Category Archives: Public Policy and Governance

Allow Me To Translate..And Pontificate

In a recent column in the New York Times, Thomas Edsall once again returned to the subject of political polarization, and–as is his typical approach–quoted scholars on the subject. As a former member of that tribe, I will admit that the problem with quoting academics is the occasional impenetrability of the language. (It’s not a problem limited to academia–not long after becoming Executive Director of Indiana’s ACLU, I was counseled by a member of the national staff to stop sounding like an “ACLU lawyer.” Every career has its jargon…)

At any rate, allow me to quote–and then translate–one of the scholars who responded to Edsall:

Interventions to reduce affective polarization will be ineffective if they operate only at the individual, emotional level. Ignoring the role of polarizing politicians and political incentives to instrumentalize affective polarization for political gain will fail to generate change while enhancing cynicism when polite conversations among willing participants do not generate prodemocratic change.

In other words, polarization isn’t just a matter of individual hostility for those on the other “team.” Political leadership bears considerable responsibility for MAGA resistance to democratic norms. The polarization reflected in our everyday conversations is cultivated by political “culture warriors” like Georgia’s Marjorie Taylor Green and her Indiana clone, Jim Banks. As a different scholar (one evidently more comfortable with normal English usage) put it:

I don’t think any bottom-up intervention is going to solve a problem that is structural. You could reduce misperceptions for a day or two, or put diverse groups together for an hour, but these people will be polarized again as soon as they are exposed once more to campaign rhetoric.

A recent study evidently found that widespread popular opposition to anti-democratic policies is insufficient to prevent their adoption. That research found that what the scholars called “backsliding behavior by elites” occurred irrespective of a lack of public approval or support; and that much of the problem is rooted in the fact that “Americans, despite their distaste for norm violations, continue to elect representatives whose policies and actions threaten democracy.”

In other words–and this will most definitely not come as a shock to any citizen who’s been paying even the slightest attention–virtually all of the current dysfunctions of governance are caused by the various doofuses we’re electing. (I cannot restrain myself from reminding you, dear readers, that it is frequently thanks to gerrymandering that we are electing these performative, anti-democratic culture warriors.)

As another scholar opined,

Whatever techniques might exist to reduce citizen animosity must be accompanied by efforts to reduce hostility among elected officials. It doesn’t matter if we can make someone more positive toward the other party if that effect is quickly undone by watching cable news, reading social media, or otherwise listening to divisive political elites.

In other words–as several of the researchers contacted by Edsall confirmed– positive effects of efforts to intervene and ameliorate polarization “are almost immediately nullified by the hostile rhetoric in contemporary politics.”

A professor of psychological science at the University of California-Irvine attributed the persistence of polarization to what he dubbed a “moralized political environment,” and that phrase resonated with me. I am hardly the only person to see today’s political disputes as evidence that contemporary political combat takes place between partisans who hold significantly different values. 

As Edsall noted,

The issues dividing the parties have changed. When the two parties fought over size of government, taxes, social welfare programs, it was possible for partisans to imagine a compromise that is more or less acceptable even if not ideal. Compromise on issues like abortion, gender roles, L.G.B.T.Q.+ rights, the role of religion is much more difficult. So losing feels like more of a threat to people’s values.

From my vantage point, we have moved from good faith arguments about the proper approach to various issues–the “how”–to arguments about “whether.” Rather than debating, say, the best way to feed poor children, we confront self-identified “pro life” politicians who simply oppose spending any tax dollars on food for poor children. Rather than debates about America’s global role and the least dangerous way to approach Putin’s ambitions in Ukraine, political figures like Braun and Banks vote–as conservative George Will wrote–“to assure Vladimir Putin’s attempt to erase a European nation.” Etcetera.

We aren’t having “political” arguments. We are having deeply moral ones.

Survey research confirms that a majority of the American public is on the right side of those moral debates–but that obsolete political structures allow MAGA Republicans–a statistical minority– to ignore We the People.

Political structures empowering ideological minorities are the reason we can’t just “make nice” and “all get along.”

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Complicated–And Consequential

The virtue of America’s current battle over a woman’s right to control her own body is its clarity. Either a woman has the right to determine whether she will give birth, or the government has the right to force her to do so, irrespective of the consequences for her health and well-being.

It’s either/or. 

