Public Policy and Governance – Page 16

The Policy Dilemma

Ever since the Internet displaced slick magazines and daily printed newspapers, wise readers have heeded the warning to avoid the comments. Something about the anonymity of online responses evidently unleashes some truly hateful impulses. Consequently, except for comments on this blog, I tend not to read the opinions posted by readers of various articles and op-ed pieces. But I do read the “Letters to the Editor” published in the printed magazines I still receive, and I recently read one that deserves wider distribution.

It was printed in the New Yorker, and in a few brief sentences, the writer outlined a central conundrum of policymaking in democratic systems. The letter was a response to an article by Sam Knight about the “uneven performance” of Conservative rule in the United Kingdom. The letter-writer wrote:

But Knight overlooked one force that has shaped the country’s trajectory: the extent to which its government has, since the seventies, transformed from a representative democracy, in which major decisions were made solely by elected officials with support from the civil service, to a popular democracy, in which some of the biggest questions are decided by popular vote rather than by Parliament.

This transformation has created a truly irrational system, which takes important questions influenced by many complicated variables and boils them down to simple binary decisions to be made by people who may not be thoroughly informed. Democracy should remain an ultimate value in the U.K., but, if it is to persist, it must produce positive results for its citizens—something the Brexit referendum clearly has not done. Alas, the supporters of referendums lose track of the ultimate justification for a democracy—namely, that our elected representatives know that we, the voters, can throw them out if we think they are managing the country badly. It is simply wrong to equate this truth with an unproven assumption that voters also have the collective wisdom to regularly make wiser choices about complex issues than our representatives do.

Conservatives in the U.S. have historically insisted–correctly–that this country was not intended to be a pure democracy, but a democratic republic. (I’m not sure everyone making that assertion could have explained the difference, but that’s another issue…) The Founders created a system in which we citizens (granted, then only citizens who were property-owning White guys) democratically elected members of the polity to represent us. The idea was that we would vote for thoughtful, educated, hopefully wise individuals, who would have the time, disposition and mental equipment to analyze complicated issues, deliberate with other, equally-thoughtful Representatives, and negotiate a policy thought likely to address that particular problem.

Direct democracy would put such questions to a popular vote, and complicated issues would be decided based upon the “passions of the majority” that so worried the men who crafted our Constitution.

The Founders’ system makes eminent sense–but it only works when two elements of our electoral system work.

First of all, it absolutely depends upon the qualities of the Senators and Representatives we elect. And second, it depends upon the ability of the voting public to oust lawmakers with whose priorities and decisions they disagree– lawmakers who are not doing what their constituents want.

Those two elements currently do not work, and those electoral dysfunctions explain the inability of our federal legislature (and several state legislatures) to function properly–i.e., to govern, rather than posture. Gerrymandering is at the root of both of these failures, and the reason for the vastly increased resort to popular referenda and initiatives.

Thanks to partisan redistricting, far too many of the people elected to the House of Representatives (Senate elections are statewide and cannot be gerrymandered) are simply embarrassing–ideologues and outright lunatics performing for the base voters of their artificially-constructed districts. People like Paul Gosar and Marjorie Taylor Green, or Indiana’s version of MTG, Jim Banks, all of whom endangered America’s international interests by holding up and then voting against critical aid to Ukraine, among many other things–are examples of the intellectually and emotionally unfit and unserious “look at me” wrecking-ball caucus.

Gerrymandering also limits voters’ ability to rid ourselves of these impediments to rational governance.

There are other aspects of our electoral system that desperately need revision or elimination: the Electoral College comes immediately to mind. But the elimination of gerrymandering–partisan redistricting–would go a very long way to re-centering the system and encouraging thoughtful, reasonable people on both the Left and Right to run for office.

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And Then There’s The Court…

Equal Justice Under Law. That motto is both aspirational and descriptive; in four words, it summarizes the whole point of the rule of law–the founding premise of America’s Constitution and Bill of Rights. Well-paid lobbyists may influence legislation to give Group A an advantage over Group B, elected officials may listen more carefully to people who wrote big checks to their campaigns, but citizens are supposed to be able to appeal for justice to the nation’s courts, and those courts are supposed to administer equal justice under the law.

Granted, it has never worked that seamlessly. Judges are human, with human biases and foibles. Laws are often opaque. Access to the nation’s courts requires resources–either substantial funds or representation by one of the country’s public interest law firms, like the ACLU or Lambda Legal. But for a long time, America’s courts–especially its federal courts–have been there to redress inequality and corruption and instances of fundamental unfairness.

