Public Policy and Governance – Page 2

Be Careful What You Wish For…Chevron Edition

Among the Supreme Court’s numerous retreats from what had long been considered “settled law” was a ruling that received relatively little publicity. The general public can be forgiven for failing to realize just how startling–and wrongheaded–the Court’s abandonment of something called “Chevron deference” really was, but the legal community certainly understood the decision as a monumental retreat from precedent and respect for expertise–not to mention an unwarranted increase in judicial power.

Chevron deference was shorthand for a judicial doctrine that has been applied for 40 years in over 18,000 decisions to situations where Congress sends ambiguous directions to executive agencies staffed with people who are experts in the particular area. That ambiguity is necessary; Congress isn’t equipped to determine the proper levels of contaminants in water or to identify carcinogenic chemicals–and even if such specifics were passed, they would be incredibly difficult to monitor and update as technical knowledge advances.

Recognizing that practical reality, Courts have deferred to agency interpretations/clarifications of those ambiguities, recognizing that judges–like Congresspersons– generally lack the specific technical knowledge required.

The required deference could certainly be overcome. If a plaintiff challenging the agency’s interpretations provided evidence that agency interpretations were unreasonable, Courts could–and did–overrule them. Deference simply required the judicial branch to acknowledge–and respect– the existence of specialized subject-matter expertise, and to recognize that the possession of superior legal knowledge does not make the judicial branch all-knowing.

As an article from Pro Publica reported,

That doctrine, known as Chevron deference, was named after the 1984 Supreme Court case in which it emerged, and it offered an answer to a recurring question: What happens when Congress passes a law granting power to a federal agency but fails to precisely define the boundaries of that power?

In such situations, the doctrine of Chevron deference instructed federal judges to rely on the interpretations made by federal agencies, as long as those interpretations were reasonable, since agencies typically have greater expertise in their subject areas than judges. The Loper Bright decision erased that, commanding federal judges to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Legal scholars condemned the Loper ruling as yet another departure from stare decisis–respect for precedent–and as an unwarranted departure from a reasonable balance between executive and judicial authority. Those intent upon reducing federal authority–and regulations–cheered it.

But it turns out that the Chevron decision might take its place alongside Dobbs, as a judicial overreach that ideologues may regret. (Dobbs was largely responsible for the non-appearance of the anticipated “Red wave” in 2022.)

A recent article from Stateline suggests that the ruling will allow Blue states to more effectively resist Trump Administration policies.

A major U.S. Supreme Court decision this summer was hailed as a conservative court’s broadside against a Democratic administration, giving red states more backing to delay or overturn policies they don’t like, such as transgender protections and clean energy goals.

But the ruling in the Loper Bright case, which granted courts more power to scrutinize federal rules, can go both ways. Experts say it will likely give blue states more leeway to attack any forthcoming policy changes from President-elect Donald Trump — ranging from immigration and the environment to Medicaid and civil rights.

Lawsuits already are being planned in many states. California is holding a special session to set aside money for legal fights, and Connecticut, Massachusetts, Minnesota, New Jersey and New York also are considering legal strategies

Democratic governors in Colorado and Illinois formed a coalition in November to “fortify essential democratic rights nationwide.”

In effect, the ruling opens more federal rules to those court challenges. Blue states now have a new weapon to fight conservative federal rules on issues such as immigration, climate change, abortion access and civil rights….

Most experts see the change as an obstacle to a new Republican administration looking to make sweeping changes but lacking enough support in Congress to pass large-scale legislation. Any proposals restricting access to abortion or attempting to dismantle the Affordable Care Act or Medicaid expansion will be more complicated, said Zachary Baron, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.

Our fractious, gerrymandered Congress hasn’t approved a major immigration or environmental law for decades. That Congressional inability to legislate “has forced both Democratic and Republican administrations to change policy through either executive order or federal regulations that can now be more easily challenged by hostile states in the courts.”

The Loper decision hobbled some of the Biden Administration’s regulatory efforts. The linked article points to a number of ways in which it will also complicate–and prevent–measures threatened by the incoming Trump administration.

