Public Policy and Governance – Page 23

Cultivating Solidarity

A few years before I retired, I attended an academic conference in Sweden on “Social Citizenship,” a concept commonplace in Europe and utterly foreign to Americans. I came away with a far better understanding of both the concept of “social citizenship” and the importance of a robust social infrastructure.

What do I mean by “social infrastructure”?

The dictionary defines infrastructure as the “basic physical and organizational structures and facilities needed for the operation of a society or enterprise.” Most of us are familiar with this definition in the context of physical infrastructure: roads, bridges, sewers, the electrical grid, public transportation, etc. Within the category of physical infrastructure I’d also include physical amenities like parks and bike lanes. Schools, libraries and museums probably fall somewhere between physical and social infrastructure. Purely social infrastructure includes laws that prevent the strong from preying on the weak, and–importantly– the various programs that make up what we call the social safety net.

What made me think about that conference was a recent essay in the New York Times on the concept of solidarity. It began:

These days, we often hear that democracy is on the ballot. And there’s a truth to that: Winning elections is critical, especially as liberal and progressive forces try to fend off radical right-wing movements. But the democratic crisis that our society faces will not be solved by voting alone. We need to do more than defeat Donald Trump and his allies — we need to make cultivating solidarity a national priority.

For years, solidarity’s strongest associations have been with the left and the labor movement — a term invoked at protests and on picket lines. But its roots are much deeper, and its potential implications far more profound, than we typically assume. Though we rarely speak about it as such, solidarity is a concept as fundamental to democracy as its better-known cousins: equality, freedom and justice. Solidarity is simultaneously a bond that holds society together and a force that propels it forward. After all, when people feel connected, they are more willing to work together, to share resources and to have one another’s backs. Solidarity weaves us into a larger and more resilient “we” through the precious and powerful sense that even though we are different, our lives and our fates are connected.

Social solidarity is the antithesis of the tribalism that is tearing America apart. The essay goes into considerable detail about the efforts of the political Right to undermine connections between groups, and also faults leftists who downplay the important role of policy in shaping public sensibilities.

Laws and social programs not only shape material outcomes; they also shape us, informing public perceptions and preferences, and generating what scholars call policy feedback loops….. Policies can either foster solidarity and help repair the divides that separate us or deepen the fissures.

I have repeatedly argued that American solidarity depends upon the allegiance of our diverse tribes to what I call the “American Idea”–the governing philosophy underpinning the Constitution and Bill of Rights. E Pluribus Unum envisions that philosophy as an overarching belief system that unifies Americans while respecting our differences.

I have also argued that America’s inadequate and bureaucratic social safety net ignores a fundamental precept of social solidarity: the concept of membership.

Remember that American Express commercial proclaiming that “membership has its privileges”? Several countries, not just those in Scandinavia, base their social programs on the theory citizens are “members.”

In today’s America, the Right is intent upon excluding disfavored minorities from “membership,” insisting that only White Christians can be “real Americans”–aka members.

The widespread belief that not everyone is entitled to be considered a “member” is one of the central flaws of America’s social welfare system. You can see it in the dramatic differences in attitudes about means-tested welfare (negative) versus Social Security and Medicare (positive). When a benefit is universal, it unifies rather than exacerbating tribal animosities. I’ve never heard anyone complain “those people are driving on roads paid for with my tax dollars!”

One of the great virtues of a Universal Basic Income is that it would be universal. Not only would it eliminate the costs of America’s enormous welfare bureaucracy and the manifest inequities and humiliations of the present programs, it would avoid the stereotyping of recipients that deprives them of human dignity and excludes them from “membership.”

What if government provided a social infrastructure within which all members would be guaranteed a subsistence livelihood, access to health care, a substantive education and an equal place at the civic table, and in return, would exact “dues:” higher taxes and the discharge of civic duties like voting, jury service and a stint of public service?

A girl can dream….

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About That Plan…

An increasing number of media outlets are reporting on Project 2025–a plan by the Heritage Foundation together with other right-wing organizations intended to be a road map for a second Trump presidency.

Pundits have noted Project 2025’s similarity to Victor Orbán’s “illiberal” democracy in Hungary, where Orban has gutted the civil service and filled government positions with loyalists who support his attacks on immigrants, women, and the LGBTQ+ community, and his efforts to distance Hungary from other NATO nations. Orban’s recent trip to Mar-A-Lago was followed by a less-publicized meeting at Heritage.