Now, thanks in large part to Mitch McConnell and Donald Trump, the Supreme Court itself has been corrupted. Any doubts on that score were laid to rest during the Court’s eye-opening and frequently chilling hearing on Trump’s ridiculous “immunity” claims. Those claims had been summarily and properly dismissed by the lower courts, and I fully expected the Supreme Court to follow suit. After all, the Court’s unnecessary delay in addressing the claim had given Trump what most observers knew he really wanted: a delay. The appeal was a transparent effort to postpone Jack Smith’s case until after the election, and most of us who were following the case expected the Court–having given him that delay– would rule on the merits by affirming that no one is above the law.

I will leave further discussion and analysis of that oral argument to the multitude of observers who found it appalling, because I want to address other aspects of the high court’s corruption that are relevant to the widespread loss of respect for that body and to the growing calls to expand its membership.

Over the past few years, Americans have learned about the truly gob-smacking conflicts of interest, money-grubbing and pious dishonesty of Clarence Thomas and Samuel Alito. The head of the Alliance for Justice pulled no punches:

Today, our republic is buckling under the weight of those misdeeds, as Americans no longer trust their Supreme Court to be a citadel of democracy and justice. Quite the opposite — they have come to expect the worst from our pay-for-performance judiciary. Are we really going to stand idly by and do nothing about this corruption?”

A recent article from The Intercept pointed to a lesser-known but no less troubling influence of money on the Court. The article focused on a case challenging two states’ efforts to limit social media moderation of user-posted content (which Texas Attorney General Ken Paxton equated to “censorship) then turned to the broader issue of influence.

After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.

Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.

The article quoted Sarah Lipton-Lubet, president of Take Back the Court,

“It’s no secret that the many of the rich benefactors cozying up to the conservative justices are the same people who fund right-wing organizations with business before the court. But too often, stories about the Supreme Court don’t connect these dots — and as a result, they leave us with an incomplete picture.”

A reform bill authored by Senator Sheldon Whitehouse–described in the Intercept article– would be a good first step, but it is past time to consider enlarging the Court and imposing 18-year term limits on Justices, among other measures that are being considered. (When lifetime tenure was established, people didn’t live as long as they do today. Eighteen years is sufficient to accomplish the goal of lifetime terms, which was to insulate the Justices from political pressure.)

The Court has never been the unblemished guardian of liberty that we like to think, but its current, shameful partisanship and outright corruption are a new low. It’s time for a change.

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In Indiana, There’s a Reason For Low Turnout

Indiana’s Civic Health is poor. A number of studies and media reports confirm that–among other “civic deficits,” Hoosier election turnout is among the lowest of any of the states. As the linked article notes,

Indiana ranks among the lowest states in the country in civic participation. Groups from across the state met at the Indiana Civics Summit this week and hope to work together to boost civic engagement and increase voter turnout.

Much of the discussion at the summit was framed around the results of this year’s 2023 Indiana Civic Health Index. The report measures civic health by analyzing data about voting and voter registration, social and community connectedness, and civic awareness and action.

Indiana ranks close to last in the country in several categories measured by the report, especially those related to voting. Bill Moreau of the Indiana Citizen Education Foundation said these data points are a big problem.

“The civic health of Indiana is really pretty poor. Let’s just say it,” he said.

Moreau added that the report most recently listed Indiana as one of the states with the lowest voter turnout during midterm election years. The report compared Indiana to the other 49 states and the District of Columbia.

“This report, which is based upon 2022 election returns, has us ranked 50th for turnout,” Moreau said. “But we’re not last. Thank goodness for West Virginia, or we would be.”

Count me among the voices that have routinely echoed into the wilderness of civic indifference, begging students and readers to “do their duty” and cast their votes. But deep down, I’ve understood the truth of what the editor of the Indiana Capital Chronicle recently wrote–the reason so many Hoosiers don’t bother to go to the polls is because their votes really don’t count.

I’ve previously posted about an unsettling exchange some years back with a graduate student in my Law and Policy class. He was one of my best students, and he’d displayed a civic temperament and real interest in policy. I’d been exhorting students in the class to vote in an upcoming election, and he raised his hand. When I called on him, he explained that he’d recently moved to a bedroom community, had gone online to check his polling place, then looked at the ballot. There were zero competitive races–he’d confronted a Soviet-like ballot showing a single candidate for each position. He asked “Professor, why should I bother to vote?”

I had no answer.

As Oseye Boyd wrote in the Capital Chronicle,

The cold, hard truth is sometimes your vote doesn’t matter — or that’s how it feels.

