmakers write voter suppression laws that target voters of color with, in the word of one federal appeals court, “almost surgical precision,” knowing that a law that targets minority votes will primarily disenfranchise Democrats.

After the Democrats took the House in 2019, the first bill they passed was the “For the People Act.” If that act passed the Senate– which did not happen and will not happen so long as Mitch McConnell is in charge of that body–Vox says it would be the most significant voting rights legislation since the Voting Rights Act of 1965. (A companion bill, HR 4, would strengthen that original Voting Rights Act by restoring sections of the law that were eviscertated by the Supreme Court.)

That said, as the article correctly noted, even if those measures are enacted, they would still fall short of addressing the major and troubling challenges facing Americans’ electoral system. They wouldn’t address Senate malapportionment or the Electoral College –both systems that hand control of the government to an unrepresentative, predominantly rural minority of our citizens.

The eleven “fixes” identified by Vox include much-discussed measures like eliminating the filibuster and revitalizing the Voting Rights Act, but also less-often suggested changes like eliminating advance registration in favor of same-day voter registration. (A number of states are moving in that direction, which has the benefit of also eliminating flawed and partisan purges.)

Then there are the changes that would make it easier to vote: more early voting, no-excuse absentee voting and other measures that would actually facilitate the process of casting a ballot. What if we emulated Australia, for example?

In Australia, over 90 percent of eligible voters typically cast a ballot in federal elections. The nation achieves this feat by turning Election Day into a celebration, where voters gather at community barbecues to eat what are often referred to as “democracy sausages.” But Australia also uses a stick to encourage voting — nonvoters can be fined about $80 Australian dollars (about $60 in US currency) if they do not cast a ballot.

You really need to read the whole article, but even those who disagree with some of its specific recommendations will find it hard to argue with the proposition that it is past time for lawmakers and citizens alike to focus on the numerous, fundamentally unfair elements of the way we choose America’s leaders.

Comments

Past Time For These–And Other–Reforms

Americans shouldn’t allow Trump’s COVID diagnosis to become the ultimate distraction from the  electoral choices that face us, or the structural challenges we will face even in the best of electoral circumstances.

The bottom line is that, even If America rids itself of Trump and his GOP enablers, citizens will still have a lot of work to do. We can no longer pretend that our electoral and legal systems are working as intended– for that matter, several are not working at all.

The Democrats, at least, have noticed.

On September 23d, the Washington Post ran an opinion piece authored by several Congressional Democrats, including Adam Schiff and Jerrold Nadler. Noting that Trump was the first President to ignore the reforms passed in the wake of Watergate, they wrote that

With a lawless president in office who acts as if rules are for suckers, political norms for losers and governing for chumps, it is clear we need a new series of reforms to protect our democracy.

On Wednesday, we are introducing such reforms, which we began drafting more than a year ago not only to address the president’s unique abuses, but also to go beyond them to restore accountability, root out corruption and ensure transparency in government for future White House occupants.

The reforms these lawmakers are proposing include amending the pardon power to make it clear that a President cannot pardon himself or his immediate family, adding teeth to the emoluments clause by adding explicit enforcement provisions and enhanced penalties, and increasing financial disclosure rules.

The bill also addresses the need to strengthen accountability and transparency. The op-ed notes that Trump has “obstructed congressional oversight, targeted whistleblowers who speak out against him and fired officials whose responsibility is to objectively investigate wrongdoing in the federal government,” and states the obvious: that  Congress needs access to documents and  the ability to compel testimony from witnesses in order to conduct that oversight. Their bill strengthens Congress’ right to enforce its subpoenas in court, and has other provisions aimed at improving congress’ ability to discharge its duties as  a co-equal branch of government.

