Public Policy and Governance – Page 23

The Importance of How

The essential question that faces all policymakers is “what should we do about problem X.” That question has two parts. Once problem X has been identified, and a goal has been established (solving problem X), the remaining question becomes how.

After all, we could dramatically reduce crime by locking citizens in their homes between, say, 7:00 p.m. and 7:00 a.m. We could reduce the transmission of flu by decreeing that all Americans wear masks during flu season. You can probably think of other methods of approaching social problems that would undoubtedly achieve their goals, but would simply create hostility, division and other problems.

Of course, deciding the proper “how” requires some fundamental agreement on the nature of the problem. We’re seeing this now, with the issue of immigration. Republicans define the problem as too many of “those people” entering the country; Democrats see it as the challenge of distinguishing between criminals and legitimate refugees entitled to help while hampered by obsolete laws and a dramatically under-resourced system.

When I taught my Law and Policy students, I focused upon the importance–and complexity–of those “how” solutions. Do we have broad agreement on the problem and what a satisfactory solution might look like? If so, how do we craft a policy that will achieve that solution without inadvertently creating or exacerbating other problems?

I recently read a Washington Post column that focused on a vivid example.

There is a grim, fairly popular story of the American social contract that goes roughly like this: Motivated by entrenched racial hostility, the greed of the rich (or maybe something else), the richest country on the planet refuses to develop a true welfare state that might secure the well-being of its citizens.

The column proceeds to examine the extensive social science research confirming the nature and extent of America’s inequality, and the multiple social problems that have been attributed to poverty and inequality.

Taxation and redistribution have been successfully resisted, branded as illegitimate scams to feather the beds of welfare queens. Globalization and technological disruption have been embraced even as the institutions designed to protect the most vulnerable workers — unions, minimum wages — have lost their power to provide for a dignified living.

In this American story, the less fortunate — Black, Brown and White — are left to scratch by as best they can, often falling into a deep well of misery. The rich engorge themselves way beyond anything seen in other wealthy, industrialized societies of the West. And yet, though the destitution is clear for all to see, recent research suggests that the story built around it is, at best, incomplete.

In fact, as a number of researchers have confirmed, the United States spends a lot of money on redistribution–on that word Republicans find so repulsive: welfare. The problem isn’t that we haven’t funded programs intended to help the needy, the problem is how those programs work–or (mostly) don’t.

Inequality might not cause these symptoms on its own. Instead, many of America’s social maladies stem from the strategies it has chosen to mitigate the lopsided distribution of income, which leave its citizens singularly vulnerable.

The essay went on to suggest “fixes” with which I largely disagreed, because I have concluded that the worst aspect of America’s social welfare system is its tendency to divide, rather than unify our citizenry. (Our patchwork “system” is also wasteful, far too bureaucratic, and inaccessible to the working poor, but those are problems for a different post.)

As I have repeatedly argued, public policies can either increase or reduce polarization and tensions between groups. Policies to help less fortunate citizens can be delivered in ways that stoke resentments, or in ways that encourage national cohesion. Currently, far too many Americans have very negative attitudes about welfare programs for poor people. In contrast, overwhelming majorities approve of Social Security and Medicare. That’s because Social Security and Medicare are universal programs; as I’ve previously noted, virtually everyone contributes to them and everyone who lives long enough participates in their benefits.

Just as we don’t generally hear accusations that “those people are driving on roads paid for by my taxes,” or sentiments begrudging a poor neighbor’s garbage pickup, beneficiaries of programs that include everyone (or almost everyone) are much more likely to escape stigma.

In addition to the usual questions of efficacy and cost-effectiveness, policymakers should evaluate proposed programs by considering whether they are likely to unify or further divide Americans. Universal policies are far more likely to unify, to create social solidarity–an important and often overlooked argument favoring a Universal Basic Income.

In our current, highly polarized political environment, we need to focus on whether the solutions to social problems unify or further divide our quarrelsome nation.

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The Right To Vote

File under “They aren’t even pretending.”

Indiana’s deplorable legislature is in session (you can tell by the number of us cringing during news reports), and the outnumbered Democrats are battling attacks on Indianapolis, on public education, and on voting.

Democratic Representative Carrie Hamilton introduced a bill that would extend Indiana’s shortest-in-the-nation voting hours. The bill would allow voters to cast ballots until 8:00 p.m. rather than the current cut-off at 6:00, as is currently the case in most states. Rather obviously, a 6:00 p.m. cutoff primarily disadvantages lower-income workers who lack the flexibility of professionals and business executives.

