Public Policy and Governance – Page 44

And The Hits Keep Coming…

What happens when government–the primary mechanism through which humans engage in collective action– is no longer perceived as legitimate?

Two headlines from last Wednesday’s Guardian suggest that we may soon be able to answer that question.

First, the Supreme Court. It’s Clarence Thomas–again.

Several lawyers who have had business before the supreme court, including one who successfully argued to end race-conscious admissions at universities, paid money to a top aide to Justice Clarence Thomas, according to the aide’s Venmo transactions. The payments appear to have been made in connection to Thomas’s 2019 Christmas party.

The payments to Rajan Vasisht, who served as Thomas’s aide from July 2019 to July 2021, seem to underscore the close ties between Thomas, who is embroiled in ethics scandals following a series of revelations about his relationship with a wealthy billionaire donor, and certain senior Washington lawyers who argue cases and have other business in front of the justice.

Despite the fact that the payments all referenced Thomas’ Christmas party, the article says it remains unclear what the funds were actually for. Most of the former clerks who made the payments are currently lawyers working for large and prominent law firms–firms with substantial business before the Court. None of them responded to the Guardian’s requests for clarification.

Richard Painter, who served as the chief White House ethics lawyer in the George W Bush administration and has been a vocal critic of the role of dark money in politics, said is was “not appropriate” for former Thomas law clerks who were established in private practice to – in effect – send money to the supreme court via Venmo.

“There is no excuse for it. Thomas could invite them to his Christmas party and he could attend Christmas parties, as long as they are not discussing any cases. His Christmas party should not be paid for by lawyers,” Painter said. “A federal government employee collecting money from lawyers for any reason.”

Gee, it must be nice to be a Supreme Court Justice. As a steady stream of reports has confirmed, if you are a Justice like Clarence Thomas, you don’t have to pay for anything–your mother’s home, fancy trips, memberships in exclusive clubs, your nephew’s tuition, your wedding reception…evidently, not even your Christmas Parties.

The steady drip, drip, drip of disclosures–especially those about Thomas and Alito– have deeply damaged the legitimacy of the highest Court in the land. But it isn’t only the Court.

Across the way, Congressional Republicans are doing their best to de-legitimize that branch of government.

The headline and sub-head tell the tale: “Former House Republicans and DoJ veterans lambast efforts to curb FBI and justice department”.”Current GOP members ‘disconnected from reality’ while working toward weakening democracy and the justice system.”

As House Republicans with close ties to Donald Trump widen investigations into alleged bias at the Department of Justice and the FBI – while also mulling impeachments of top Biden administration officials – justice department veterans and ex-GOP members are voicing concern that these efforts weaken the justice system and democracy.

Led by the judiciary committee chairman, Jim Jordan, the far-right House Freedom Caucus members have helped spearhead inquiries into the alleged “weaponization of the federal government” with significant backing from the House speaker, Kevin McCarthy, and other GOP leaders.

Freedom Caucus members have issued wild and irresponsible threats to impeach pretty much everyone connected with the justice system, starting with Merrick Garland; they’ve threatened budget cuts and/or the freezing of some officials’ salaries to penalize perceived biases against Trump, even though such moves would seem to undercut traditional GOP “law and order” rhetoric and policies.

That was “traditional” rhetoric at a time the GOP was a political party rather than a lunatic cult. Several former Republican Representatives clearly understand the devolution.

“Jordan is not only accepting Trump’s falsehoods but actively promoting them. It’s an alternative reality. Members are doing it for re-election purposes, fundraising and power,” said the former Michigan Republican representative Dave Trott.

Trott added that he thought “what the Trump crazies have promoted is undermining our democracy and confidence in our judicial system and justice department. Now they want to defund justice and the FBI because they know it will further energize the far-right base.”…

Looking ahead, House GOP alumni warn that the Republican investigations may appeal to Trump and his base, but alienate moderate voters.

“I’m sure Trump is thrilled by it all,” the former Republican Pennsylvania representative Charlie Dent said. “I bet he’s talking to his allies regularly. Trump is looking at this from his sense of personal grievance.”

Corruption on the Court. Keystone Kops running the House of Representatives. A political party turned into a grievance cult by a dangerously mentally-ill ex-President.

We’re in a world of hurt.

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In Case You Were Wondering…

In case you were wondering whether women will save America, as Morton Marcus and I argued in our recent book, or whether the GOP has radicalized a sufficient number of female voters to prevent a Blue Wave and block necessary reforms…

A few days ago, I wrote about the misnamed “Moms for Liberty,” and noted that the activism of rightwing women isn’t a new phenomenon. And that’s true–a “quick and dirty” list of reactionary women’s organizations would include at least the following:

The Daughters of the American Revolution (DAR), which has historically attracted conservative-leaning women and supported right-wing values.
The National Federation of Republican Women (NFRW), which serves as a grassroots network supporting Republican Party candidates and their increasingly radical policies.
Concerned Women for America (CWA) is a (truly scary) conservative Christian women’s organization supporting a fundamentalist list of “traditional family values”– it opposes abortion, same-sex marriage, and LGBTQ rights, among other positions.
Turning Point USA (TPUSA) isn’t an exclusively female organization, but it has a significant female following. It focuses its efforts on those “liberal” college campuses.