The bill also contains measures that are a direct response to Trump’s contempt for the rule of law and for democratic norms:

We must also reclaim Congress’s power of the purse from an overzealous executive branch, increase transparency around government spending and ensure there are consequences to deter the misuse of taxpayer funds. Our bill will prevent the executive branch from using nonpublic documents or secret legal opinions to circumvent Congress and unilaterally enact its agenda behind closed doors. Our bill will impose limits on presidential declarations of emergencies and any powers triggered by such declarations, unless extended by a congressional vote, and require the president to provide all documents regarding presidential emergency actions to Congress.

These and the other reforms enumerated in the bill are welcome and probably overdue. The ability to pass the measure rather obviously depends upon turning the Senate blue on November 3rd.

But here’s my problem.

So long as most Americans don’t understand the rules we already have, or the reasons we have them–so long as they fail to recognize the profound effect legal structure exerts on the mechanics of government, we are ignoring one of the most dangerous threats to ethical and constitutional governance: widespread civic ignorance.

Far too many Americans vote for presidents and governors and mayors without understanding either the skills required for those jobs or–even more importantly–the constraints applicable to those positions. They evidently assume that they are electing temporary kings and queens–people who will take office, issue decrees, and change reality. (Trump’s base, for example, evidently thinks his constant stream of “Executive Orders” all have legal effect, although few do.) Worse, they fail to recognize the ways in which structures that were useful (or at least, less harmful) in the past have distorted the exercise of the franchise and given us a system in which rural minorities and thinly populated states dominate an overwhelmingly urban country.

When you don’t understand how a system works–or why it is no longer working properly–your ability to make informed choices at the ballot box is impaired.

The reforms listed in the linked op-ed are among the many changes we need to make. But a thoughtful discussion of those needed reforms requires a voting public that understands why America’s systems aren’t functioning properly–and what “properly” looks like.

Tomorrow, I will address additional needed reforms.

Comments

How We Got Here

In late August, Jonathan Chait authored an important essay in New York Magazine,arguing that the Republican Party must be saved from the Conservative Movement. As he admits, to modern ears, this sounds nuts: we all have been brainwashed into seeing “conservative” and “Republican” as different terms meaning pretty much the same thing.

That, however, is an ahistorical belief, and Chait reminds us that the GOP under, say, Eisenhower was a very different animal.

Chait characterizes the current divide among anti-Trump Republicans as an argument between those who just want Trump gone and those who have concluded that the whole party needs to be gone. He provides a memorable analogy for the latter group:

I have immense admiration for my colleagues at New York. Suppose, however, that we appointed an editor who lacked familiarity with terms like circulation and advertising, whose notes to writers were scrawled indecipherably in crayon, and who seemed more interested in filching office supplies than any other aspect of the job. And suppose the staff either actively defended this editor or deflected criticism by pointing to David Remnick’s various foibles.

Well, I would naturally conclude I had misjudged the place badly. And if this editor eventually left, I would be looking for work at a publication whose staff had not been trying to extend his term.

Chait’s point–with which it is hard to argue–is that it isn’t just Trump. but a party that wouldn’t “merely cooperate with but actually idolize” a grotesquely bigoted authoritarian. But rather than burning the party down, he advocates severing it from what passes for “conservatism” these days. As he quite accurately points out, the conservative movement was once a minority faction within the GOP that demanded an “apocalyptic confrontation that would roll back big government at home and communism abroad.”

Chait’s essay is long, but it’s worth reading in its entirety for its history of the radical/conservative takeover of the GOP. The results of that takeover can be seen in today’s party of Trumpists:

It would be an overstatement to paint Trump as representing nothing but the triumph of the conservative movement. In his personal defects, Trump is indeed sui generis. But the broad outlines of his agenda and his style do closely follow the trajectory of the American right: racism, authoritarianism, and disdain for expertise. The movement attracts disordered personalities like McCarthy, Sarah Palin, and Trump and paranoid cults like the John Birch Society and QAnon.

Above all, Trump follows the American right’s Manichaean approach to political conflict. Every new extension of government, however limited or necessary, is a secret plot to extend government control over every aspect of American life. Conservatives met both Clinton and Obama’s agenda with absolute hysteria, whipping themselves into a terror that rendered them unable to negotiate.

