Category Archives: Public Policy and Governance

How To Destroy A Government

Any lingering doubts about the good faith, patriotism or even sanity of the current Speaker of the House of Representatives can be put to rest. Mike Johnson is every bit as horrifying a culture warrior as many of us suspected. The fact that the Democrats stepped in on two occasions to save his Speakership was not evidence that they’d noticed some mitigating factors to his religious zealotry–it was, as many said at the time, an effort to keep government functioning at even its current minimal level.

Johnson has repaid that effort with a move that is unbelievably destructive–a move that is likely to destroy America’s intelligence capacity and erase any lingering trust our allies place in the United States.

I’ll let the Washington Post explain.

House Speaker Mike Johnson (R-La.) on Wednesday appointed Reps. Scott Perry (R-Pa.) and Ronny Jackson (R-Tex.), two Trump loyalists who denied the results of the 2020 election, to the House Intelligence Committee, granting them oversight of the U.S. intelligence community and sensitive government material.

Seats on the committee are highly sought after in Congress and closely watched, as members have access to some of the nation’s most classified information and are charged with overseeing the spy agencies — including the intelligence gathering within the FBI — activities for which former president Donald Trump has routinely expressed disdain.

In case you’ve missed the “backstories” on these particular cult members, the Post has thoughtfully reminded readers.

First, Perry.

Perry, a hard-line Republican who previously served as the chair of the right-wing House Freedom Caucus, played a key role in promoting false claims of election fraud and pushed the Trump White House and Justice Department to investigate baseless claims and prevent the transfer of power to President Biden. The FBI seized Perry’s cellphone records in 2022 as part of the criminal investigation into Trump’s efforts to subvert the election, and Perry sought to block what the federal investigators would be able to access on his phone. In December 2023, a federal judge ordered that Perry disclose nearly 1,700 records from his cellphone to the investigation being conducted by special counsel Jack Smith. Perry’s lawyer has said that U.S. officials never described Perry as a target of their ongoing investigation in their discussions with the congressman, and he has not been charged.

Then, Jackson.

Jackson, a retired U.S. Navy officer who joined Congress in 2021, served as the physician to Presidents Barack Obama and Trump. He was demoted in rank from retired rear admiral to captain in July 2022 following a damaging Pentagon inspector general’s report that substantiated allegations about his inappropriate behavior as a White House physician. Jackson has denied the report’s allegations and claimed they were politically motivated.

Johnson isn’t even trying to hide what he intended to accomplish by appointing extremist goofballs and devoted MAGA cult members to this extremely sensitive panel. The appointments came one day after he threatened a “three-pronged approach” to retribution for Trump’s trial loss, and outlined his plan for allowing the Republican majority to “target the Justice Department, New York and other jurisdictions for investigating Trump — using, among other things, House oversight powers.”

As one House member was quoted,

“Neither of these two gentlemen is qualified for the intelligence committee. Neither should ever be near the intelligence committee. And it’s going to make cooperation between our counterintelligence operations and the intelligence services and the Congress much more complicated.”

Former Republican congressman Adam Kinzinger, who served on the House select committee that investigated the january 6th insurrection, called the appointments “insane.”

So here we are, incredible as it may seem.

A once-respectable center-right political party–a party that used to fly under a banner of patriotism and “law and order”– is willing to compromise the security of American citizens, tell our allies we’re unreliable, and signal to our enemies that we are no longer serious about defending our place in the global order, all to demonstrate its loyalty to a convicted felon who cares nothing about America, or about anything but himself and his need for vengeance.

I shudder to think of the damage these unqualified clowns can do between now and November–and even after, if Republicans continue to hold power in either house of Congress. Continued GOP control of either the House or Senate would take us further down the road to failed nationhood.

Even assuming we avoid the unthinkable disaster that would be a second Trump administration–continued “leadership” by members of this White Christian Nationalist cult would mean we can kiss goodby to the America most of us grew up in.

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Jim Banks Is Wrong About Everything

In the run-up to Indiana’s primary election, I had the opportunity to learn a lot about far-right Congressman Jim Banks, and what I learned was pretty horrifying. Some of it was what we unfortunately have come to call “politics as usual”–financial shenanigans like the misuse of campaign funds. As I previously noted, an ethics watchdog has documented Banks’ use of a so-called “Leadership PAC” as a slush fund, allowing him to siphon funds from special interests into fancy meals, club dues and the like. (Yesterday, the Washington Post noted he has a million dollar home in Virginia, so elective office is evidently lucrative.)

More concerning are Banks’ culture war positions. Along with clowns like Jim Jordan and Marjorie Taylor Greene, Banks has doubled down on a pro-Trump, anti-woman, anti-gay, anti-liberty performative politics.