Our legislative overlords–the GOP super-majority–immediately nixed Hamilton’s effort. Presumably, they’re worried that extending the time to vote would increase the turnout of “those people” who– they worry– tend to vote Democratic.

Making it difficult for certain people to vote has become a favorite Republican suppression tactic, along with the party’s ongoing commitment to gerrymandering.

Readers of this blog know me to be a vigorous defender of the U.S. Constitution, but it is impossible to overlook several provisions of that document that have become obsolete (i.e. the Electoral College) or others that are missing from it. Election expert Richard Hasan outlined one of the most important of those omitted provisions in a recent column for the New York Times.

The history of voting in the United States shows the high cost of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.

Hasen pointed out that most expansions of voting rights in the United States are the result of constitutional amendments and congressional action. The Courts have routinely reiterated that the the Constitution doesn’t contain any guarantees of the right to vote for President (see Bush v. Gore, in which the Court also ruled that states may take back the power to appoint presidential electors directly in future elections.)

As most lawyers know, and as Hasen points to

the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.

Hasen’s column provides several examples of the Court’s reluctance to find a right to cast a ballot, and it is one more gloomy element to assess in what is shaping up to be an election deciding the fate of American democracy.

He then turns to state-level efforts to restrict voting.

Often, voting restrictions are an effort to shape the universe of those who vote. Although both parties have played this game over time, today it is mostly Republican-led states that seek to limit the franchise, out of a belief that lower turnout, especially among those they expect to vote for Democrats, helps Republicans.

Finally, Hasen points to three reasons to pass a constitutional amendment confirming a positive right to vote: it would prevent states from limiting the franchise and erecting barriers intended to prevent voting by eligible voters, like onerous residency requirements or strict voter identification laws; it would diminish the current explosion of election litigation–which has nearly tripled since 2000;. and it “would moot any attempt to get state legislatures to override the voters’ choice for president through the appointment of alternative slates of electors, as Donald Trump and his allies tried to do after the 2020 election.”

Rules that guarantee not only the right to vote but also the right to have that vote fairly and accurately counted would provide a basis for going after election officials who sought to disrupt the integrity of election systems. Leaks of voting system software or an administrator’s lack of transparency in counting ballots could become constitutional violations.

In many ways, our Constitution is a marvelous document, but the addition of an affirmative right to vote would definitely improve it.

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Running Against Looney-Tunes

As I’ve been following Indiana’s races for both the Statehouse and the U.S. Senate, I’ve come to realize that what passes for “the Left” in the Hoosier state has a lot in common with the more liberal Republicanism of my younger days. For example, when the GOP was still a political party and not a cult, I was a member of “Republicans for Choice”–along with lots of other Republicans.

Another good example is my friend Trish Whitcomb’s campaign for Indiana House District 69.

Trish’s father was former Indiana Governor Ed Whitcomb. Governor Whitcomb–then a traditional Republican– championed the environment, childcare, and increased federal funding for education. Trish shares those values–I first met her when we were both focused on the health of public education in Indiana–but today’s GOP has abandoned all of them, so Trish is a Democrat.

And her campaign–like that of Marc Carmichael, who is running for U.S. Senate–pits her against a wack-a-doodle Republican. In Carmichael’s case, it’s “god squad” Jim Banks; in Trish’s case it is “armed at all times” Jim Lucas.

Lucas has been in the news a lot lately. A few weeks ago, it was for drunk driving; this week it was for flashing his holstered handgun at students who were visiting the Statehouse seeking legislative action to curb gun violence.

When contacted by TheStatehouseFile.com later and told the students were threatened by him flashing a gun, Lucas shrugged off the incident. He said he was “simply showing an inanimate object” in order to prove a point about guns.

Lucas has a well-earned reputation as the legislature’s most rabid “gun nut”–he routinely introduces and sponsors bills further weakening restrictions on firearms, and is on record advocating arming teachers. He shrugs off the concerns of law enforcement, insisting (along with the NRA) that personal safety can only be secured by “good guys” with guns. In 2022, he suggested the Uvalde school shooting might be a false flag to take away Americans’ gun rights.

During the confrontation with the students, he mischaracterized a Supreme Court ruling, insisting that the Court had decided police have no obligation to protect them.

The conversation included a back-and-forth between Lucas and the students. Lucas told the students the police are not obligated to protect them so they needed to be prepared to protect themselves. He brushed off the students’ comments about the impact of school shootings on their lives, saying no law is going to fix gun violence.

It isn’t simply his love affair with guns. Lucas’ Facebook page has been a scandal for years. As a columnist for the Indianapolis Star put it back in 2022,

Call me naïve, but there was a time when I believed maturity came with age and with certain positions came a sense of decorum and standards of behavior.