And in a particularly insightful observation, he notes that an inability to distinguish reasonable, well-designed government programs that address real market failures from Soviet-style oppression is a congenital defect in conservative thought. As he says, Trump is not even pretending to have a positive second-term program. His only goal is to stop the next Democratic administration because the next liberal program is always the one that will usher in the final triumph of socialism.

So–what should a successful reconstituted, post-Trump party look like? Chait points to the sort of  “pragmatic center-right thinking being developed at the Niskanen Center and by some of the wonks at the American Enterprise Institute and a handful of other places” and he would jettison the conservative dogma that forbids any consideration of new taxes, spending, or regulation.

It will take more than one defeat for the party to abandon what its cadres have been trained to see as the only possible path. But the Republican Party will never stop being a danger to American democracy until it can see the problem clearly. The task is not to save conservatism from Trump. It is to save the Republican Party from conservatism.

Really, read the whole article.

Comments

The People And The Court

Joseph Margulies has made a counter-intuitive argument at the legal publication Justia. The crux of his opinion is that liberals have misread the Supreme Court’s history, and as a result, have placed far too much reliance on the judicial branch.

As I recall, this was also an argument advanced by Kieth Whittington, a legal scholar, a few years back. As I remember the book–and my memory is definitely hazy– Whittington felt that over-reliance on the courts to protect individual liberties led to flaccid and apathetic political participation.

Justice Ginsburg has given the left a great gift, if it knows how to use it. Finally, and none too soon, the popular infatuation with the Court as the Great Protector of Individual Rights can be laid to rest. We will now see the Court for what it has been for most of its history—a reactionary branch committed to the preservation of wealth and the status quo. With the exception of a brief and unrepresentative period from the mid-1950s to the early 1970s, the Court has not been an agent of progressive change. Quite the contrary, it has been decidedly unkind to claims pressed on behalf of underrepresented minorities and the poor. Outside of two short decades, the Court has been timid and conservative, lending its support for progressive policies only after they have already won widespread approval. By the time the Court managed to recognize a right to same-sex marriage in Obergefell v. Hodges, for instance, it was already the law in 37 states and the District of Columbia

The Court that liberals lionize (or, as Margulies would have it, the myth of the Court that they have constructed) is, as he argues, a product of what he calls “the golden years” that produced cases like Brown v. Board of Education (1954), Roe v. Wade (1973), Miranda v. Arizona (1966) and and Gideon v. Wainwright(1963).

But what so many fail to appreciate is that all the rights and protections established during this period, literally without exception as far as I can tell, have been substantially diluted by the same Court that created them, some nearly to the point of elimination.

It’s hard to disagree with this analysis. The Court has blessed “school choice,” which has accelerated the re-segregation of schools, and has made abortion nearly unobtainable by upholding medically unnecessary and burdensome regulations. Margulies concludes that there is no judicial substitute for the hard work of political activism.

The practice [of taking matters to court] supplants democracy and sidesteps the people. It imagines that there is a substitute for politics, a shortcut that will allow us to achieve an enduring progressive vision without having to engage in the protracted ugliness of partisan politics. We point to past cases because we think it has happened before, but overlook the fact that these decisions did not endure. We put our faith in Oracles who stand atop politics because we are sickened by the emergence of a world in which facts no longer matter, science is ridiculed, and jack-booted racism is on the march. So we look to the Nine for our salvation. But they are not—and in truth have never been—our Saviors.

Win or lose in November, we need to heed this call to arms. Margulies predicts that we will:

As political campaigns well know, nothing motivates a constituency like a sense of threat. After the election of Barack Obama, for instance, the NRA parlayed fear of the new President into “a dramatic increase in membership,” and gun sales surged 60 percent.. ..The same thing happened on the left after the surprise result in 2016. Within months of Trump’s election, membership in the ACLU skyrocketed from around 400,000 to more than 1.8 million and contributions ballooned by $120 million. In the same way, the knowledge that the Court is lost to the left should trigger a groundswell of political and financial support for progressive and liberal candidates, lest the entire architecture of government be controlled by the right. In politics, threat leads to action, and after Friday, the sense of threat has never been so real. The ships have been burned; there will be no retreat to the Court.