Sauce for the goose……

Comments

We’ve Already Lost Democracy

The recently concluded election was characterized by claims that it was an election to save democracy. While the threat Trump and MAGA pose to America’s form of government is obvious and very real, that argument ignored a very unpleasant reality: We the People no longer choose our public officials. We are no longer a democratic republic. In the 2010 redistricting, Republicans managed a bloodless coup with RedMap, completing a process that had been developing over a number of years. While most of us went about our daily business, we failed to notice that a majority of voters no longer decided elections.

If you doubt the accuracy of that statement–if you think it’s overly dramatic–Ballotpedia has the data to disabuse you.

An uncontested election is one where the number of candidates on the ballot is less than or equal to the number of seats up for election. Candidates running in uncontested elections are virtually guaranteed victory. On average, between 2018 and 2023, 58% of elections covered by Ballotpedia have been uncontested, ranging from a low of 50% in 2021 to a high of 64% in 2020.

Through November 2024, Ballotpedia has covered 76,780 elections in 50 states, the District of Columbia, and five territories. Of that total, 53,428 (70%) were uncontested and 23,352 (30%) were contested.

The current year-to-date rate of 70% uncontested elections is the highest rate Ballotpedia has covered at this point in the year since data collection began in 2018. The second highest rate of uncontested elections was in 2020, at 65%. The lowest rate at this point was 50% in 2021.

When it comes to the type of election being analysed, Ballotpedia finds that 78% of the 2,845 law enforcement elections it covered have been uncontested, making law enforcement contests among the highest uncontested rates. Interestingly, school board races have had the lowest uncontested rate at “only” 49% of the 6,984 covered so far.

On November 5, 2024, Ballotpedia covered 40,646 elections in 50 states, the District of Columbia, and four territories. Of those, 26,218 (64.5%) were uncontested and 14,428 (35.5%) were contested.

Some of the “highlights” (actually, “low lights” would be more accurate) of the report included the following:

Iowa had the highest percentage of uncontested elections, with 1,614 (85%) of the 1,902 elections covered by Ballotpedia uncontested.

Both New Jersey and Puerto Rico had no uncontested elections (0%). In New Jersey, all 17 of the elections covered by Ballotpedia were contested, and all 130 elections covered in Puerto Rico were contested.

Of all the state, district, and territory general election races covered by Ballotpedia on November 5, 2024, Michigan had the highest total number of races at 8,146. Of those, 6,455 (79%) were uncontested.

The most uncontested office type was constable, with 97%, or 39 of the 40 covered races being uncontested elections. Clerk and Treasurer were the second most uncontested office types in Michigan. The combined total number of races for these two offices was 2,688, with 2,522 (93.8%) uncontested.

In Michigan, there were more city council races than any other office type covered, with 1,254 of the 1,732 elections, or 72%, uncontested.

If you think the foregoing data is depressing, the site reports that it underestimates the actual number of uncontested elections.

In some states or for some office types, uncontested elections are canceled, meaning they do not appear on any ballots and are often excluded from other election-related materials including public notices and candidate lists. While Ballotpedia attempts to identify these elections and their winners through direct outreach to election officials, this is not always possible or feasible. The uncontested elections in this analysis are those Ballotpedia was able to identify regardless of whether they were ultimately canceled.

Additionally, this analysis does not include elections where no candidates filed to run.

Permit me to belabor the obvious: elections that offer voters no choice can hardly be considered democratic. The prevalence of gerrymandering–redistricting processes that allow politicians to choose their voters and deny those voters the ability to choose their elected officials–has utterly corrupted American electoral systems. The Supreme Court’s cowardly refusal to rule out the practice has insulated a patently undemocratic process.

In some states, as we’ve seen with reactions to abortion bans, citizens do have recourse to referenda or initiatives–mechanisms that are unwieldy and require massive effort, but at least threaten a check on the most outrageous acts of legislators. Not all states offer those remedies, however–Indiana is one that doesn’t.

