Restoring The Rule Of Law

In early September, a post to the Lawfare blog considered what it would take to repair the Trumpian assault on the rule of law.

For those unfamiliar with Lawfare, the blog–launched in 2010– is devoted to what it describes as “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.”

I often talk about the rule of law without bothering to define it, but at this juncture in our shared national experience, I think it would be useful to step back and do so. The American Bar Association definition will do nicely:

The rule of law is a set of principles, or ideals, for ensuring an orderly and just society. Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.

The linked post begins by stating the obvious: Trump’s tenure has been a constant, unremitting assault on those principles, and the behavior of his administration has inflicted considerable damage on America’s most fundamental values.

His attacks on the free press, the independent judiciary and the independence of the Department of Justice have all created significant damage. His abuse of executive discretionary authority has made a mockery of the concept of checks and balances. His gaming of the judicial system has revealed weaknesses in our legal process. His attempts to place himself (and his family and his business interests) above the law have called into question foundational national conceptions of equal justice. In short, President Trump has led a wrecking crew (aided and abetted by William Barr and Mitch McConnell) that has severely damaged American legal norms of behavior.

The question, of course, is “what can we do about it?” Assuming a Biden victory in November, what are the remedies available to policymakers to restore respect for and adherence to the fundamental principles of the rule of law?

Because Lawfare’s focus is on foreign policy, the linked post primarily describes specific aspects of Presidential authority and Congressional oversight that are important to the conduct of foreign affairs. But most of the recommendations sweep more widely–for example, tightening the conditions under which Presidents can place “acting” officials in important government positions, and for how long–a process that currently allows a President to avoid having the Senate determine whether that individual is qualified and should be confirmed. As the post reminds us, the Trump administration “has exploited this authority to avoid the Senate confirmation process while placing preferred individuals in key positions.”

Other reforms with broad implications would make disclosure of Presidential tax returns mandatory (this one needs no explanation), and significantly narrow  Presidents’ ability to declare “emergencies” and thus exercise emergency powers. Added protections for Inspectors General would likewise seem obvious–and important.

There are other reforms suggested, and the post is worth reading in its entirety. I hope incominglawmakers take its recommendations seriously.

Assuming–as hopeful people must–a wholesale repudiation of this lawless and dangerous administration and its GOP enablers, Americans can decide to make a silk purse out of the  Trumpian sow’s ear–we can see from the lawless behaviors and the assaults on democratic norms where the legal and structural weaknesses are, and move to strengthen them. We can re-commit this country to the rule of law and to our founding aspirations.

Or, of course, we can lapse further into tribal conflict, and thereby accelerate America’s decline.

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Taxes, Politics And The Urban/Rural Divide

Michael Hicks directs the Center for Business and Economic Research at Ball State University. His columns appear in the Indianapolis Business Journal, among other publications, and while I have my disagreements with certain of his research perspectives, he often raises issues worth considering.

Last week, he focused on the urban/rural divide–and what we might call a “maker/taker” taxation paradigm.

Hicks began by cautioning against the prevailing image of rural America as a monolith. It’s an important caution: rural communities differ from each other economically and in the degree of diversity of their populations.

That said, they also share common challenges and characteristics.

Over the last century, America’s rural counties haven’t really grown. We have roughly the same number of rural residents as we did in Teddy Roosevelt’s administration, but urban America is more than five times larger. Four out of five Americans live in urban counties as designated by the Office of Management and Budget. To be fair, many of the urban counties have plenty of row crops in them, and rural counties have many small cities. Also, much of the growth in urban places came in formerly rural counties, as has always been the case. Still, urban counties differ in other meaningful ways that are likely to influence future policy. The second big issue is taxes and spending.

Rural places are large beneficiaries of federal dollars. By some estimates, per capita spending by the federal government is twice as high in rural than urban places. Most of this goes into agriculture subsidies, so rural communities probably don’t perceive the spending. Most may not actually benefit from it. Still, that is a legitimate critique offered by urban taxpayers, who foot most of the bill. Rural residents ought to be more conscious that these large subsidies provide few benefits for their community, while alienating urban taxpayers.

There’s no national study, but here in Indiana, rural places are also big beneficiaries of state tax dollars. This is per a 2011 study jointly authored by Ball State and the Indiana Fiscal Policy Institute. In that study, we estimated that rural places get more than $560 more per resident in taxes than they pay, while urban places get almost $160 less per resident than they pay. It is a plain fact that state and federal taxpayers subsidize rural places at the expense of cities and suburbs. What is not so clear is whether or not this spending makes a meaningful difference in the lives of rural people. I suspect it does not. This is almost certainly true in every other state.