Just as [RBG”s] death should invigorate the left, it will enervate the right. Campaigns articulate a vision of success and promise their supporters that all will be right with the world once that goal has been achieved. For the right, success has meant control of the Court. For decades, the right has struggled to achieve a secure majority on the Court, only to suffer one disappointment after another…. Now that victory is at hand, a letdown is inevitable. While threat produces action, victory leads to quiescence.

As my grandmother would have said, “From his mouth [okay, word processor] to God’s ears…”

Comments

What White Supremicists Are Also Voting Against

There’s a theme emerging in the depressing story of current American political behavior. Call it karma, irony or profound stupidity leading to a boomerang effect.

A couple of days ago, I described a local election campaign in which the dishonest and unethical efforts of a State Senator who had previously had a reputation as one of the more honorable contemporary Republicans had instead brought disrepute on a family name that, until now, had identified admirable members of a Hoosier political family.

Tuesday, Paul Krugman pointed to yet another example of probable karma–in their determination to re-elect Donald Trump and their haste to co-opt the Supreme Court (ostensibly to “save”  babies they refuse to feed once they’re born), the GOP is facilitating the death-knell of Obamacare and the ability of both Republican and Democratic Americans with pre-existing conditions to obtain health insurance.

If you or someone you care about are among the more than 50 million Americans suffering from pre-existing medical conditions, you should be aware that the stakes in this year’s election go beyond abstract things like, say, the survival of American democracy. They’re also personal. If Donald Trump is re-elected, you will lose the protection you’ve had since the Affordable Care Act went into effect almost seven years ago.

The death of Ruth Bader Ginsburg has made this even more obvious. In fact, it’s now possible that coverage of pre-existing conditions will be stripped away even if Trump loses to Joe Biden, unless Democrats also take the Senate and are prepared to play serious hardball. But health care was always on the line.

Naive members of the GOP base either don’t understand this, or don’t care, or believe Trump’s repeated promises to issue a “wonderful plan” that will replace the Affordable Care Act and protect those with pre-existing conditions.

As Krugman points out, we’ve been hearing about how imminent that plan is for four years, and there’s still no sign of it. (Krugman suggests that  administration officials may have been” too busy botching their response to the coronavirus” to get to the task of crafting a healthcare plan. “Did I mention that, as we pass the 200,000 deaths mark, cases appear to be rising again?”)

In 2017, the last time Republicans did offer their own health care plan, the Congressional Budget Office calculated that it would cause 32 million Americans to lose health insurance, and others would face much higher premiums. That calculation didn’t come from “fake news” sources, but from the budget office of a Republican administration.

And what about that promise to people with pre-existing conditions?

The Trump administration is backing a lawsuit, now before the Supreme Court, claiming that a fairly minor provision in the 2017 tax cut somehow rendered the whole Affordable Care Act unconstitutional. It’s a ludicrous argument — but Republican judges in lower courts have backed it anyway, and a court without Ginsburg is more likely to let partisanship override any pretense of respect for logic.

The odds that the court will destroy Obamacare, and with it protection for pre-existing conditions, will obviously go up if Trump is able to install a right-wing partisan to replace Ginsburg.

For many members of the Trumpian base, loss of their health insurance would be karma– their overwhelming desire to hurt people who look, love and pray differently would have brought disaster on themselves. Much like the situation with masks–if the only people being hurt were the selfish know-nothings and bigots refusing to be inconvenienced to save the lives of their neighbors– the rest of us could probably live with that result. (I know–that’s horrible. But I never said I was nice.) Unfortunately, however, the trite sentiment is also true: we really are “all in this together.”

Dishonesty, stupidity and bigotry do come back to bite their promoters–the problem is, they get the rest of us, too.

Comments