It’s not just voter suppression efforts such as gerrymandering where cracking and packing diminish voices and feed apathy, but it’s also gatekeeping by political parties that creates few choices, making it harder for voters to see why they should care.

Boyd referenced–among other elements of Hoosier undemocratic processes–“the change in state law that raises the bar to prove party affiliation has made it more difficult for newcomers such as Graves to break into politics and challenge the incumbent.”

Before 2022, you only had to vote in one recent primary to prove your party affiliation. Now, a potential candidates’ two most recent primary votes have to match the party they wish to represent. If you don’t meet this requirement, county party chairs can allow you to run by issuing a waiver. “Can” being the operative word. Without clear guidelines on waiver issuance, the decision is left to the whims of party chairs in each county, creating a hodgepodge of reasons for approving or denying waivers….

Now, only five of the 23 Marion County legislative races in the upcoming primary are competitive. That’s it. Five. The incumbents in the other 18 districts will win no matter what. Let’s be real, races without competition are boring and uninspiring. Candidates bring out their A game when there’s competition. Our political system should encourage public service not discourage it by creating arbitrary obstacles…

We can’t keep chastising those who don’t vote without acknowledging there’s a system that seems to only want a few people participating.

Don’t believe me? Look at the number of people who voted in Marion County’s last two primaries; it’s quite sad. In 2023, 12.74% or 79,156 people out of 621,384 registered voters cast a ballot. In 2022, 10.78% or 73,086 people voted in that primary. The number of registered voters was 678,067.

It’s impossible to dispute her contention that the way to get more people to vote is to give them something to vote for.

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Whose Economy Do We Measure?

What can be done about persistent malfunctions of an essential institution? An informed citizenry is critical to democracy–and it’s undermined by our fragmented and inadequate media environment.

I’ve posted numerous times about the multiple ways in which the proliferation of media sites on the Internet have encouraged readers to indulge in confirmation bias–if you really, really want to believe in X, a google search will take you to “journalism” that confirms the existence and accuracy of “X.” That same fragmentation practically invites propaganda from domestic and foreign sources that are increasingly adept at confusion, misdirection and out-and-out lies.

All of the problems aren’t the result of intentional misrepresentation, either. A recent academic study pointed to a feature of contemporary journalism that I had not previously considered. Titled “Whose News? Class-Based Economic Reporting in the United States,” the research was a “deep dive” into economic reporting in the United States.

The abstract explained the nature of the inquiry and the research conclusions.

There is substantial evidence that voters’ choices are shaped by assessments of the state of the economy and that these assessments, in turn, are influenced by the news. But how does the economic news track the welfare of different income groups in an era of rising inequality? Whose economy does the news cover? Drawing on a large new dataset of US news content, we demonstrate that the tone of the economic news strongly and disproportionately tracks the fortunes of the richest households, with little sensitivity to income changes among the non-rich. Further, we present evidence that this pro-rich bias emerges not from pro-rich journalistic preferences but, rather, from the interaction of the media’s focus on economic aggregates with structural features of the relationship between economic growth and distribution. The findings yield a novel explanation of distributionally perverse electoral patterns and demonstrate how distributional biases in the economy condition economic accountability.

The researchers recognized the powerful role played by news media in forming citizens’ beliefs about the performance of government, and especially about the state of the economy. (Economic performance is an area in which they point out that direct experience is generally of “limited relevance”). Assessments of the economy are particularly important to voters’ electoral choices. This particular study was concerned with a question that has received very limited scholarly attention: whose material welfare the economic news reflects. In other words, “how responsive is economic reporting to developments affecting different income groups? When voters turn to the news media for an assessment of economic performance, does the signal that they receive reflect the fortunes of most households or of those located at particular points in the income distribution—whether the middle, the bottom, or the top?”

We argue in this paper that the economic news in the United States has, over the last 40 years, painted a portrait of the economy that strongly and disproportionately tracks the welfare of the very rich. Analyzing a vast, original dataset of news articles in 32 high-circulation US newspapers over this period, we uncover clear evidence that reporting on the US economy is descriptively class-biased. Footnote¹ Specifically, the evaluative content of economic news becomes more positive (negative) in periods in which the incomes of the very rich grow (shrink) and is largely uncorrelated with change in the incomes of less well-off Americans, once growth in incomes at the top is taken into account. Put simply, good economic news tracks, above all, the fortunes of the most affluent.

The research attributes this phenomenon in large part to the fact that government and media track economic performance in the aggregate–and averages, as we know, can be misleading. (If you average Bill Gates wealth with that of a fast-food worker, you are going to get a result that is pretty meaningless–or, as the paper puts it, class-biased economic news “tracks the ups and downs of the business cycle in the context of an economy that distributes income growth in powerfully class-biased ways.”)