So here we are. While Democrats had also engaged in gerrymandering in some states, RedMap’s success allowed the GOP to seize control of the House of Representatives and numerous state offices despite the party’s minority status. The failure of Democrats to contest numerous, presumably “safe” seats reinforced the belief that election results were already “in the bag,” encouraging voters to stay home on election day.

I don’t know what you’d call the system we have had since 2010, but it sure isn’t democracy.

Comments

Really?

According to various media reports, in addition to eying cuts to Social Security, Medicare and Medicaid, the Musk-Ramaswamy proposals to make the government more “efficient,” are focused especially on dramatic cuts to the following: VA Healthcare – $516 billion (100% reduction); the National Institutes of Health – $47 billion (eliminate NIH); Pell Grants – $22 billion (80% reduction); Head Start – $12 billion (100% reduction); the FBI -$11 billion (out of $11.3 billion budget); Federal Prisons -$8 billion (100% reduction) and the SEC – $2 billion (out of $2.1 billion current budget). In other words, the cuts will effectively eliminate the following agencies and programs: VA healthcare, NIH, Head Start, FBI, Federal Prisons, and the SEC.

While it is unlikely that most of these reductions will take place–the “geniuses” who’ve trained their sights on them clearly don’t understand legal or political reality–it is instructive to look at just who would suffer if they were successful: working and middle class people, many of whom comprise the majority of Trump’s base.

It’s equally instructive to note that the “savings” generated by these cuts are intended to make up for diminished revenues anticipated from Trump’s intended tax cuts for the very rich.

What has become very clear as Trump has assembled his “team” is that plutocrats have purchased America’s government.

Heather Cox Richardson recently cited an NBC News report that Elon Musk alone had spent at least $250 million–a quarter of a billion dollars— to get Trump elected. And Axios has noted that Trump’s administration will be dominated by billionaires.

President-elect Trump has assembled an administration of unprecedented, mind-boggling wealth — smashing his own first-term record by billions of dollars.

That’s even without counting the ballooning fortunes of his prized outside adviser and the world’s richest man: Elon Musk.

Why it matters: It’s not hyperbole to call this a government of billionaires. Whether it acts as a government for billionaires — as Democrats argue is inevitable — could test and potentially tarnish Trump’s populist legacy.

The big picture: Besides Trump, Musk and his fellow Department of Government Efficiency (DOGE) head Vivek Ramaswamy, at least 11 billionaires will be serving key roles in the administration.

Please note that this is without counting Trump, Musk or Ramaswamy. The Axios article has a comprehensive list of the appointees and the net worth of each of them.

The dominance of the super-wealthy and their eagerness to ignore the needs and/or well-being of the rest of us may shed some light on why Congressional Republicans are engaged in an effort to teach a skewed form of civics.

Republican Congressmen have introduced a bill to support the teaching of civics in the nation’s high schools. This would ordinarily be great news, if the measure contemplated the teaching of actual Civics–a curriculum like “We the People,” for example. This proposal, however–H.R.5349, the “Crucial Communism Teaching Act”– has been described as “a government mandated curriculum requiring all schools to teach the evils of Communism.” When Democratic Rep. Jim McGovern asked why the bill made no mention of the dangers of Fascism, Republicans refused to answer what certainly seems to be a pertinent question: Why are we teaching kids Communism is bad but failing to teach them about the historic failures (not to mention the deaths) caused by Fascism?

When Rep. McGovern offered an amendment to the Bill to add Fascism to the civics bill, every Republicans voted against that amendment.

Although the most striking aspect of fascist systems is a fervent nationalism–it is characterized by a union between business and the state– in most fascist systems, the uber-rich control the government. Fascist regimes tend to be focused upon a (glorious) past, and to uphold traditional class structures and gender roles that are believed necessary to maintain the social order–a social order that facilitated the acquisition of wealth by those same uber-rich.

The three elements commonly identified with Fascism are 1) a national identity fused with racial/ethnic identity and concepts of racial superiority; 2) rejection of civil liberties and democracy in favor of authoritarian government; and 3) aggressive militarism. Fascists seek to unify the nation through the elevation of the state over the individual, and the mass mobilization of the national community through discipline, indoctrination, and physical training. (Think Nazi Germany.)