Banks has made no bones about his desire for a national ban on abortion with no exceptions, not even for rape, incest or life of the mother. He has an A+ rating from Pro-Life America, and a 100% lifetime rating from the National Right to Life Committee. His voting record on abortion/reproductive health can be accessed here.

When it comes to guns, Banks is opposed to even the most modest efforts to control the proliferation of firearms. He opposes a renewal of the ban on assault weapons, and also opposes a federal “Red Flag” law. He supports concealed carry and has voted against background checks for private sales. His voting record on gun issues can be accessed here.

Banks calls climate change a “liberal hoax,” and the Biden Administration’s environmental efforts “a war on energy.” The League of Conservation Voters gives him a 1% lifetime rating. His votes on the environment can be accessed here. 

When it comes to labor issues, Banks gets a zero rating from the AFL-CIO. When he served in the Indiana legislature, he supported “Right to work” legislation (dubbed by labor as “Right to work for less.”) On vote after vote in Congress, he has voted against labor; a list of those votes can be seen here. 

Banks is still fighting against any expansion of healthcare coverage, and rejects medical science. He voted against the most recent expansion of Medicaid and supports legislation that would ban vaccine mandates. He has voted to repeal the ACA, and against legislation that would prevent insurers from discriminating on the basis of pre-existing conditions.  A review of all of his healthcare votes is here.

Banks has voted repeatedly against efforts to fund research into the effects of marijuana. (Those anti-research votes track well with his “know nothing” approach to all issues.) Banks’ votes on issues related to pot are here.

Unsurprisingly, Banks is also an extremist on immigration. He supports finishing Trump’s wall, eliminating federal funding for sanctuary cities, and deporting “criminal illegal aliens.” He opposes legislation granting amnesty for any undocumented persons (presumably including children currently protected by DACA) and opposes any expansion of guest-worker programs.

Banks is an out and proud White Christian Nationalist. He created the “anti-Woke” caucus in the House of Representatives and introduced legislation to outlaw any remaining affirmative action in college admissions. He has been dubbed “Focus on the Family’s Man in Washington.” He opposes all DEI (Diversity, Equity and Inclusion) programs. He has been especially vocal in his opposition to gay rights generally, and to trans children especially– in addition to his “Anti-Woke Caucus,” he has supported efforts to ban trans people from the military, prevent trans women from participating in women’s sports, and prevent medical personnel from treating children for gender dysphoria. He recently sponsored a particularly odious bill that would prevent agencies charged with placing children in foster homes from taking measures to see that gay and trans children not be placed with foster parents who have religious objections to homosexuality, saying that refusal to place those children in such homes was discrimination against religion. (Discriminating against gay children is evidently fine…)

Banks consistently attacks educational institutions of all kinds. He has vowed to investigate the National Association of Independent Schools, focusing on the group’s role in political advocacy and its tax-exempt status. He has threatened to “expose” what he calls widespread political indoctrination in America’s public schools, and has claimed that lawmakers have a “moral duty” to investigate the use of academic accreditation associations as “political tools by leftist ideologues.”

When Banks was in the Indiana legislature, he voted to allow instruction in creationism and supported the educational vouchers that send tax dollars to private, overwhelmingly religious schools.

And of course, he’s described Trump’s trial as “rigged,” posting on social media that “New York is a liberal sh*t hole.”

Having a Neanderthal like Banks as a Congressman is bad enough. Electing him Senator would be worse.

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The Year Of The Woman?

Are we finally approaching that much-heralded (but thus far elusive) “year of the woman”–a year that, despite previous predictions, has yet to materialize?

Maybe. It’s happening in other countries, even those with a deeply “macho” culture–in Mexico, a woman has been elected President. In the U.S., twelve states currently have women governors.

Here in regressive, Red Indiana, the Democratic Party will run an all-women slate of statewide candidates, a first. I have previously written about my enthusiastic support for Jennifer McCormick, the former Superintendent of Public Instruction currently running for Governor. I have not previously written about Valerie McCray, who defeated Marc Carmichael, the candidate I supported for U.S. Senate, or about the contest between two other women–Destiny Wells and Beth White–who are the only candidates vying for the Attorney General nomination.

So let me get to it.

I’ve previously explained why Jennifer McCormick, who will face Trumper Mike Braun in November, would be an excellent Governor. If you visit her website, you will note that she is focused on issues that actually concern Hoosiers, unlike Braun, who–like all MAGA culture warriors–talks almost exclusively about the federal issues he did little or nothing to address in his six years as a Senator.

I recently sat down with Jennifer and her equally impressive campaign manager, and was encouraged to learn that, not only is she personally compelling and right on the issues, she is running a savvy, organized and well-thought-out campaign.