Other threats we face are much more subtle and complicated. Policy changes that may seem innocuous or even reasonable on the surface have the potential to undermine rules that demonstrably serve the common good. An example is the passage this year of bills in Indiana, Nebraska, and Idaho that propose to end “judicial deference.”  Judicial deference is a doctrine that requires federal or state courts to “defer” to administrative agencies’ interpretations of agency statutes and regulations. Instead, those bills require courts to apply de novo review — to examine executive agency actions without bothering to give weight to that agency’s interpretation of the statute or regulation in question.

The bills were based on model legislation: the Judicial Deference Reform Act, developed by The Goldwater Institute and the Pacific Legal Foundation. Those bills might not have been necessary, though–our radical, rogue Supreme Court, unconstrained by precedent, appears ready to junk that doctrine, called The Chevron doctrine after the long-ago footnote that established it. 

Why should we care about this arcane bit of jurisprudence? As one recent analysis explained, overturning the Chevron doctrine would allow individual judges to implement their partisan policy preferences instead of abiding by agency expertise.

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation. Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting agencies regulatory authority for the past 40 years. Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal agencies to operate under….

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise. As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,” which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.” Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

As the linked article notes, the conservative legal movement’s long effort to use the legal system to serve the interests of  corporate behemoths at the expense of sound policy and the broader interests of the American public seems increasingly likely to succeed.

The doctrine requires “deference”–not submission. If evidence produced at trial shows that an agency’s interpretation of a rule is unreasonable, the courts can and should overturn that interpretation. But discarding the requirement that courts should defer--not “buckle under”–is yet another blow to respect for knowledge and expertise. 

Executive branch agencies increasingly deal with matters requiring considerable subject-matter knowledge. Officials of the EPA are highly likely to know more about unsafe levels of arsenic in drinking water than a judge presiding over a case brought by a company that has been fined for exceeding that level in its discharge into a local river. Officials at the FDA have met professional standards for evaluating the safety of food and/or the efficacy of drugs. Recently, we’ve been reminded of the importance of informed FAA oversight of aircraft manufacturers like Boeing. The growing complexities of modern life–in technology, in medical science, in product safety–requires acknowledging the importance of specialized expertise.

The courts have operated under Chevron deference since 1984. That deference has not kept them from invalidating unreasonable or overbroad interpretations of statutes and regulations. It has, however, required judges (who come to the bench with a very different kind of expertise) to listen carefully to the reasons agency personnel interpret a given rule in the way that they do.

Most Americans have never heard of Chevron; in Indiana, Nebraska and Idaho, most citizens are blissfully unaware of the passage of laws discarding the doctrine.

The threat posed by overruling the doctrine is far less obvious than the threat to women’s autonomy–but that doesn’t mean this assault on expert knowledge isn’t significant.

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What It Means To Recognize Complexity

I could have written the introduction to a recent New York Times column by Frank Bruni. In fact, I’ve written some posts that sound eerily familiar! Those of you who’ve read this blog for a while will recognize the similarity; here’s his lede:

I warn my students. At the start of every semester, on the first day of every course, I confess to certain passions and quirks and tell them to be ready: I’m a stickler for correct grammar, spelling and the like, so if they don’t have it in them to care about and patrol for such errors, they probably won’t end up with the grade they’re after. I want to hear everyone’s voice — I tell them that, too — but I don’t want to hear anybody’s voice so often and so loudly that the other voices don’t have a chance.

And I’m going to repeat one phrase more often than any other: “It’s complicated.” They’ll become familiar with that. They may even become bored with it. I’ll sometimes say it when we’re discussing the roots and branches of a social ill, the motivations of public (and private) actors and a whole lot else, and that’s because I’m standing before them not as an ambassador of certainty or a font of unassailable verities but as an emissary of doubt. I want to give them intelligent questions, not final answers. I want to teach them how much they have to learn — and how much they will always have to learn.

When I was still teaching, I echoed every bit of that message–adding to the repeated admonition about complexity a lawyer’s reminder that issues are inevitably fact-sensitive. In other words, “it depends.”

Bruni’s essay goes on to address something my previous posts did not–why the recognition of complexity matters. It’s about humility. As Bruni says, recognizing that “it’s complicated” is a bulwark against arrogance, absolutism, purity and zeal.

As eminent jurist Learned Hand famously put it, “The spirit of liberty is the spirit that is not so sure it’s right.”

Arrogance, absolutism, purity and zeal…could there be a more succinct, more accurate description of the crazies in the Senate and especially the zealots in the House of Representatives who are currently preventing thoughtful governance? (We should have a t-shirt with those words printed on it sent to Indiana’s own version of Marjorie Taylor Green, Jim Banks…)

Bruni asserts–I think properly–that humility is the antidote to grievance, and that grievance is the overwhelming political motivator these days.