So–what is in the Project 2025 plan for a second Trump Administration? Heather Cox Richardson recently spelled it out:

Project 2025 stands on four principles that it says the country must embrace. In their vision, the U.S. must “[r]estore the family as the centerpiece of American life and protect our children”; “[d]ismantle the administrative state and return self-governance to the American people”; “[d]efend our nation’s sovereignty, borders, and bounty against global threats”; and “[s]ecure our God-given individual rights to live freely—what our Constitution calls ‘the Blessings of Liberty.’”

In almost 1,000 pages, the document explains what these policies mean for ordinary Americans. Restoring the family and protecting children means making “family authority, formation, and cohesion” a top priority and using “government power…to restore the American family.” That, the document says, means eliminating any words associated with sexual orientation or gender identity, gender, abortion, reproductive health, or reproductive rights from any government rule, regulation, or law. Any reference to transgenderism is “pornography” and must be banned.

The overturning of the 1973 Roe v. Wade decision recognizing the right to abortion must be gratefully celebrated, but the Dobbs v. Jackson Women’s Health Organization decision accomplishing that end “is just the beginning.”

Dismantling the administrative state in this document starts from the premise that “people are policy.” Frustrated because nonpartisan civil employees thwarted much of Trump’s agenda in his first term, the authors of Project 2025 call for firing much of the current government workforce—about 2 million people work for the U.S. government—and replacing it with loyalists who will carry out a right-wing president’s demands.

The Global Project Against Hate and Extremism describes Project 2025 as a significant threat to democracy. Spearheaded by Heritage and supported by more than 80 extremist organizations, the plan aims to “rescue the country from elite rule and woke cultural warriors.” The Global Project notes reports of internal discussions centered around a proposal that the next “conservative” President invoke the Insurrection Act on his first day in office, in order to allow use of the military to quell civil unrest.

Project 2025 plans what it calls a “robust governing agenda,” with all of the hallmarks of authoritarianism.

It threatens Americans’ civil and human rights and our very democracy. The America that Project 2025 wants to create would involve a fundamental reordering of our society. It would greatly enhance the executive branch’s powers and impose on all Americans policies favored by Christian nationalists regarding issues such as sexual health and reproductive rights, education, the family, and the role of religion in our society and government. It would strip rights protections from LGBTQ+ people, immigrants, women, and people of color. It would dismantle much of the federal government and replace our apolitical civil service with far-right partisans it is already training in anticipation of a power shift. It would end attempts to enhance equity and racial justice throughout the government and shut down agencies that track progress on this front. Efforts to tackle issues such as climate change would be ended, and politicized research produced to back the project’s views on environmental policy, the evils of “transgenderism,” and women’s health would take priority.

There is more, obviously, in a thousand-page document, and it’s all very chilling, but what strikes me is how explicit and professional it is.

Project 2025 represents a very troubling step up from the tracts and manifestos produced by the disaffected and generally disturbed members of militias and groups like the Proud Boys and Oath Keepers. This is a professional document, produced and endorsed by people and organizations that already wield considerable power and influence–extremists who have already massively infiltrated the courts, completely taken over of one of America’s major political parties, and who “own” numerous lawmakers in Congress and in a number of states. Those “fellow travelers” are easily identifiable: we need only look at the GOP Representatives who oppose aid to Ukraine, attack trans children, and advocate for a national abortion ban. (Here in Indiana, that includes far-Right Congressman Jim Banks, currently running for the Senate, among others.)

The fact that Heritage felt free to put it in writing tells us the takeover is well underway. That should terrify us all…..

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A Bill Passes. Then What Happens?

Making policy–passing laws–requires a series of decisions. It begins with (and is often stymied by failure to reach) an agreement on the existence, nature and extent of the problem to be solved. When lawmakers do see the same problem, and agree on why something is a problem, they then have to come to some consensus on what action is needed to solve or ameliorate that problem. Then–in our age of “privatization”–they need to determine who should enforce the agreed-upon remedy. Should those empowered to deliver the new service or oversee compliance with the newly-passed regulation be government employees, or should that obligation be vested in the private or non-profit sector?

And finally, once the problem has been identified, a solution agreed upon, the means of enforcement determined, and the law passed, a sound policy process will vet how the new law performs–evaluate its effectiveness in actually addressing the original problem, and noting–and ideally correcting–any negative unanticipated effects.