The results suggest an explanation, for instance, of why incumbents presiding over sharp increases in economic inequality in the United States have not been penalized at the ballot box.

The study has particular relevance to the current disconnect between voters’ impressions about economic performance and the data that tracks that performance. Data from a variety of sources suggests that working class folks have been doing considerably better during the Biden Administration than they were previously, and that most are unaware of that fact due to the relative lack of economic reporting focused on wage-earners or on the policy changes that have begun reducing the gap between the rich and the rest.

As the paper points out, journalists need to focus more on “distributional dynamics.”

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What “Let the States Decide” Ignores

There are a number of legal and practical objections to Republicans’ recent, deeply misleading efforts to convince Americans that leaving abortion restrictions to the states is a “moderate” position. The most obvious is that fundamental constitutional liberties are just that–fundamental. Legislators don’t get to vote on whether to allow freedom of speech or religion within their states (a good thing, if you live in places like Indiana, where the GOP super-majority would undoubtedly limit those civil liberties).

Practical objections are numerous: legislative bodies are conspicuously devoid of medical expertise, and ideological lawmakers have demonstrated that they have no understanding of the real-world complexities of the decisions involved; laws that require women to travel long distances for critical medical care discriminate against low-income patients…Most of you reading this post can supply a number of others.

But it wasn’t until I read a recent opinion essay in the New York Times that I had a small epiphany: leaving the issue to the states–despite the pious rhetoric emphasizing voting– is also profoundly anti-democratic, and not just in states like Indiana where citizens lack access to initiatives and/or referenda. Successful gerrymandering–partisan redistricting–ensures that “the people” lack the means to make such decisions.

As Jamelle Bouie writes:

Nearly everywhere Republicans hold power, they fight to rewire the institutions of government in the hope that they will then generate the desired result: more and greater Republican power.

And so we have the North Carolina Legislature gerrymandered to produce Republican majorities, the Ohio Legislature gerrymandered to produce Republican supermajorities, the Florida Legislature gerrymandered to produce Republican supermajorities, and the Florida Supreme Court overhauled to secure and uphold Republican priorities.

The states’ rights case for determining abortion access — let the people decide — falters on the fact that in many states, the people cannot shape their legislature to their liking. Packed and split into districts designed to preserve Republican control, voters cannot actually dislodge anti-abortion Republican lawmakers. A pro-choice majority may exist, but only as a shadow: present but without substance in government.

Polling on the issue of abortion proves his point. Even in deep Red states, pro-choice voters outnumber forced birth supporters by considerable margins, as we’ve seen in states like Kansas and Kentucky where voters have the means to mount constitutional referendums.

In states that lack those mechanisms, as Bouie notes, Republican legislators or jurists unwilling to concede to majority opinion (or constitutional precedent) can respond with the dead hand of the past.

Both the federal courts and the Arizona Supreme Court have conjured a past that smothers the right to bodily autonomy. Anti-abortion activists are also trying to conjure a past, in the form of the long-dormant Comstock Act, that gives government the power to regulate the sexual lives of its citizens. As Moira Donegan notes in a column for The Guardian, “Comstock has come to stand in, in the right-wing imagination, for a virtuous, hierarchically ordered past that can be restored in a sexually repressive and tyrannically misogynistic future.”

This effort may well fail, but the drive to leash the country to an imagined vision of a reactionary past should be seen as a silent confession of weakness. The same is true, for that matter, of the authoritarian dreams of the former president and his allies and acolytes….

Put a bit differently, a confident political movement does not fight to dominate; it works to persuade. It does not curate a favorable electorate or frantically burrow itself into our counter-majoritarian institutions; it competes for power on an even playing field, assured of its appeal and certain of its ability to win. It does not hide its agenda or shield its plans from public view; it believes in itself and its ideas.

That last paragraph is a succinct description of where we are as a nation right now. In far too many states, very much including my own state of Indiana, the GOP has “curated a favorable electorate.” Republicans have also benefitted mightily from counter-majoritarian institutions that have bestowed extra electoral clout on rural voters and low-density populations.

Regular readers of this blog are well aware of my periodic rants about the pernicious and anti-democratic effects of gerrymandering, but I didn’t understand until I read this essay that the practice is also an essential tool for depriving American citizens of their bodily autonomy and other civil liberties.

Gerrymandering is a critical part of the effort to return America to the past of GOP wet dreams…..

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