Public Policy and Governance – Page 43

Worse Than Trump

Ron Desantis (Taliban: Florida) has announced his campaign for President in a widely-mocked, glitch-filled Twitter appearance, so it may be time to re-read a February New Republic essay “A DeSantis Presidency Could Be Even Worse Than Trump.”

The sub-head is brutal: “Donald Trump was and is a lazy, ignorant narcissist. The Florida governor is a smart, motivated, very right-wing Catholic who wants to remake America as he imagines God wants it to be.”

The article preceded DeSantis’ precipitous plunge in the polls, and takes seriously the possibility of DeSantis capturing the GOP nomination. Back in February, before the general public became more familiar with DeSantis’ agenda (autocratic) and personality (wooden/off-putting/missing), the Florida Governor was viewed as relatively sane and intelligent, at least compared to Trump, and many in the public assumed that meant DeSantis would be a better president than Trump.

The following paragraphs from the essay reminded me of a gloomy conversation I had with a friend the weekend after the 2016 election. Her most hopeful prediction–which turned out to be very accurate–was that Trump’s manifest incompetence would prevent him from actually enacting much of the damage he was promising.

DeSantis differs from Trump in several ways. While Trump couldn’t care less about “critical race theory” or transgender people, and simply throws stuff into speeches at his rallies that get the biggest reaction, DeSantis is a deeply conservative Catholic and a true believer in the culture wars he engages in. The other key difference is that DeSantis is a Harvard- and Yale-educated lawyer, while Trump skated through a bachelor’s in business where one of his professors called him “the dumbest goddamn student I ever had.”

The damage Trump was able to do was limited by his lack of discipline, ignorance of how the system worked, laziness, and lack of motivation. He is simply a narcissist who likes feeling rich, powerful, and important. DeSantis, however, is none of these things. He is not lazy. He has discipline, motivation, and an intimate knowledge of how to use the system to get what he wants. DeSantis fully intends to remake America the way he believes God would want it to be, and his knowledge of law and governmental structure allows him to do it on a scale, and with a precision, that Trump could only dream about.

The essay noted that DeSantis was pursuing what it called “one of the most aggressively authoritarian agendas in the country” by using two primary strategies: “capturing the referees and strategic ambiguity.”

DeSantis quietly packed both the Florida Board of Medicine and the New College Board of Trustees with ideological fellow travelers to bend institutions to their will. The Board of Medicine now includes campaign donors, Catholics who substitute the Vatican’s positions for that of professional medical organizations, and proponents of conversion therapy, while the surgeon general of Florida is an anti-vaxxer.

The strategy is to move the decision-making process out of the public spotlight by giving important decision-making authority to people who can’t be held accountable at the ballot box. (Diane Ravich recently noted that DeSantis had gutted Florida’s open records law–another ploy to keep that “capture of the referees” hidden from public view.)

And that “strategic ambiguity”?

DeSantis has made persistent war on “woke” education–from public schools to state universities.

The DeSantis administration swore up and down that the “Florida Parental Rights in Education Act” (the “Don’t Say Gay” law) was simply there to protect vulnerable young children from being exposed to dangerous or obscene ideas, images, or writing. In reality, it was deliberately vague and overly broad. When schoolteachers and librarians reached out for guidance on what is allowed, they were met with silence by the DeSantis administration. This left them with the choice: Do we remove everything from school libraries, or do we risk the potential legal consequences of annoying his administration?

Back when we had a legitimate Supreme Court, employment of this tactic was repeatedly struck down for creating a “chilling effect,” that violated the First Amendment.

The article lists a truly terrifying number of ways a DeSantis administration could use these strategies in support of a radically Rightwing culture war agenda. I would encourage you to click through and read it all if I thought this little martinet had a realistic chance to be President, or even the Republican nominee. But since February, when this essay was published, Americans have learned a lot about Mr. DeSantis.

Current polling reflects the public’s response to DeSantis’ repetitive attacks on “wokeness” and the strategic stupidity of picking a stubborn, petty fight with Disney (Florida’s largest employer and largest tourism draw), among other unforced errors.