This process will inevitably involve debate and discussion, and in an era of technological and social complexity, creating sound policy increasingly requires careful attention to sources of specialized expertise in the matter at hand.

Unfortunately, today’s Republicans and Democrats can’t even agree on what time it is, let alone what our actual problems are. The GOP buffoons who increasingly dominate America’s legislative chambers ignore virtually all the “grunt work” needed for sound policymaking. When they aren’t fundraising, preening for Faux News cameras or producing television ads blaming “others” for real and imagined social problems, they are using legislative tactics to block rather than produce policies.

(This is frustrating for all serious citizens, of course, but I spent the last 21 years of my career teaching policy, and watching the total abandonment of actual governance in favor of performative antics is beyond painful.)

It’s one thing to outline the steps of the policy process, as I’ve done above. But just as a (non-AI) picture can be worth a thousand words, a real-life example can be more illustrative than an abstract process outline. So let’s look at a tax bill that Trump still touts as evidence of…something.

As the Institute on Taxation and Economic Policy explains:

The tax overhaul signed into law by former President Donald Trump in 2017 cut the federal corporate income tax rate from 35 percent to 21 percent, but during the first five years it has been in effect, most profitable corporations paid considerably less than that. This is mainly due to loopholes and special breaks that the 2017 tax law left in place and, in some cases, introduced. Corporate tax avoidance occurs because Congress allows it to occur, and the Trump tax law in many ways made it worse.

Tax policy is one of many intractable dividing lines between Republicans and Democrats, and it is a given that the tax overhaul of 2017 was not a product of agreement over the nature of the problem. Republicans think the problem is that businesses have to pay too much; Democrats think the problem is that wealthy folks aren’t paying their fair share. Clearly, a tax cut for profitable businesses is not the result of agreement on the nature of the problem. But the linked report focuses on the part of the policy process that both parties–and the Keystone Kops in Congress–routinely ignore.

How is it working?

The Institute looked at taxes paid by profitable corporations.

The 342 companies included in this study paid an average effective income tax rate of just 14.1 percent during this five-year period, almost a third less than the statutory rate of 21 percent.
Nearly a quarter of the corporations in this study (87 companies) paid effective tax rates in the single digits or less during this five-year period.
Of these, 55 (16 percent of the total 342 companies) paid effective rates of less than 5 percent. This is particularly striking given that all these companies were profitable for at least five years consecutively. Companies paying less than 5 percent include T-Mobile, DISH Network, Netflix, General Motors, AT&T, Bank of America, Citigroup, FedEx, Molson Coors, Nike, and many others.
Twenty-three corporations paid zero federal tax over the five-year period despite being profitable in every single year. And 109 corporations paid zero federal tax in at least one of the five years.
At the other end of the spectrum, 50 corporations paid effective tax rates of more than 21 percent, but most of these companies were also the beneficiaries of large tax breaks because they were paying taxes from previous years that they delayed using depreciation breaks.

One obvious “fix” for this would be passage of the global minimum tax negotiated by the Biden administration that’s currently being blocked by GOP lawmakers more interested in currying favor with special interests than engaging in the policy process.

Americans deserve better.

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A Moment Of Clarity

I have previously cited and linked to Heather Cox Richardson’s daily Letters from an American, but a recent one deserves more than a passing mention. In it, Richardson does a masterful job of clarifying the stakes of November’s election.

She begins by reminding us of the events leading up to the choice we will face, reminding readers that–once it had become clear Trump had lost the 2020 election– he’d given up “all pretense of normal presidential behavior.” Not only did he try to overturn the election, ignoring the will of the voters, “his attack on the fundamental principle of democracy ended the tradition of the peaceful transfer of power established in 1797 when our first president, George Washington, deliberately walked behind his successor, John Adams, after Adams was sworn into office.”

Trump has continued to push the Big Lie, and his loyalists in the states have embraced that lie, undermining faith in our electoral system. His theft of enormous amounts of classified materials has compromised national security.

We know all this, although the recitation/reminder is important. But–as historians like Richardson are well aware–past is truly prologue.

Trump is not the same as he was in 2020, and in the past three years he has transformed the Republican Party into a vehicle for Christian nationalism.