And of course, we now have “Moms for Liberty.”

On the other hand, there is an unmistakable and growing gender gap in American electoral politics: the Pew Research Center’s analysis of nationally validated voter data reported that, in 2020, 57% of women supported Biden, while 42% supported Trump. (I personally find it difficult to understand why any sentient American would support TFG, let alone 42% of women, but facts are facts….)

When it comes to policymakers, the differences between male and female legislators are pretty stark. On the one-year anniversary of the Dobbs decision, the Guardian ran an article–with pictures!–of all state-level legislators who had voted to ban or dramatically restrict abortion, and as the headline pointed out, they were “mostly men.”

To be precise, there were 1292 Republican men, 214 Republican women, 53 Democratic men, 11 Democratic women, and 2 independents.

Those numbers do reflect a considerable gender gap, but one that–I would argue–doesn’t reflect some inherent aspect of gender identity so much as individual experience. If American males had lived under a government that controlled what they could do with their bodies, while allowing women to control theirs, the gap would probably be reversed.

As I have repeatedly argued, Americans aren’t arguing about whether or not an individual woman should be able to abort a fetus. The issue is far more fundamental: What should be the limits of government authority over individual citizens?

“Moms for Liberty” is such a ridiculous title because giving government at any level–school boards or state legislatures or federal agencies–the authority to tell parents what their children can read or learn is the antithesis of liberty.

Giving government the power to force women to give birth, handing over to government the power to overrule the medical judgments of doctors and the considered decisions of parents, allowing government to overrule businesses’ decisions about diversity and inclusion–handing such broad authority to government is the opposite of liberty.

Our government was founded on the libertarian principle that people should be free to make their own decisions about their lives–their goals, their beliefs, their telos–so long as the individual is not harming the person or property of someone else, and so long as they are respecting the equal rights of others.

We can certainly argue about the nature of the harms that justify government interference, but that principle precludes defining “religious liberty” as the privileging of (selected) Christian beliefs. It precludes imposing the policy preferences of legislators on businesses that are otherwise behaving lawfully. It precludes empowering some parents to dictate to others what their children may read or what medical interventions are appropriate. It absolutely precludes forcing women to give birth.

Actual liberty demands a lot of people–first and foremost, the ability to live in a society where people who don’t always agree with you have the same right to personal autonomy that you do.

Women and men who understand the fundamental nature of the MAGA assault on liberty will vote Blue in 2024.

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It’s Worse When They Know Better

I tend to attribute a significant percentage of America’s governance problems to either stupidity or ignorance. Those aren’t the same thing; ignorance is simply a lack of knowledge, and it can be remedied by providing individuals with the relevant information. Stupidity, on the other hand, is an inability to understand or learn–lack of intellectual capacity.

When we view the antics of the loony-tune members of the misnamed “Freedom Caucus,” we are mostly looking at people who either lack intellectual capacity or who are too emotionally disabled to grasp complexity, nuance or the difference between fact and fiction. Or both. (Which raises significant questions about the people who voted for them, but that’s a separate issue….)

Policymakers who simply don’t “get it” can do a lot of harm, but generally, that isn’t their intent. They just don’t know what they don’t know.

The people who make my skin crawl, however, are those like Ted Cruz and Josh Hawley, elected officials who dishonestly pander to the MAGA cult despite clearly knowing better.

Hawley recently raised eyebrows with a phony Patrick Henry quote.It was actually a quote from 1950’s white supremacist paper that Hawley attributed—surely knowingly—to Patrick Henry.

When people responded by pointing out the falsity of the attribution, Hawley tweeted that he’d “owned the libs” and appended a quote supportive of Christian Nationalism, this time attributed to a speech by John Quincy Adams, “The Declaration of Independence first organized the social compact on the foundation of the Redeemer’s mission on earth.”

Now, Hawley attended Stanford as an undergraduate. He went to Yale Law School, where he was on the law review. It is highly unlikely that he is unaware of the wide variety of religious beliefs held by the nation’s founders. As the linked article notes, they ranged from guys like

Patrick Henry, who went around handing out Bible tracts and whose theology seems to have been something that would still be recognized as “evangelical Christian” today. There were guys like George Washington, who belonged to the Anglican Church but attended services at a variety of churches and was deliberately vague about endorsing any particular form of religious belief. There were a large number—including Thomas Jefferson, Benjamin Franklin, James Madison, Ethan Allen, and James Monroe—who styled themselves as Deist. To get a couple of Founding Mothers into the mix, Abigail Adams and Dolly Madison were also Deists….

The truth is that a diligent search by anyone seeking to find a founder who agrees with their own view can almost certainly find it, because those guys had a lot of very different views on religion. That includes Franklin, who just didn’t seem to think about it much, and who when religious friends told him he should study up and get himself “saved” near the end of his life, informed them that he didn’t think it was worth the bother as he would know the truth soon enough.