We live in an era defined and overwhelmed by grievance — by too many Americans’ obsession with how they’ve been wronged and their insistence on wallowing in ire. This anger reflects a pessimism that previous generations didn’t feel. The ascent of identity politics and the influence of social media, it turned out, were better at inflaming us than uniting us. They promote a self-obsession at odds with community, civility, comity and compromise. It’s a problem of humility.

 The Jan. 6 insurrectionists were delusional, frenzied, savage. But above all, they were unhumble. They decided that they held the truth, no matter all the evidence to the contrary. They couldn’t accept that their preference for one presidential candidate over another could possibly put them in the minority — or perhaps a few of them just reasoned that if it did, then everybody else was too misguided to matter. They elevated how they viewed the world and what they wanted over tradition, institutional stability, law, order.

Bruni reminds readers that successful government requires teamwork, and that any significant progress requires consensus. “Governing, as opposed to demagoguery, is about earning others’ trust and cooperation. Exhibiting a willingness to listen to and to hear them goes a long way toward that.”

The entire linked essay is worth reading. Its message is especially pertinent to Hoosiers as Indiana winds down to the May 7th primary election. The vicious, nasty, dishonest ads being aired ad nauseam by Republicans running for Governor and for Congress are reminiscent more of monkeys throwing poo than messages from serious individuals willing to act upon their understanding of the common good. These contending political accusations display no hint of humility, no recognition of complexity, not even a nod toward civility. (Research suggests that voters’ response to such negative campaigning isn’t a vote for the particular monkey throwing the poo, but rather a decision to stay home on election day. That’s an unfortunate, but understandable, reaction.)

America faces complicated, pressing issues. We really need to stop electing purists and zealots who are ill-equipped to understand the complexity of those issues and too arrogant and absolutist to engage in the democratic negotiation and compromise necessary to solve them.

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The Policy Dilemma

Ever since the Internet displaced slick magazines and daily printed newspapers, wise readers have heeded the warning to avoid the comments.  Something about the anonymity of online responses evidently unleashes some truly hateful impulses. Consequently, except for comments on this blog, I tend not to read the opinions posted by readers of various articles and op-ed pieces. But I do read the “Letters to the Editor” published in the printed magazines I still receive, and I recently read one that deserves wider distribution.

It was printed in the New Yorker, and in a few brief sentences, the writer outlined a central conundrum of policymaking in democratic systems. The letter was a response to an article by Sam Knight about the “uneven performance” of Conservative rule in the United Kingdom. The letter-writer wrote:

But Knight overlooked one force that has shaped the country’s trajectory: the extent to which its government has, since the seventies, transformed from a representative democracy, in which major decisions were made solely by elected officials with support from the civil service, to a popular democracy, in which some of the biggest questions are decided by popular vote rather than by Parliament.

This transformation has created a truly irrational system, which takes important questions influenced by many complicated variables and boils them down to simple binary decisions to be made by people who may not be thoroughly informed. Democracy should remain an ultimate value in the U.K., but, if it is to persist, it must produce positive results for its citizens—something the Brexit referendum clearly has not done. Alas, the supporters of referendums lose track of the ultimate justification for a democracy—namely, that our elected representatives know that we, the voters, can throw them out if we think they are managing the country badly. It is simply wrong to equate this truth with an unproven assumption that voters also have the collective wisdom to regularly make wiser choices about complex issues than our representatives do.

Conservatives in the U.S. have historically insisted–correctly–that this country was not intended to be a pure democracy, but a democratic republic. (I’m not sure everyone making that assertion could have explained the difference, but that’s another issue…) The Founders created a system in which we citizens (granted, then only citizens who were property-owning White guys) democratically elected members of the polity to represent us. The idea was that we would vote for thoughtful, educated, hopefully wise individuals, who would have the time, disposition and mental equipment to analyze complicated issues, deliberate with other, equally-thoughtful Representatives, and negotiate a policy thought likely to address that particular problem.

Direct democracy would put such questions to a popular vote, and complicated issues would be decided based upon the “passions of the majority” that so worried the men who crafted our Constitution.

The Founders’ system makes eminent sense–but it only works when two elements of our electoral system work.

First of all, it absolutely depends upon the qualities of the Senators and Representatives we elect. And second, it depends upon the ability of the voting public to oust lawmakers with whose priorities and decisions they disagree– lawmakers who are not doing what their constituents want.

