Public Policy and Governance – Page 241

Why Am I Not Surprised?

Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.

The Indiana Supreme Court ruled April 19 that it won’t compel lawmakers to release their emails to the public, even though it said the Access to Public Records Act applies to the General Assembly. The court said the separation of powers in the Indiana Constitution means the courts should not tread on lawmakers’ turf.

Now, Pence wants that same logic applied to him.

Of course he does. He also wanted to operate his very own “news bureau,” so that “news” would portray him in a favorable light.

The Indiana Supreme Court’s decision in the recent Koch case dismayed the legal community, for a number of reasons. The Court cited separation of powers–saying that it lacked the authority to overrule the legislature’s own interpretation of the law requiring disclosure.

In the Koch case, Citizens Action Coalition and two other groups the tried to get access to emails between utility companies and Rep. Eric Koch, R-Bedford, who is chairman of the House Energy Committee. The Supreme Court found that determining whether those documents counted under the APRA as legislative work is a “non-justiciable question,” meaning a matter it cannot adjudicate.

In the immigration case, Groth requested the contract the governor entered into with Barnes & Thornburg, who sued for the state instead of Indiana Attorney General Greg Zoeller, as well as copies of firm’s invoices. He also sought emails between the Texas Attorney General, who led the suit, and Pence’s office.

But the documents Groth received back were “heavily redacted,” he said, so he complained to the Public Access Counselor and ultimately filed the suit.

What is at stake here is a basic tenet of good government: are citizens entitled to information about contracts that their elected officials have entered into? Information about the expenses involved? The usual answer is: yes. That’s what is meant by transparency–an important aspect of democratic governance.

If voters cannot access information about the way their government works, they lack important information on which to base their votes. We call that sort of information “accountability.”

Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true.

Kerwin Olson, executive director of the Citizens Action Coalition, said he was worried the Supreme Court case would have negative, far-reaching implications, and this appears to be one of them.

“The Pence administration is already citing Koch as an additional authority to deny releasing government documents,” Olson said. “it’s quite astonishing and troubling. It further shuts the door to accountability and transparency in government when we should be going the opposite direction.”

The Indiana Supreme Court’s ruling is troubling, and not just because it is an open invitation to Mike Pence and the legislature to shield their actions from the voters. As Steve Key, executive director of the Hoosier State Press Association, noted

“If the judiciary takes this position, it would eviscerate the Access to Public Records Act because every agency would argue that a judge shouldn’t judge whether a document should be released under an APRA request if the agency’s position is that the record is part of its internal operations,” Key said. “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

Ya think?

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Interim Report on an Interim Committee

As some readers of this blog know, I was appointed to a Special Interim Study Committee on Redistricting, convened by the Indiana Legislature. Yesterday was our second meeting; we heard three presentations and took public testimony.

The first presentation was… interesting. It was offered by Jim Bopp.

For those who don’t know of him, Bopp is an uber-conservative Indiana lawyer on the wrong side of pretty much everything: he was the architect of –and won–Citizens United, and he has argued against same-sex marriage, reproductive choice….He’s pretty infamous in Indiana but until he appeared before the committee, I was unaware that he had any background in redistricting.

Actually, if his testimony reflected his knowledge of the issue, he probably doesn’t know much about it; he just favors anything that keeps Indiana Republicans in control. (In a later presentation, former Indiana Supreme Court Justice Ted Boehm–an expert on the law of redistricting– noted that Bopp had made several assertions that were factually inaccurate.)

Bopp’s basic argument for keeping redistricting in the legislature was straightforward, if bizarre: Since all choices inevitably have partisan consequences, establishing an independent commission to draw district lines would not be any better than the system we have now. (I am not making this up.)

When Senator Lanane asked him if having elected officials draw their own districts wasn’t an inherent conflict of interest, he disagreed, offering a convoluted argument that allowing lawmakers to choose their voters is no more self-interested than letting people vote for a representative whose policies will benefit them. ( I couldn’t make that up!)

I asked Bopp whether he was familiar with the academic literature suggesting that public trust in the legitimacy of the system improved in states that adopted nonpartisan redistricting. He dismissed the public’s opinion as an artifact of a biased media. I wasn’t sure I’d understood his response, so I asked him a follow-up, “Do I understand you to be saying that the public’s attitude is irrelevant?” and his answer was “yes, because the public’s attitude is the result of propaganda, and is wrong.”

So there.

The other presentations were markedly more substantive and informative. Tom Sugar presented his “No Politics Plan” modeled on the redistricting system used in Iowa. (It can be accessed here.) Judge Boehm led us through the thickets of current constitutional law on the issue. (Most of what he presented is included in my paper on Electoral Integrity: How Gerrymandering Matters, which he was kind enough to review for me a while back.)