And really, no one wants to have a beer with this guy.

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A Primal Scream

Notice: I was interviewed for a podcast (“What the Gerrymander”) that will drop at midnight tonight. You can find it here, if interested: https://podcasts.apple.com/us/podcast/what-the-gerrymander/id1668429440

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Wanda Sykes has the ability to be both funny and a dead-on critic of social insanity. A recent quip making the rounds on social media will illustrate: “Until a drag queen walks into a school and beats eight kids to death with a copy of ‘To Kill a Mockingbird,’ I think you’re focusing on the wrong shit.”

The quote perfectly encapsulates what frustrates and angers the vast majority of Americans– people posturing as “pro life” and insisting that their censorship and homophobia are intended to “protect children,” while adamantly opposing rational gun regulation.

The priorities of the Right don’t just seem incompatible to most of us, they increasingly seem incomprehensible. But a book I recently read, suggested by a commenter to this blog, gave me a better understanding of the context of today’s culture wars and those who fight them. It was Stephen Prothero’s Why Liberals Win the Culture Wars (Even When They Lose Elections).

Prothero filled in some details of U.S. history that I’d previously missed. For example, I knew that Thomas Jefferson was criticized for his departures from orthodox Christianity, but I had not previously understood how incredibly widespread and vicious that criticism was. As a member of a marginalized minority, I was aware that American Catholics had also been subjected to significant discrimination–but I had no idea of the extent and duration of America’s anti-Catholicism. A colleague who studied Mormon history had clued me in about anti-Mormonism, but–again–I had been unaware of the extent of the cultural animus focused on Mormons.

These and other revelations really did provide a context–and predicted outcome– for our current cultural battles.

As Prothero points out, it is almost fore-ordained that the “liberal” side (the forces militating for inclusion and acceptance–i.e., the “woke” side) will win such conflicts. That’s because these “wars” only begin when the people waging them realize they are already close to losing–that the social environment is already significantly changed from the certainties with which they are comfortable, and within which they are privileged.

For some number of Americans, that loss is terrifying and unsupportable.

In analyzing partisan jockeying for the upcoming election, Jennifer Rubin identified positions being taken by the GOP–on abortion, guns, and LGBTQ+– issues that clearly repel a majority of Americans, and explained that “Voters enthralled with turning politics into primal scream therapy don’t much care about a viable agenda or electability.”

Bingo!

Together, Rubin and Prothero explained what I previously found incomprehensible. For those of us who expect rational behavior by partisans engaged in an electoral contest, the recent trajectory of the Republican party has been mystifying. After all, it isn’t that Republican strategists don’t know that abortion bans, for instance, are costing them elections; as a recent Roll Call article reported.

The generic ballot has shifted toward Democrats, with Republicans losing ground among independents on the abortion issue, according to a new polling memo from a GOP firm that fell into Democratic hands.

“There has been a 6 point swing in the last year on the Generic Senate ballot from R+3 to D+3. This movement is [led] overwhelmingly by Independent and NEW voters that identify abortion as one of their top issues,” according to a “National Issue Study” by co/efficient, which was in the news recently as one of the pollsters for Kentucky Republican gubernatorial nominee Daniel Cameron.

The poll, conducted April 20-24, had similar findings on the House side. “There has been a 10 point swing in the last year on the Generic House Ballot from R+6 to D+4. This movement is [led] overwhelmingly by Independent and NEW voters that identify abortion as one of their top issues,” it said on slide seven. “Reproductive Freedom is the #1 issue among those that DID NOT vote in 2020.”

Other polling has confirmed the negative response of voters to efforts to demonize drag queens, attack trans youth, censor books and turn librarians into felons. These are not rational policy positions for a political party aiming to win elections. Given sufficiently large turnout by opposition voters, not even extreme gerrymandering and the Electoral College can save GOP control.

Prothero’s book, Sykes’ quip, and Rubin’s observation all point to the same conclusion. As Prothero put it, America’s intermittent culture wars only begin when the warriors realize they are on the cusp of losing.

What we are experiencing right now is their “primal scream.”