Well, I’ve learned this is not the case: Maturity and age aren’t synonymous, and just because you’re in an esteemed position doesn’t mean you act accordingly.

That brings me to Rep. Jim Lucas, R-Seymour, who I’m convinced is stuck in adolescence. How else can you explain his continual sophomoric behavior?

Lucas has a long list of controversial posts, which I’ll get to later, but his latest gaffe had him backtracking on Facebook, trying to explain why he made such a post. Lucas used a quote possibly erroneously attributed to Joseph Goebbels — a Nazi. But not just any Nazi. Goebbels was the minister of propaganda. He and his wife poisoned their children and killed themselves.

The column went on to list other Lucas posts: one of a woman in a car trunk, posing the question of whether your wife or dog loves you more, and several making light of violence against women; a photo of a gallows with two rope nooses together with an article about a Black man who had pleaded guilty to rape; a photo of Black children dancing along with the words “We gon’ get free money!”

In fact, Lucas’ Facebook page has long been a cesspool of racist and misogynist posts and comments. The Star column pointed out that, in 2021, when Black legislators shared their experiences with racism, “Lucas decided he didn’t have to listen and walked out.”

The news media do a real disservice by labeling people like Banks and Lucas “conservative.” The party that used to be home for genuine conservatives had a platform; it offered policy ideas. You might agree or disagree with those ideas, but they fostered the kind of debate and negotiation that made legislation better. It is unfair to genuine conservatives (who today are largely “Never Trump” ex-Republicans) to call a collection of rightwing clowns, wack-a-doodles, and proto-fascists “conservative.”

Visit Trish Whitcomb’s website and send her some money. And while you’re at it, send some to Marc Carmichael.

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Then And Now

A week or so ago, my husband and I watched an American Experience episode titled “Nazi Town”–a PBS documentary about the extent of pro-fascist opinion in the United States in the run-up to World War II.

The documentary left me both saddened and (unexpectedly) hopeful.

I was saddened–to put it mildly– to learn of the enormous numbers of Americans who had embraced Nazi ideology. Until recently, I had assumed that the great majority of Americans actually believed in democratic government and the protection of civil liberties. I knew, of course, that a minority of my fellow-citizens harbored less comforting views, but I had no idea of the extent to which the American people endorsed truly horrific hatreds and were ready–indeed, eager–to hand the country over to a strongman who would relieve them of any responsibility for political decision-making.

In the 1930s, the nation had dozens and dozens of “Nazi camps,” where children were indoctrinated with White Nationalism. The German-American Bund enrolled hundreds of thousands of Americans who affirmed the notion that the country was created only for White Protestant Christians, and endorsed a “science” of eugenics confirming the superiority of the Aryan “race.” Racism and anti-Semitism were rampant; LGBTQ folks were so deep in the closet their existence was rarely recognized.

All in all, “Nazi Town” displayed–with scholarly documentation and lots of footage of huge crowds saluting both the American flag and the swastika –a very depressing reality.

But the context of all that ugliness also gave me hope–even in the face of the MAGA Trumpers who look so much like the Americans shown giving the “heil Hitler” salute.

I’m hopeful because we live in a society that is immensely different from that of the 20s and 30s.

During those years, the country experienced a Depression in which millions of Americans were jobless and desperate. America was also in the throes of Jim Crow, and most White and Black Americans effectively occupied separate worlds. Thousands of people–including public officials– wore white robes and marched with the KKK. Europe’s age-old, virulent anti-Semitism had not yet “matured” into the Holocaust, and Hitler’s invasion of Poland–and knowledge of what came after–were still in the future. Few Americans were educated beyond high school.

World War II and discovery of the Holocaust ultimately ended the flirtation with fascism for most Americans, and in the years following that war, the U.S., like the rest of the world, has experienced considerable and continuing technical, social and cultural change. As a result, the world we all inhabit is dramatically different from the world that facilitated the embrace of both fascism and communism. (In fact, it is the extent of those differences that so enrages the MAGA culture warriors.)

Today, despite the contemporary gulf between the rich and the rest, America overall is prosperous. Unemployment has hit an unprecedented low. Many more Americans are college educated. Despite the barriers that continue to face members of previously marginalized populations, people from different races and religions not only live and work together, they increasingly intermarry. Many, if not most, Americans have gay friends, and some seventy percent approve of same-sex marriage. Television, the Internet and international travel have introduced inhabitants of isolated and/or homogeneous communities to people unlike themselves.

Although there is a robust industry in Holocaust denial and other forms of racial and religious disinformation (I do not have a space laser), Americans have seen the end results of state-sponsored hatreds, and even most of those who harbor old stereotypes are reluctant to do actual harm to those they consider “other.”