When it came time for public testimony, we heard from citizens ( some of whom had come from as far away as South Bend), and representatives of statewide civic organizations. Not surprisingly, all of the public testimony urged reform of the current system.

I am convinced that if the Interim Study Committee acts, it will be because so many citizens turn out every time there is a hearing. This one was on a Thursday afternoon, after relatively short notice, and the hearing room could not hold them all; an equal or larger number was in the hall, watching the proceedings on a television. The message was unmistakable: Indiana citizens want change. They want competitive, meaningful elections. They want trustworthy democratic institutions.

Unlike Jim Bopp, they don’t think the players should get to be the umpires.

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The Trump Doctrine

So, The Donald won Indiana’s primary, and is positioned to win the GOP nomination. Should he (God forbid!) win in November, he’ll have possession of the nation’s nuclear codes, among other unthinkable things.

So how much does he understand about foreign affairs (other than the sexual kind)?

Fact free and incoherent….That evaluation, from one actual foreign policy expert, was one of the nicer reactions to Trump’s ballyhooed “Presidential” foreign policy speech. The Guardian listed ten glaring contradictions within the speech–some within just a couple of minutes of each other.

At the Brookings Institution, trying for a more measured analysis, Thomas Wright noted that there was nothing new (or very specific) in the speech, but identified five “take-aways”from the speech. Those “take-aways” should terrify anyone who has even the slightest understanding of the world and the nature of our relations with other countries: Trump would simply end current U.S. alliances in Europe and Asia (make them all pay for their own defense); he would pursue an isolationist strategy (“He opposes democracy promotion, multilateralism, security guarantees, and, implicitly, keeping the global commons open for use by all nations”); he would “make a deal” with China and Russia (no details–just an assertion by the bloviating, self-proclaimed “dealmaker”). As Wright noted, the speech was intended for the GOP establishment–not the party’s foreign policy experts; and –surprise!–he views policy in this area, as in all others, as all about The Donald.

Trump spent quite a lot of time talking about how important it is that other leaders respect the American president. He complained about foreign leaders not meeting President Obama when he stepped off Air Force One. He spent a couple of minutes on Obama’s unsuccessful effort to win the Olympics for Chicago. This gave us a window into the temperament of a President Trump—he would read a lot into what others said about him and on his personal rapporteur with other leaders. He would likely to be drawn to men like him.

As I copied and pasted that quote, cold shivers went down my spine…..

At Dispatches from the Culture Wars, Ed Brayton also analyzed the speech, albeit a bit less dispassionately.

But even though it was a pre-written talk that has taken weeks and weeks to prepare, it was little more than a slogan: “America first.” ….

Boy, that’s original. Guess who used it first? Pro-Nazi Charles Lindbergh, who created the America First Committee to defend Hitler’s aggression and criticize Jews who were advocating that America get involved in WW2.

You expected more from a guy who retweets sentiments from Mussolini, and accuses a political rival’s father of complicity in JFK’s assassination?

Why did I come away from this “important” speech with a distinct impression that The Donald couldn’t locate–or spell– most countries with which we have strategic interests if asked to point to them on a map–let alone identify America’s long-term global interests?

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The “Liberty/Equality” Conundrum

In my classes, when I get to the 14th Amendment’s Equal Protection Clause, I generally begin with a discussion of what Americans mean by “equality,” and the perceived tension between equality and liberty.

Clearly, if we are talking about the operation of law and civil government, we are bound to understand the call for equality as limited to those areas in which government operates, and not surprisingly, there is a pretty substantial literature exploring what it means to be “equal before the law”– to have equal civil rights and liberties.

It isn’t simply us lawyer types, either; political philosophers have argued for years–okay, centuries!–that government efforts to nudge us in the direction of egalitarianism–that is, in the direction of material equality— diminish liberty and are ultimately immoral, because advocates of redistribution tend to ignore the issue (near and dear to more libertarian hearts) of merit or desert. Those who see it that way read the famous Marxist admonition: “from each according to his ability, to each according to his need” as support for expropriation — a system where productive and conscientious workers would be taken advantage of by the ineffectual and/or lazy.

Americans have a deeply-rooted cultural belief that people are poor because they are morally defective, and it didn’t start with the Tea Party. I once traced Indiana’s welfare system back to the 15th Century English Poor Laws- laws that prohibited giving “alms” to “sturdy beggars.”

So here we are, stuck, policy-wise.