I have also had the opportunity to meet with Valerie McCray and her campaign manager, both of whom noted the extent to which Hoosiers–at least, Democratic-leaning ones– seem to be favoring women candidates this year. (Evidently, voters unfamiliar with either of the Democrats’ Senate contenders overwhelmingly opted for the female candidate.) That phenomenon failed to help Suzanne Crouch, the only woman vying for the GOP’s gubernatorial nomination–a reminder of the parties’ very different attitudes toward women.

As readers of this blog know, in the primary, I supported McCray’s opponent– an older white guy. (I firmly believe that voters should support candidates based upon their individual merits, rather than voting for an identity. I’ve known some pretty reprehensible women politicians.) That said, I was very relieved to find that McCray, whom I’d not previously known, isn’t only right on the issues  (see her excellent website), but is also energetic, informed, and thoughtful. That said, McCray’s biggest asset is actually her opponent, Jim Banks, who represents the most anti-American, anti-woman, theocratic aspects of the MAGA movement. (As I intend to explain in upcoming posts, Banks is very consistent–wrong about everything.) 

If Valerie McCray’s biggest campaign asset is Jim Banks, Todd Rokita will definitely fill that role for the eventual Democratic Attorney General nominee. I have posted about Rokita’s multiple deficits several times; he has been a consistent embarrassment to the legal profession and to the Hoosier State. He was a disgrace as a Congressman and has ignored his professional and ethical obligations as Indiana’s Attorney General, using the position (and taxpayer dollars) to feed his considerable ego while pandering to the far, far Right of the GOP. (Recently, several state senators called him “a hammer in search of a nail.”)

The specific merits of these candidates is important. Their campaigns, their performance in debates and on the stump, their fundraising–all of those traditional elements will matter, and matter a lot. But in addition to the normal horse-race factors, I come back to the question with which I began this post: will this be the year of the woman?

How angry are America’s women? How motivated? How many women who haven’t previously voted will register and cast their ballots in November? How many “good guys”–men who aren’t threatened by women’s growing equality, who care deeply about the status and health of their mothers, sisters and daughters– will signify that support by voting Blue? 

Hoping for a year of the woman is most definitely not an attack on men. It is endorsement of an equal civic partnership that benefits both men and women– and a refusal to return half the population to the subordinate status demanded by the GOP’s White Christian Nationalists.

In Indiana this November, voters will choose between a statewide slate of three talented and accomplished women and three out-and-proud MAGA misogynists and theocrats. This won’t be an election in which differences are minor. It also won’t be an election affected by gerrymandering–you can’t gerrymander a statewide race. 

Here’s an idea: If everyone reading this who cares about civic equality and women’s rights would send a few dollars to each of these women, we could demonstrate widespread support for a Hoosier year of the woman.

If Mexico can do this, so can Indiana.

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Can Government Compel Factual Speech?

One of my all-time favorite Supreme Court decisions is West Virginia Board of Education vs. Barnette. That 1943 case was brought by Jehovah’s Witness families whose children had been punished by their public school for a refusal to salute the flag–a refusal based upon their religion, which forbids such a salute as idolatry. Despite the religious basis of their refusal, the case was decided on free speech grounds, with Justice Robert Jackson penning words that would would be repeatedly quoted.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

The case established the principle that freedom of speech includes freedom from government-compelled speech. Now,  corporations opposed to disclosures mandated by agencies of government, are asserting that principle in order to avoid making required disclosures.

These companies are challenging regulations that require them to disclose emissions or inform the public of other data relevant to consumer and public health protections. They are claiming these regulations are unconstitutional–that they violate the compelled speech doctrine, which they assert protects them from government mandates forcing citizens to say something they disagree with.

Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law — and threaten everything from consumer warnings on toxic products to nutrition labels for restaurant food.

This argument is currently being used to challenge California’s emissions disclosure law, which requires companies doing business in the state to disclose how much pollution they create throughout their supply chain. Challengers argue that such laws unfairly compel them to engage in “controversial speech” — and argue that climate change is still controversial.

Right-wing groups have weaponized this “compelled speech” argument before, using it to defend organizations that refuse to give their employees adequate reproductive health care benefits and support unlicensed pregnancy centers that intentionally mislead their clients. The argument has impeded the government’s ability to investigate financial wrongdoing. Foreign kleptocrats and domestic companies have allegedly exploited this lack of transparency to launder money through real estate investments and shell companies.

Corporations are employing the argument in a wide variety of situations– from concealing the source of online political advertisements, to deterring states from addressing climate change. These efforts are being spearheaded by trade groups intent upon reducing or evading regulation, and the approach includes social media platforms.

A pending decision in the U.S. Supreme Court involving the strategy could decide the future of all social media platforms.

