Public Policy and Governance – Page 27

A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

“Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump. Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

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The Stakes

Bret Stephens is a regular opinion writer for the New York Times. He is a self-described conservative who shares a Monday column with liberal Gail Collins. Stephens is a “never Trumper”–and very clear-eyed about the threat posed not just by Trump, but by the current GOP, and he has a wicked way with words. A few days ago, when Collins asked him what the remaining sane Republicans would do about the immigration bill, his response was dead-on perfect:

So-called sane House Republicans are basically passengers in a car being driven at high speed by a drunk. There’s no getting out of the car. And they don’t dare tell the driver to slow down because who knows what he’ll do then.

As Hoosiers are being inundated with advertisements from the candidates vying for the GOP nomination for Governor, the accuracy of Stephens’ description is evident.

On the one hand, we have the MAGAs. Mike Braun is promising to fix problems that are matters of federal jurisdiction (why not stay in the Senate, Mike, if those are your issues?) and repeatedly reminding voters that he is Trump’s choice. Creepy Eric Doden is quoting the bible, promising to “protect life” and “always back the Blue.” And we have Brad Chambers– the least scary of the lot (which isn’t saying much)–trying to avoid climbing into the drunk driver’s speeding car by focusing on job creation and his “outsider” claims.

I’ve missed ads from Lt. Governor Susanne Crouch and disgraced former Attorney General Curtis Hill–I assume we’ve been (mercifully) spared those due to the lack of zillionaire status that allows the others to spend lots of their own and their families’ money.

All of them support Indiana’s abortion ban. And that raises a question: how much weight will Hoosier voters place on the abortion issue when it is one issue among others on the candidates’ agendas?

Every state that has voted on the issue of reproductive rights in a stand-alone vote has upheld those rights, even deep-red states. Pundits argue, however, that voters will be less likely to vote against candidates whose anti-choice positions are only one position among many. When the issue is separated from a campaign for public office, presumably, it is simpler for voters to understand what’s at stake and to register an “up or down” preference.

That belief may have been what has convinced pro-Trump groups to formulate an “Anti-Abortion Plan for Day One.”

In emerging plans that involve everything from the EPA to the Federal Trade Commission to the Postal Service, nearly 100 anti-abortion and conservative groups are mapping out ways the next president can use the sprawling federal bureaucracy to curb abortion access.

Many of the policies they advocate are ones Trump implemented in his first term and President Joe Biden rescinded — rules that would have a far greater impact in a post-Roe landscape. Other items on the wish list are new, ranging from efforts to undo state and federal programs promoting access to abortion to a de facto national ban. But all have one thing in common: They don’t require congressional approval.

“The conversations we’re having with the presidential candidates and their campaigns have been very clear: We expect them to act swiftly,” Kristan Hawkins, the president of Students for Life, told POLITICO. “Due to not having 60 votes in the Senate and not having a firm pro-life majority in the House, I think administrative action is where we’re going to see the most action after 2024 if President Trump or another pro-life president is elected.”

The Heritage Foundation’s 2025 Presidential Transition Project — a coalition that includes Students for Life, Susan B. Anthony Pro-Life America and other anti-abortion organizations — is drafting executive orders to roll back Biden-era policies that have expanded abortion access, such as making abortions available in some circumstances at VA hospitals. They are also collecting resumes from conservative activists interested in becoming political appointees or career civil servants and training them to use overlooked levers of agency power to curb abortion access.

The linked article details the plans, and makes it very clear that the the right of a woman to choose to terminate a pregnancy will be at the very center of the 2024 federal election. It will also be at the center of Indiana’s election for U.S. Senate–a contest that will likely pit “anti-woke” culture warrior Jim Banks, who supports a national ban with zero exemptions, against Marc Carmichael, who wants to codify Roe v. Wade.

In November’s election, we’ll see whether voters understand that they are choosing between “forced birth” candidates and those who will protect women’s health and equality.

I’m pretty sure they will.

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I Guess My Prediction Was Just Premature

One of my biggest faults (as my husband, children and multiple others will confirm) is impatience. It manifests pretty much everywhere–reading a mystery, I want to skim over the clues and get to the part where it’s solved; watching a rom-com, I am anxious for the concluding kiss … I can share all kinds of other examples.

Which brings me to my frustration with the slow-motion disintegration of the Republican Party.

I’ve been predicting the demise of the GOP for at least the last twenty years. Back in “the day”–before the party morphed into a White Christian Nationalist cult–I focused on the growing rift between what we then called “country club Republicans” and the culture warriors that were fringe then, but who now control the party. The country club contingent was composed primarily of business people who were focused on economic policy and tended to see the fringe folks as useful worker bees with a nutty agenda that could safely be ignored once the election was won.

The divorce between those two incompatible factions has taken a lot longer than I once predicted, but today’s MAGA reality has accelerated it.

A couple of years ago, a Washington Post column focused on the widening gulf between corporate America and today’s GOP. The columnist began by pointing to those ubiquitous television ads with their “stream of multicultural and often mixed-raced families buying cars, taking vacations, planning their retirements, doing laundry and laughing at the dinner table.”

You don’t watch television? Just pay attention to the pop-up ads when you surf the Web. See the smiling faces — the sea of Black, Brown, tan and golden faces — that make it clear that corporate America knows that scenes of White families are no longer the only aspirational groupings that make customers want to open their wallets.

The column described the diverging goals of the GOP and corporate America as “two very interesting but very different branding exercises.” It then addressed the increasingly uneasy partnership between the two branches of the party.

For years, these two campaigns allowed both sides to maintain their mutually beneficial arrangement. In recent days, however, the two branding campaigns have collided over the most basic question in our democracy: Who gets to vote and how? Which brand will emerge from this collision in better shape is already a foregone conclusion. But the reason may have less to do with right and wrong than profit and loss.

Under the old arrangement, corporate America would reliably deliver huge sums of money to GOP campaigns and causes, and Republicans would deliver lower taxes on income and capital gains in return. If big companies did not endorse everything the party stood for, they remained mostly silent in service of their bottom line.

As we know, the GOP has morphed into a White, largely evangelical and largely non-urban cult hostile to immigration, science, foreign engagement and Black people. Meanwhile, much of corporate America has evolved in a very different direction. Business sees its interests and bottom lines enhanced by immigration and dependent upon science. Foreign markets give companies a stake in global affairs, and as America’s demography has diversified, so have their target markets.So that increasing gap between business and today’s version of the GOP has continued to grow.

The finally accelerating divide between business and the GOP is not the only sign that the party is disintegrating. Intra-party divisions became significantly more pronounced after Trump’s election.

We are seeing more primary battles between the MAGA Republicans aligned with Trump and the few remaining, more traditional incumbents. Those challenges have not only weakened party cohesion, but have frequently resulted in the nomination of candidates who are considerably less electable in general elections.

During the Trump years, the GOP has gone from differences on policy issues to the abandonment of policy (not to mention the constitution) altogether, making it abundantly clear that GOP candidates are running solely to exercise power, not to govern–to “be someone” rather than “do something.” Internal fights are no longer about policy, but about devotion to Trump and the autocratic MAGA movement; those fights have led to situations in which state and local Republican parties have censured or even expelled members who have deviated from MAGA obsessions.

The disintegration of a once-respectable political party is finally speeding up, but political inertia is still providing drag. Meanwhile, the damage being done to America is enormous. Today’s Republicans have demonstrated that they cannot govern, but they can–and have–brought governance to a halt, delaying and/or killing critical legislation.

The only thing that will accelerate the death of the GOP and the creation of a substitute center-right party is a massive loss in November.

I’m impatiently waiting…

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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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