Those two elements currently do not work, and those electoral dysfunctions explain the inability of our federal legislature (and several state legislatures) to function properly–i.e., to govern, rather than posture. Gerrymandering is at the root of both of these failures, and the reason for the vastly increased resort to popular referenda and initiatives.

Thanks to partisan redistricting, far too many of the people elected to the House of Representatives (Senate elections are statewide and cannot be gerrymandered) are simply embarrassing–ideologues and outright lunatics performing for the base voters of their artificially-constructed districts. People like Paul Gosar and Marjorie Taylor Green, or Indiana’s version of MTG, Jim Banks, all of whom endangered America’s international interests by holding up and then voting against critical aid to Ukraine, among many other things–are examples of the intellectually and emotionally unfit and unserious “look at me” wrecking-ball caucus.

Gerrymandering also limits voters’ ability to rid ourselves of these impediments to rational governance.

There are other aspects of our electoral system that desperately need revision or elimination: the Electoral College comes immediately to mind. But the elimination of gerrymandering–partisan redistricting–would go a very long way to re-centering the system and encouraging thoughtful, reasonable people on both the Left and Right to run for office.

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And Then There’s The Court…

Equal Justice Under Law. That motto is both aspirational and descriptive; in four words, it summarizes the whole point of the rule of law–the founding premise of America’s Constitution and Bill of Rights. Well-paid lobbyists may influence legislation to give Group A an advantage over Group B, elected officials may listen more carefully to people who wrote big checks to their campaigns, but citizens are supposed to be able to appeal for justice to the nation’s courts, and those courts are supposed to  administer equal justice under the law.

Granted, it has never worked that seamlessly. Judges are human, with human biases and foibles. Laws are often opaque. Access to the nation’s courts requires resources–either substantial funds or representation by one of the country’s public interest law firms, like the ACLU or Lambda Legal. But for a long time, America’s courts–especially its federal courts–have been there to redress inequality and corruption and instances of fundamental unfairness.

Now, thanks in large part to Mitch McConnell and Donald Trump, the Supreme Court itself has been corrupted. Any doubts on that score were laid to rest during the Court’s eye-opening and frequently chilling hearing on Trump’s ridiculous “immunity” claims. Those claims had been summarily and properly dismissed by the lower courts, and I fully expected the Supreme Court to follow suit. After all, the Court’s unnecessary delay in addressing the claim had given Trump what most observers knew he really wanted: a delay. The appeal was a transparent effort to postpone Jack Smith’s case until after the election, and most of us who were following the case expected the Court–having given him that delay– would rule on the merits by affirming that no one is above the law.

I will leave further discussion and analysis of that oral argument to the multitude of observers who found it appalling, because I want to address other aspects of the high court’s corruption that are relevant to the widespread loss of respect for that body and to the growing calls to expand its membership.

Over the past few years, Americans have learned about the truly gob-smacking conflicts of interest, money-grubbing and pious dishonesty of Clarence Thomas and Samuel Alito. The head of the Alliance for Justice pulled no punches:

Today, our republic is buckling under the weight of those misdeeds, as Americans no longer trust their Supreme Court to be a citadel of democracy and justice. Quite the opposite — they have come to expect the worst from our pay-for-performance judiciary. Are we really going to stand idly by and do nothing about this corruption?”

A recent article from The Intercept pointed to a lesser-known but no less troubling influence of money on the Court. The article focused on a case challenging two states’ efforts to limit social media moderation of user-posted content (which Texas Attorney General Ken Paxton equated to “censorship) then turned to the broader issue of influence.

After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.

Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.

The article quoted Sarah Lipton-Lubet, president of Take Back the Court,

“It’s no secret that the many of the rich benefactors cozying up to the conservative justices are the same people who fund right-wing organizations with business before the court. But too often, stories about the Supreme Court don’t connect these dots — and as a result, they leave us with an incomplete picture.”

A reform bill authored by Senator Sheldon Whitehouse–described in the Intercept article– would be a good first step, but it is past time to consider enlarging the Court and imposing 18-year term limits on Justices, among other measures that are being considered. (When lifetime tenure was established, people didn’t live as long as they do today. Eighteen years is sufficient to accomplish the goal of lifetime terms, which was to insulate the Justices from political pressure.)

The Court has never been the unblemished guardian of liberty that we like to think, but its current, shameful partisanship and outright corruption are a new low. It’s time for a change.

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