We have a longstanding (and probably insurmountable) concern about the fairness of taking money from people who have (at least theoretically) earned it in order to help people who–for whatever reason–have much less. In more selfish eras (like now) that distaste for redistribution jaundices our approach to taxes for even the most traditional civic purposes. Paying more taxes than absolutely necessary (i.e., police, fire and maybe the sewer system) is seen as state-sponsored theft, or at the very least, a deprivation of liberty.

As I previously noted, it isn’t difficult to find people arguing that efforts to narrow the gap between rich and poor (redistributive taxes) are assaults on liberty. If there is one thing Americans appear to agree upon, it is the pre-eminence of liberty over other values. What we don’t see discussed very often, however, is what we mean by liberty–and the extent to which government is responsible for ensuring that citizens can access it.

Liberty, at its most basic, is my ability to live a life of my own choosing, so long as I am not harming someone else–my right to live where I like, marry whom I love, choose or reject a church, vote for candidate A rather than B, raise my children as I see fit, opt to spend the weekend at a museum or in the garden….But there are a lot of people in my state (as elsewhere) who do not have liberty in any meaningful sense, that is, the ability to make these minimal choices, because every waking moment is spent simply trying to survive.

Every person struggling to make ends meet is not a “sturdy beggar,” trying to pull a con. (If research is to be believed, relatively few are.) But rather than trying to change this stubborn cultural meme, or reminding ourselves of the multiple ways we all benefit when societies are more equal, let’s ask a different question.

If a 10% increase in your taxes could be shown to provide public services allowing every American to enjoy at least a minimal level of liberty/self-determination–would you pay it?

Or is the liberty you cherish limited to your own? If it’s the latter–I think that’s privilege you are valuing, not liberty.

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Unintended–and Deserved–Consequences

Well, I see that “The Donald” won yesterday’s New York’s GOP primary. Handily.

If you are a Republican (or just a citizen) wondering how this posturing buffoon could have become the party’s likely Presidential nominee, a bit of recent history may be instructive.

One of the (many) things that has driven me nuts these past few years has been the single-minded obstructionism of House and Senate Republicans to anything and everything that President Obama has proposed. Good idea, bad idea–even, originally, their own idea…it hasn’t mattered. (So much for the quaint notion that we elect these bozos to work on our behalf.)

There’s a reason the GOP has been dubbed “the party of NO.”

My frustration with the childlike refusal of these political partisans to engage with the policies rather than the personalities–a refusal which has reached its apex with their defiance of their constitutional duty to “advise and consent” to a Supreme Court nomination–is probably why my reaction to this article was “serves them right.”

MEMO to Republican legislators biting your nails over the New York primary, wondering if you can finally derail Donald J. Trump’s candidacy with, gulp, Ted Cruz: You brought it on yourselves.

The article pointed to the characteristics of Trump’s supporters, the majority of whom are white men without college degrees–precisely the workers most negatively affected by changing economic realities.

Throughout his presidency, Mr. Obama has put forward constructive proposals to help those displaced workers. For its part, the Republican Congress has been behaving like Nero.

Take, for example, the administration’s 2011 proposal of a $447 billion package of measures including payroll tax cuts and the creation of an infrastructure bank that would have led to the creation of thousands of construction jobs, as well as other substantial economic benefits.

Designed to be bipartisan and fully paid for by higher taxes on rich Americans and some corporations, the American Jobs Act was nonetheless dead virtually upon its arrival on Capitol Hill.

The Jobs Act was only one of a number of initiatives designed to help precisely this population. The article lists a number of others: proposals for larger tax credits for child care; community college investments; expansion of the earned-income tax credit; changing retirement plans to be portable across employers and available to part-time workers; and tax credits for manufacturing communities.

Most recently, with truly breathtaking arrogance, Congressional Republicans refused to even consider the President’s budget.

If there had been a serious discussion of the merits or demerits of these proposals–if, following such a discussion, Republicans had rejected one or several of them, citing such analyses–that would be a very different matter. Americans might agree or disagree on policy grounds, but that’s the way the process is intended to work.

Instead, what we’ve had (and let’s not pretend otherwise) has been an unprecedented display of petulance and racism: We don’t care what that black guy in the White House wants; we don’t care if it is good or bad for our constituents; we don’t care that the level of disrespect shown our duly (and overwhelmingly) elected Commander in Chief empowers America’s enemies at home and abroad.

The truly unAmerican vendetta being waged against the President has slowed overall recovery from the recession, to be sure, but its most damaging consequences have fallen on the people who are currently supporting Donald Trump. If Trump, or Cruz, end up leading the Grand Old Party into the wilderness in November, the wounded will have no one to blame but themselves.

I think they call that Karma. Or just desserts.

For me, it’s schadenfreude.

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