The sad truth is that many more of my fellow Americans than I would have guessed are throwbacks to the millions who joined the KKK and the German-American Bund. The hopeful truth is that–even though there is a depressingly large number of them–they are in the minority, and their numbers are dwindling. ( It’s recognition of that fact, and America’s changing demography, that has made them so frantic and threatening.)

I firmly believe that real Americans reject the prejudices that led so many to embrace Nazi ideology in the 20s and 30s.

Today, most of us understand that real Americans aren’t those who share a preferred skin color or ethnicity or religion. Real Americans are those who share an allegiance to the American Idea–to the principles enumerated in the Declaration, Constitution and Bill of Rights.

In order to send that message to today’s fascists and neo-Nazis, we need to get real Americans to the polls in November.

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Disagreeing With David French

Yesterday, I promised to discuss an issue on which I strongly disagree with David French. Chevron is that issue.

Allow me to explain.

The Supreme Court is currently hearing a case that’s likely to overturn or eviscerate something called the Chevron Doctrine. That doctrine requires courts to “defer” to an agency’s interpretation of an ambiguous statutory delegation.

For example, Congress might direct the EPA to achieve a certain clean air result, but since few Congressmen have the technical background to tell the EPA just how to achieve that result, experts at the EPA must determine what regulations are needed to reach that goal. The Chevron doctrine requires the courts to “defer” to that agency’s expert determination unless the court finds it unreasonable.

French argues that overturning the doctrine would “rebalance” the division of authority between the branches of government. His argument centers on “democratic accountability” and the fact that Congress is broken.

Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks. It’s been 27 years since it even passed a budget on time. And that barely begins to capture the current level of dysfunction, with a razor-thin House Republican majority consistently held hostage by a mere handful of MAGA extremists.

As Congress has shirked its duties, presidents and the courts have filled the power vacuum. Presidents have used the power of their executive agencies to promulgate new regulations without congressional involvement. Executive agencies publish 3,000 to 4,500 new rules per year, and these regulations have a substantial impact on the American economy. Compounding the problem, courts have ratified that presidential power grab by enacting a series of judge-made rules that require federal courts to defer to the decisions of executive agencies.

The answer to “rebalancing” the power dynamic between Congress and the Executive branch is to fix Congress. It isn’t to require federal judges to substitute their judgments for those of experts on increasingly technical issues.

The current doctrine provides an adequate remedy for instances where agencies have overstepped or acted irresponsibly–“unreasonably.” Jettisoning the doctrine will truly open those storied “floodgates of litigation,” allowing monied business interests to tie up proposed regulations for years and hampering agency operations with overly intrusive reviews.

Chevron deference has served the country well. In his Substack letter, legal scholar Steven Vladick addressed French’s “democratic accountability” argument head on.

A common response to that objection is that a world without Chevron is a world in which those interpretive questions won’t be answered by Congress; they’ll be answered by even less democratically accountable federal judges—who are the real “victims” of Chevron deference. After all, if a statute is ambiguous, the real question Chevron asks is whether the agency or the reviewing court is better situated to resolve the ambiguity. To be sure, some of Chevron’s critics argue that this is a false dichotomy—that the real point is that Congress ought to be forced to be clear in all of its delegations to agencies.

There are somewhere north of 430 federal agencies; even if Congress devoted one calendar day each year to one agency, it wouldn’t get to all of them. Thus, the debate in the typical case is usually going to reduce to a choice between leaving the power to resolve the interpretive dispute to the agency’s reasonable discretion or to the courts. Whatever the pros and cons of the two sides in that debate, it’s clear that the case for the courts in that situation is not about increasing democratic accountability.

Vladick also points out that–with respect to democratic accountability– we vote for the President, who can directly control his subordinates. (Although he does’t mention it, no one votes for federal judges.)

French admits that agencies regulate complex businesses and industries, and that they “possess a level of expertise that’s clearly beyond the capabilities of Congress.” He objects to Chevron’s required deference because, in his opinion, it gives the Executive branch too much power.

It’s an abstract argument for a very non-abstract problem.

Let’s get real: A rule requiring judges to “defer” (not “buckle”) to agency decisions when those regulations pass a “reasonableness” test is absolutely necessary in a world where government agencies deal with increasingly complex, highly technical issues that judges simply lack the expertise to decide.

Experts may get things wrong, but I don’t want Aileen Cannon deciding how many parts of arsenic per million should be allowed in the nation’s waterways, or Matthew J. Kacsmaryk invalidating more FDA regulations.

In a war on knowledge, we’ll all suffer.

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