“Woke” folks will win the culture. The danger, however, is the considerable harm that will be done in the meantime in places like Indiana where Republicans pandering to the screamers remain in power.

Absent massive turnout by Democrats, independents and new voters, rational Americans can still lose the vote.

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Democracy And Dirty Tricks

When Democrats gripe that American government is no longer small-d democratic, they have a point. Not only has extreme gerrymandering given more power to rural voters than to those who reside in cities, but the allocation of two Senate seats to each state, regardless of population, has grossly distorted the ideal of “one person, one vote.” The last time the GOP won the Senate, it was with twenty million fewer votes than had been cast for the Democratic “minority.”

Democratic Senators currently represent some forty million more voters than Republican Senators, despite an almost-even split in the upper house. Thanks to predicted demographic shifts, it’s poised to get even worse: one scholar estimates that by 2040, 70% of Americans will live in the fifteen largest states, and will be represented by thirty Senators, while the remaining 30% will have 70 Senators voting on their behalf.

If these structural advantages weren’t enough, the deep pocket donors who support the GOP continue to fund political dirty tricks. I’ve been reading a number of reports about the latest effort to re-elect Donald Trump: a phony “third party” called No Labels.

As Robert Hubbell recently wrote,

The “No Labels” organization is a GOP dark-money PAC designed to elect Donald Trump by running a doomed third-party candidate to draw votes away from Joe Biden in 2024.

Hubbell quotes the Intercept for a story suggesting that No Labels intends to run Manchin; whether that is accurate or not, what we do know is that No Labels is not a real political party. It is funded by the Koch brothers, Harlan Crow, and Peter Theil (among others).

Worse, “No Labels” is operating as a 501(c)(4) charitable organization so that it does not have to disclose its donors like every other political party—even though No Labels is registering as a political party across the nation for the 2024 election.

Arizona Democrats, among others, are challenging the organization’s misrepresentation of itself as a third party, alleging that, as a 501(c)(4) organization — which legally cannot primarily be engaged in political activity — it cannot comply with federal election regulations governing political parties, including disclosure of contributors.

“No Labels is not following the rules for political party recognition, while attempting to be placed on the ballot alongside actual, functioning political parties who do,” a spokesperson for the Arizona Democratic Party said in March.

Hubbell quite properly characterizes articles suggesting that No Labels is a new, “centrist” political party as “journalistic malpractice.”

As anyone who has followed election politics even casually knows, thanks to America’s political structures, third party candidates are always spoilers. That’s true even when the third party is a legitimate party and the candidate honorable and sincere. The presence of such ballot options simply takes votes from one of the major party candidates. (Most consequential example: No Ralph Nader on the ticket, no George W. Bush in the White House.)

In this case, there is ample evidence that the effort to mount a bogus “third-party” option is anything but honest and sincere. There is also absolutely no doubt who they hope that bogus entrant will benefit–any doubt about the motives should be dispelled by the identity of the funders.

Harlan Crow already owns a Supreme Court Justice; now he and the surviving Koch brother and Peter Theil and their ilk want to ensure the election of Trump, an intellectually vacuous and mentally-ill narcissist they can easily manipulate.

I worry that this particular “dirty trick” may not receive the publicity it deserves–the media and the voters who pay attention are constantly distracted by the equally dangerous antics of the MAGA nutcases and Neo-Nazis currently impeding rational governance and fiscal meltdown in Congress–and relatively few voters pay attention.

It is absolutely true that both parties have engaged in political trickery–mostly at the local level–just as both parties have gerrymandered when in a position to do so. In the last couple of decades, however, it is the GOP that has benefitted–thanks in large part to the huge amounts of money these millionaires and billionaires have been willing to spend in order to foreclose the twin threats of increased regulation and increased taxation.

If the Democrats ever secure a real, working majority in Congress, they need to address the structures that are most anti-democratic–at least, the ones that are amenable to changes in rules (the filibuster) and statutory repair (gerrymandering, vote suppression). They can also address the corruption at the Supreme Court. There is nothing lawmakers can realistically do about distorted Senate representation, and the National Popular Vote Interstate Compact would have to be passed by several Red States, which makes that effort to neuter the Electoral College unlikely.