When people are being trained to focus on the glory of the state (America First), they are more easily distracted from other concerns–like the takeover of their governments by billionaires intent upon protecting their conflicts of interest and special prerogatives at the expense of the masses they disdain.

Wouldn’t want to teach the kids about that…..they might notice some disquieting similarities….

Comments

Defunding Certain Police…

One inevitable result of November’s election will be the failure of any effort–at least in the short term– to make the rich pay their fair share of the national budget. Instead, we will see another gift to the super-wealthy, as the Trump administration rewards its billionaire donors with further tax cuts.

In all likelihood, that gift to the richest among us will be accompanied by cuts to the IRS budget. That budget was finally increased under Biden, in an effort to allow the agency to do its job. Ironically, it is the GOP that really wants to “defund the police”–in this case, the folks policing compliance with tax laws. Republicans have led the decades-long effort to defund the agency, ensuring that there will be fewer audits for the very rich. (Back in the 1990s, the IRS audited more than 20 percent of estate tax returns, but more recently it has been able to audit fewer than 4 percent.)

Congressional Republicans cut $20 billion for law enforcement at the I.R.S. in a recent spending bill. I guess GOP opposition to “defunding the police” depends upon which police you’re proposing to defund…

Policies that confer favorable tax rates (and ensure limited enforcement of those on the books) have a number of negative consequences. There is, of course, the matter of fundamental unfairness–I still remember when Warren Buffett pointed out that he paid taxes at a lower rate than his secretary. But there are notable, negative social consequences as well, as a site called “Fight Inequality” enumerates.

The most important rationale for a wealth tax is to reverse the age-old trend of rising inequality. Wealth taxes are meant to move society in the opposite direction, that of promoting equality. Economist Jomo Sundaram stresses the need to “get more revenue from those most able to pay while reducing the burden on the needy.”

Surprisingly, both the World Bank and the International Monetary Fund (WB-IMF) have come out in support of a wealth tax to counter rising global inequalities. This surfaced in a joint WB-IMF conference on Oct. 19, 2021, which noted “the persistence in income inequality” and concluded that a “progressive tax policy is one of the prime tools for addressing such inequality.”

The mere fact of inequality does not, in and of itself, justify imposing a greater tax burden on wealthy taxpayers. Rather, it’s the results that flow from that inequality. Social unrest is one: many uprisings seen around the globe over the past few years have been triggered by resentment of corporate greed, and the accompanying disproportionate exercise of economic and political power–the creation of plutocracies at odds with democratic principles.

Research tells us that systems of significant inequality are incompatible with social stability.

The bias in our tax code and especially the fact of lax enforcement against wealthy tax evaders is a major assault against the rule of law, which rests on the premise that the rules apply equally to everyone. (That is particularly damaging at a time when Trump’s escapes from accountability have already undercut that premise.)

The richest people are also notorious for rampant tax evasion.

The world’s top billionaires, particularly the owners of Amazon, Apple, Facebook, Google, Microsoft, and Netflix have avoided paying billions of dollars in taxes by transferring their wealth to tax havens outside the United States where they also set up shell companies.

Researches have revealed that tax rates by the top billionaires like Warren Buffet, Jeff Bezos, Michael Bloomberg and Elon Musk range from 0.10% to 3.27% while corporate tax rates hover at 35%.

It isn’t just the U.S.

In the Philippines, the richest are not necessarily the top income taxpayers. The Department of Finance’s Tax Watch service showed that for 2012, “only 25 out of the 40 richest Filipinos (as reported by Forbes) are on the Bureau of Internal Revenue’s (BIR) list of top individual taxpayers.”.

Even when identified and charged accordingly, rich tax evaders are also able to escape prosecution or penalties. The BIR’s “Run After Tax Evaders” project has a pitiful accomplishment record. Out of 929 cases against tax evaders from 2005 to December 2018 with total tax collectibles of P148.35 billion, only 14 have been resolved, with only 10 convictions.