Just about the only thing this diverse group really agreed on when it came to religion was that they wanted to keep it out of their government. Their own experience with state religions of all types showed that religion was harmful to the state, and the state was harmful to religion.

While the linked article does a good–and factually correct–job of correcting the record, what it doesn’t do is speculate about the motives for Hawley’s particular form of dishonesty. Those motives confound me.

It is one thing for an intelligent man to be conservative (although in all fairness, today’s right-wingers are radicals, not conservatives). It’s another thing entirely to knowingly and intentionally lie–and worse, to choose a lie that is blatantly obvious and easily challenged–in the service of Christian Nationalism.

An article in Vanity Fair pointed out that Hawley–who also fancies himself an expert on “masculinity”– helped spread Trump’s election lies. In fact, Hawley’s lies have kept Politifact busy. But being routinely called out on those lies hasn’t deterred him.

One study of habitual liars found that the more a person lies, the easier it becomes for them to prevaricate, which in turn makes them more likely to lie. Clearly, Hawley–and Cruz and others like them–believe that pandering to a MAGA base composed primarily of people who lack the knowledge to recognize the falsehoods will serve them politically.

People who know better probably aren’t their voters anyway.

If this behavior is, as it appears, the result of cold calculation, it’s chilling. Unlike the Congressional dingbats, politicians like Hawley and Cruz are by definition very bad people, and the evil they do is anything but inadvertent.

Evidently, power really is an aphrodisiac.

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Who Should Vote?

I have an old, ratty t-shirt that says “Corporations are not people.” It dates back to the (in)famous exchange between a heckler and Mitt Romney, in which Romney–then the Republican candidate for President–proclaimed that “Corporations are people, my friend.” Needless to say, that declaration didn’t win him many votes. After all, corporations don’t vote.

At least, not in most places. Yet.

A reader of this blog recently sent me a CBS News article about a Delaware town planning to extend the franchise to “corporate citizens.”

Seaford, a town of about 8,000 on the Nanticoke River, amended its charter in April to allow businesses — including LLCs, corporations, trusts or partnerships — the right to vote in local elections. The law would go into effect once both houses of Delaware’s state legislature approve it.

The proposal has rekindled a debate over how much power corporations should have in local government, with fierce opposition from civic interest groups who say businesses already wield too much influence over politics.

“It was very shocking to see this attempt to have artificial entities have voting rights,” said Claire Snyder-Hall, executive director of Common Cause Delaware, a watchdog group.

Delaware is probably the most “corporate-friendly” state in the U.S., with business laws so favorable to the corporate form that the state boasts more than 1.8 million entities registered there. According to the linked article, companies outnumber human residents by nearly two-to-one.

This effort would seem to be the flip side of the widespread efforts to suppress the votes of human citizens. Whatever the merits of the proposal (admittedly, I’m at a loss to identify those), allowing artificial persons to cast ballots would dilute the votes of actual people. I assume that’s the goal–giving the ballot to corporations would certainly tilt the playing field further in the direction of the communities’ business interests.

In all fairness, when human voters fail to show up at the polls, they bear considerable responsibility for their subsequent loss of voice. What’s that phrase? Use it or lose it…

Legislators have cast the change as a fix for low turnout in municipal elections and a way to attract business owners to the community.

“These are folks that have fully invested in their community with their money, with their time, with their sweat. We want them to have a voice if they choose to take it,” Seaford mayor David Genshaw told local station WRDE. Genshaw cast the deciding vote in a split City Council decision on the charter amendment in April, according to The Lever.

According to Delaware Online, there are 234 entities, including LLCs, trusts and corporations, headquartered in Seaford — a significant number for a town where an April election only garnered 340 votes.

It appears that other Delaware towns already allow corporations to vote, with results that might have been predicted:

In 2019, it was revealed that a single property manager who controlled multiple LLCs voted 31 times in a Newark, Delaware, town referendum, an incident that led Newark to amend its rules. And residents in Rehoboth Beach in 2017 beat back a proposal to allow LLCs to vote.

Delaware has long been noted for being “corporation friendly,” but until I read this particular news item, I didn’t realize just how friendly. The state allows owners of LLCs to stay anonymous. It relieves businesses of the “burden” of paying corporate income taxes. And as every business lawyer knows, the vast majority of corporations headquartered in Delaware– including two-thirds of Fortune 500 companies– don’t have a physical presence there.

American laws do consider corporations “people” for certain very specific purposes–doing business in the corporate form encourages economic activity that benefits us all. If you start a business and it goes broke, your personal assets can be protected from the business’ creditors. Without that protection, many fewer businesses would be formed. And–giving Romney credit for what he evidently meant in that infamous exchange–corporations are indeed formed, managed and owned by real people.

But in a society where the economic gap between the haves and the have-nots is uncomfortably large and continuing to grow–a country where legal structures already favor those with money and status– giving the already-privileged an extra tool to cement and augment their already significant advantages doesn’t seem like a particularly good idea.

The preamble to the Constitution of the United States begins with “We the People.” I’m pretty sure the Founders didn’t intend that “people” reference to include corporations.

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Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette.

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology. These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs, focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.

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