But nothing good will happen without massive turnout that ignores third party candidates–real or fictitious.

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Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court.

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.” “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.”

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures.

Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……

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Who Decides?

I used to tell my students that the Bill of Rights, read as an organic whole, answers a deceptively simple question: who decides? Not “what decision should be made” but who gets to make it? Who chooses the book you read, the God you do–or do not–worship, the person you marry?

The Bill of Rights draws a line between decisions government can properly make and decisions that, in a free society, must be left to the individual. One of the reasons the Dobbs decision was so shocking was that –suddenly–the government was authorized to enter a zone of intimacy from which it had long been banned; as I have often remarked, the question was never “should abortion be legal or illegal”? The question was (and is) who should decide that question in an individual situation?

America’s raging culture war tends to focus on the extent to which our individual rights are protected from government interference. MAGA Republicans insist that government has the right–the duty!–to determine everything from your reading materials to your reproductive decisions. As many former Republicans have noted, the “war on woke” is really a war on the Bill of Rights, and a sharp departure from what used to be GOP orthodoxy.

This deviation from that past Republican orthodoxy isn’t limited to the usurpation of individual life decisions. The party has also jettisoned its former support for free markets, as Dana Milbank recently documented.

Can you remember when Republicans still believed in the free market?
It was sometime before Donald Trump started routine attacks on the “globalists” of Goldman Sachs and the leaders of large U.S. corporations; before Florida Gov. Ron DeSantis used tax policy to attack the Walt Disney Co. because it dared to disagree with his “don’t say gay” legislation; before congressional Republicans harassed social media companies and book publishers over alleged “censorship” of their views; before they threatened Delta Air Lines, United Airlines and Major League Baseball over their support for voting rights; before they vowed to use federal resources to retaliate against the U.S. Chamber of Commerce for backing a few Democrats; before Republican governors enacted laws overriding private employers’ coronavirus vaccination policies; and before GOP-led states moved to disrupt interstate commerce to block abortion access and morning-after pills.

This week brought the latest evidence that the former party of laissez-faire capitalism has reimagined itself in the image of a Soviet State Planning Committee. Republican lawmakers are now telling investors which businesses they can and can’t invest in — and which investment criteria they will be permitted to consider.

Republicans have taken the culture war to business, in efforts to prevent asset managers from considering “environmental, social and governance” criteria, or ESG, when making their investments. Milbank quoted Utah Attorney General Sean Reyes’ assertion that there is a “conspiracy” of ESG-minded investors.

He was particularly worried that “asset managers who collectively own significant percentages of utilities’ stock are improperly influencing the operations of those utilities.”

Imagine that! The shareholders who own a company are trying to influence its operations! Will nobody rid us of this capitalist menace?

Twenty-five Red State attorneys general have sued to block a federal regulation that allows retirement-plan investors to consider ESG standards. The rule doesn’t mandate that investors do so. It merely gives them the option.

As one Democratic critic of this interference with business decisions points out, these rules block asset managers from

considering whether a car company “is aligned with market expectations and preparing for the shift to electric vehicles,” whether a pharmaceutical company “has exposure to massive lawsuits because of its role in the opioid epidemic” or whether “health-care companies understaff their operations and jeopardize the safety of patients.. ..ESG is simply additional information that investment professionals use to assess risk and return prospects.”

In our current “through the looking-glass” world, Democrats are defending the free market against Republican support for a planned economy that mandates what businesses have to invest in. Shades of Soviet central planning!

When I first became politically active, I was drawn to principles espoused by the then-Republican Party, especially its recognition that individual liberty requires limiting the power of the state. There were and are good faith arguments about where the line should be drawn in a variety of situations (and widespread misunderstandings of what “limited” government means. “Limited” is not the equivalent of “small”–a limited government respects limits on its authority, not its size.)

A government that can dictate your prayers, your reading materials, your reproductive decisions and your business’s approach to investment isn’t just unAmerican–it’s heading toward Soviet-style totalitarianism or Taliban-style theocracy.

In a genuinely free society, the decisions citizens and businesses make are far less important than who has the right to make them.

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