It’s difficult for most of us non-billionaires to understand the levels of greed involved, the apparent need for constant acquisition–the grasping for more, more, more. When I was growing up, my mother used to comment that, rich or poor, one could wear only one pair of pants at a time. Presumably, the rich can only sail on one yacht at a time…

There’s a lot wrong with our society today. Tax policy isn’t the reason for all of it, but it’s a big part of the problem.

Comments

What If We Had Mandatory Voting?

A couple of days ago, a commenter suggested that a shift to mandatory voting might help reinvigorate American democracy.

I once thought the only countries requiring citizens to cast ballots were the ones running phony elections, the countries where autocrats could claim an overwhelming mandate after marching people to the polls, but a few years ago, during a cruise of Croatia, I met a retired professor of public administration from Australia, who disabused me of that belief.

It turns out that countries like Australia, Belgium and Brazil all require citizens to cast ballots. In such countries, including Australia, modest fines for non-voting are typically assessed. In Belgium, non-voters may be fined and they may also face disenfranchisement for repeatedly abstaining. In Brazil: voting is also compulsory, but the rule makes several accommodations for illiterate citizens, the elderly, and those living abroad.

Mandatory voting rules require citizens of voting age to register and participate in elections. Penalties for noncompliance range from small fees to restrictions on public services. (In some countries, like Brazil, proof of compliance is needed for public employment or for obtaining a passport.)

In most systems, the rules contain exemptions for valid reasons for not voting– illness, travel, or even religious objections may exempt individuals from penalties. And use of mail-in or other absentee ballots are considered to be in compliance. The mandate is not onerous.

Even people who want to show affirmative disdain for all of the candidates can comply with the law by submitting a blank or spoiled ballot–signifying their vote for “none of the above.”

There’s a fairly substantial body of academic literature analyzing the effects of mandatory voting.

Unsurprisingly, turnout increases dramatically (duh!), but research has also suggested other salutary outcomes. Researchers have found that compulsory voting reduces “socioeconomic biases” in voter turnout. (In countries without required voting, the majority of people who fail to vote are typically poorer.) Vote totals in mandatory systems thus reflect the sentiments of a broader cross-section of the society. As a result, some studies have suggested that governments in countries with mandatory voting are more likely to adopt policies that benefit broader segments of society.

Critics of mandatory voting argue that forcing uninterested or uninformed individuals to vote dilutes the quality of electoral decisions. A 2009 study titled Full Participation: A Comparative Study of Compulsory Voting, for example, highlighted these concerns about uninformed voting. (On the other hand, those of us who live in the U.S. can attest to the fact that making voting mandatory could hardly turn out a higher percentage of uninformed voters that those who routinely go to the polls here. Data shows that Donald Trump’s margin of victory was greatest among those who consume little or no news.”)

When I was doing some superficial research for this post, I also found pundits who argue that making voting mandatory infringes on individual freedom. (Civil libertarian that I am, that was actually my initial reaction during discussion with my fellow passenger.) On reflection, however, I have changed my mind–for a couple of reasons.

I have often said that taxes are the dues we pay for a functioning society, but taxes represent only one part of those “dues.” Other obligations of citizenship include obeying laws and responding to summonses for jury duty. Surely casting a ballot can be considered another such obligation.

Over and above the inclusion of voting as a duty of citizenship, however, is the likely effect of such a mandate on policy.

Poll after poll shows large majorities of citizens supporting or opposing particular policies –preferences that are routinely ignored by America’s lawmakers. Most lawmakers who feel safe ignoring public opinion are the Representatives elected to the House who have been gerrymandered into “safe” districts. As I have often noted, however, gerrymandering is a voter suppression tactic. In a large number of those districts, universal turnout would make purportedly “safe” districts far more competitive–and would send a signal to incumbents that they might actually need to listen to their constituents.

When it comes to the election contests that aren’t subject to gerrymandering–Governors, Senators, President–universal turnout could not possibly give us worse results than those of the 2024 elections.

Will the United States ever impose mandatory voting? Doubtful, in a country where millions of people resist the most modest measures to protect the health and well-being of their neighbors.

But it’s certainly worth putting on our wish list….

Comments