In 2016 the Republican Party was still dominated by leaders who promoted supply-side economics. They were determined to use the government to cut taxes and regulations to concentrate money and power among a few individuals, who would, theoretically, use that money and power to invest in the economy far more efficiently than they could if the government intervened. Before 2016 that Reaganesque party had stayed in office thanks to the votes of a base interested in advancing patriarchal, racist, and religious values.

But Trump flipped the power structure in the party, giving control to the reactionary base. In the years since 2020, the Republican Party has become openly opposed to democracy, embracing the Christian nationalism of leaders like Hungary’s Viktor Orbán, who maintains that the tenets of democracy weaken a nation by giving immigrants, people of color, LGBTQ+ individuals, and women the same rights as heterosexual, native-born white men.

Richardson then underscores what most of us who follow politics know–that today’s GOP looks absolutely nothing like the Republican party of the past.

Rather than calling for a small federal government that stays out of the way of market forces, as Republicans have advocated since 1980, the new Trump Party calls for a strong government that enforces religious rules and bans abortion; books; diversity, equity, and inclusion programs; and so on. In 2022, thanks to the three extremists Trump put on the Supreme Court, the government ceased to recognize a constitutional right that Americans had enjoyed since the 1973 Roe v. Wade decision: the right to abortion.

The far-right Trumpers have paralyzed the House of Representatives.

Republican members who actually want to pass laws are either leaving or declining to run for reelection. The conference has become so toxic that fewer than 100 members agreed to attend their annual retreat that began today. “I’d rather sit down with Hannibal Lecter and eat my own liver,” a Republican member of Congress told Juliegrace Brufke of Axios.

Richardson ticks off some of the actions Trump has promised if he wins in November: purging the nonpartisan civil service created in 1883, in order to replace career employees with Trump loyalists; weaponizing the Department of Justice and the Department of Defense; rounding up 10 million people– “not just undocumented immigrants and asylum seekers but also those with birthright citizenship,” and putting them in camps, ignoring a “right that has been enshrined in the Constitution since 1868;” cutting Social Security and Medicare; and being a “dictator on Day One.”

She then enumerates many of the achievements of the Biden Administration, drawing a stark contrast between an incredibly consequential President who has worked within the traditions of this country and an autocratic madman.

Every American following the news can probably point to policies of the Biden administration with which they disagree. That’s par for the course in every administration. Liz Cheney probably said it best: we can survive what we consider bad policy, we cannot survive a president who torches the Constitution.

It is incredibly disheartening to realize that millions of our fellow-Americans harbor resentments and hatreds that this repulsive buffoon has exploited–grievances for which he serves as a vehicle. But I refuse to believe that those angry and limited people represent anything close to a majority. If they did, Republicans wouldn’t be so frantic to suppress the vote.

Click through, read Richardson’s entire Letter–and VOTE as if your life depended upon it, because in a very real sense, it does.

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No Good Deed Goes Unpunished

Well, it appears I’ve missed an intriguing element of those abysmal “ad wars” being waged among candidates for the Republican gubernatorial nomination.

Apparently, Eric Doden’s most recent weird ad–in which he highlights his support for qualified immunity (and anything police might ever do) is based upon the only position Braun took during his six years as a Senator with which I actually agree–he sponsored a bill that would narrow the application of that doctrine. In the current primary contest, that’s a vulnerability.

What’s that old saying? No good deed goes unpunished.

I’ve addressed qualified immunity previously. To recap: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now known to practicing lawyers–especially civil rights lawyers– as Section 1983. It gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

That’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine it dubbed “qualified immunity.” As a judge in one case noted, it might just as well be called “absolute immunity.” Ruth Marcus explained it in a Washngton Post article a few years ago:

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

In 1982, in a case called Harlow v. Fitzgerald, the Court established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, the first person to litigate a specific harm is out of luck, since the “first time around, the right violated won’t be ‘clearly established.’” A post on Lawfare gave an example.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” The doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

One legal scholar has characterized the doctrine as a “through-the-looking-glass” example of jurisprudence that doesn’t simply excuse police violations of constitutional rights, doesn’t just grant police an exception to the axiom that “ignorance of the law is no excuse,” but that actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

I will admit to surprise–shock, really–that Braun understood the pernicious effects of this judge-made doctrine, and the way it encourages reckless police behavior. It is beyond ironic that his one bit of sensible behavior has become his biggest vulnerability in this primary.

But no problem! His recent ads–showing slavish support for police and “law and order”– confirm that Braun is always about politics and never about integrity.

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