An advocacy group funded by Meta, Google, X (formerly Twitter), and other tech companies challenged a number of laws in Texas and Florida that would regulate how large social media companies control content posted on their sites. The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment.

An amicus brief filed by the Knight First Amendment Institute at Columbia University, an educational organization that researches and promotes freedom of speech, points out that accepting the social media platforms’ argument would make it extremely difficult, if not impossible, for governments to govern user privacy, promote competition, and ensure smooth information exchange.

If the current Supreme Court majority included Justices who shared Robert Jackson’s intellect and ethical probity, rather than corrupt ideologues like Alito and Thomas, we could anticipate issuance of a decision carefully analyzing the difference between compelling the endorsement of beliefs and opinions, and requiring the disclosure of facts –the difference between respecting the integrity of conscience and facilitating the misleading of consumers.

The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.

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Non-Profit Doesn’t Necessarily Mean “Do-Gooder”

I was intrigued to come across an essay by John Dilulio, Jr. in a publication I had previously not encountered: American Purpose. 

I have been familiar with Dilulio–a political scientist currently at the University of Pennsylvania–since his work on George W. Bush’s “Faith-Based Initiative.” (Thanks to a generous Ford Foundation grant, I helmed a three-year, three state study of that initiative.) In the 1990’s,  Dilulio was best known in criminal justice circles for his hostile analysis of young criminals and his condemnation of violent juveniles as ”superpredators,” a position from which he later–and properly–retreated.

The essay in American Purpose addressed a very different issue: the nonprofit status of American organizations, a status that entitles such organizations to various types of tax avoidance. The “nonprofit sector,” he tells us, consists of organizations

that enjoy one or more of four types of tax exemptions, subsidies, or supports: tax-free property owned by the organizations; tax-deductible donations to the organizations; taxpayer-funded grants, contracts, or fees to the organizations; and taxpayer-funded payments to individuals for purchasing goods or services from the organizations.

Intriguing indeed. But, you ask, why do we need any such “nonprofit sector?” What criteria should be used to determine which existing or new organizations receive some, all, or none of those four tax privileges? Who is supposed to benefit from their existence, and by what measures? And, last but not least, how might we mitigate the moral hazard when some of these organizations inevitably use their tax privileges for private gains or to evade public accountability, or behave in ways that are both deceptive and self-dealing?

The essay began with the good news: something like 92 percent of all nonprofits are small, community-based, and serve local needs. Fewer than 3 percent lobby for government grants or contracts.

At the top of the nonprofit pyramid, however, are less publicly beneficial organizations–and those are especially prevalent in health care.

At its very top, the tax-privileged sector is dominated by the ten nonprofit health systems that in 2021 each collected $14.5 billion or more in annual revenues, and by a dozen nonprofit universities that are among the most well-endowed universities in America. Is enough being done to ensure that these tax-privileged titans’ board members, CEOs, presidents, and other leaders are using their respective tax privileges in the public interest while refraining from individual or institutional self-dealing?

Dilulio cites a 2023 article in which Rice University economists Derek Jenkins and Vivian Ho wrote that, “Nonprofit hospitals, which currently comprise approximately 58 percent of U.S. hospitals, have been repeatedly criticized by scholars and policymakers for failing to live up to a poorly articulated standard of ‘charity care’ and benevolence,” and for failing to justify their tens of billions of dollars a year in federal, state, and local tax breaks.  He also cited a 2022 report by the Economic Research Institute, which found that, while nonprofit hospital CEOs are paid, on average, $600,000 a year, the ten highest-paid nonprofit health systems executives made $7 million a year or more;  the CEO of Kaiser Permanente was paid nearly $18 million in 2018.

Back when I was a practicing lawyer, I saw how this worked. If a corporation being formed could credibly point to some charitable purpose, and could successfully argue for nonprofit status, monetary gains that would otherwise constitute–and be taxed as– profit could be diverted/mischaracterized as “overhead costs.” These “nonprofits” could divert what would otherwise be profit into generous salaries and lots of perks for management. (Does a health organization executive really need a luxury car supplied by the nonprofit entity? What about that corporate jet?)

The essay has much more information, and offers suggestions for legislative interventions. If you are interested in the various ways in which nonprofit status can be–and has been– gamed, it’s well worth the time to click through and read in its entirety.

My own first reaction was that this situation–the culture of “game-playing” that has allowed greed to infect and distort significant elements of a system originally intended to serve the public good–has become widespread. It isn’t limited to health care and a handful of elite universities.

Assuming we emerge from the November election with American democracy still largely intact, we need to address a multitude of structural distortions, and not just those affecting the electoral system. The misuse of nonprofit status is one of them.

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