Not only do state and federal distribution formulas advantage rural areas over urban ones, but Hicks notes that rural communities tax themselves less than urban places. In Indiana, per capita taxes are approximately ten percent lower in rural areas than they are in urban counties, and it is likely that this is true nationally.

As Hicks acknowledges, this pattern means that taxpayers in growing metropolitan places–places that need to repair and extend their infrastructures and municipal services–are subsidizing static and declining rural areas. He suggests there will be a reckoning–and certainly, in Indiana, with our ill-advised constitutionalized tax caps, that reckoning will come sooner rather than later, because the state’s urban areas are being starved of desperately needed resources.

What Hicks doesn’t mention is a significant political reason for this disparity in resources: gerrymandering.

In Indiana–and other red states where Republicans control redistricting– a majority of electoral districts have been drawn to ensure that they contain majorities of reliably Republican voters–and those voters are overwhelmingly rural. The result is that a super- majority of the state’s lawmakers are responsive to rural interests and dismissive of the needs of the urban areas that have been carved up by map-makers–despite the indisputable fact that the urban areas are the state’s economic drivers.

Talk about “makers” and “takers”!

It’s one more inequity we won’t get rid of until we get rid of gerrymandering.

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An Omen?

In Indiana, early voting started yesterday, and my husband and I got to the City-County Building at 8:00 a.m., when the polling place in the Clerk’s office was to open.

We didn’t stay to vote–because the line, at 8:03, already wound entirely around the block–and our blocks are long. (My husband, who just turned 88 and has a bad ankle, cannot stand for long, so we decided to take a folding chair and try again Friday.) There were several hundred people there, before the Clerk’s office even opened, determined to cast their ballots, and while impressions can be misleading, I’m pretty sure they weren’t Trump voters. It was beautiful.

Posts to Facebook showed the line replenishing through the day, and some people reported a three-hour wait to vote.

Granted, we live in a city, and in a world increasingly polarized into red and blue, cities of reasonable size are all deep blue. If there is similar turnout in the rural, deeply red parts of Indiana, we’re unlikely to turn the whole of our retrograde state blue–but that incredibly long line was immensely heartening.

I know that every election is touted as “most important.” But this time, it is clearly true. This election is about policy, of course–but at its center, it is a morality play. It will test whether our fellow Americans are prepared to recommit to the American ideals about equality that we’ve yet to achieve–or whether a majority of us will adamantly reject the goal of e pluribus unum–out of the many, one.

At its core, this election is about whether we will disavow or endorse bigotry.

The moral significance of this election is why I am really, really hoping that Trump survives COVID-19. As conservative columnist Bret Stephens wrote in yesterday’s New York Times,

We wish him well because if, God forbid, the president were to die this month, he would go down undefeated, a martyr to the tens of millions of Americans who’ve treated him as a savior. Trump’s death would guarantee a long life for Trumpism, with his children as its principal beneficiaries.

We wish him well because Trump’s opponents — Democrats and NeverTrumpers alike — need a clean political victory. If Trump survives but is forced to endure a difficult recovery, it could put the hideousness of last week’s debate behind him, mute the criticism of his performance and soften his image in the eyes of wavering voters. The longer he lingers, the better his chances may be, at least politically.

We wish him well because if illness keeps him sidelined and he winds up losing the election, he will surely blame the disease for the loss. This could well be untrue (see above), but it won’t stop his supporters from believing it. Again, Trump the man needs to live — and lose — because it’s the only way the Trump cult might die.

For me, by far the most depressing aspect of the last twelve years has been the need to come to terms with an ugly reality–the number of Americans who embrace white nationalism, who have “come out” and shown the rest of us who they really are.

Until Obama’s election, I naively thought that the percentage of the population that was racist and hateful was relatively small. I was stunned when the rocks they’d been hiding under lifted, and they crawled out, spewing venom; I was demoralized and disheartened by their enthusiastic agreement with Trump’s insistence that civility, empathy and human-kindness are evidence of weakness in the face of “political correctness.”

This election will tell us how plentiful these people really are. It will tell me if my longstanding belief in the essential goodness and common sense of most Americans was hopelessly naive, or justified.

I hope that line at the City-County Building was an omen.

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A “Collective Psychotic Episode”

Tuesday’s post, published early by mistake. See you Wednesday morning.

I am (unhappily) persuaded that the thesis of an October 4th article for Salon is correct.

David Mascriotra’s opening line was “There is only one political party in the United States.” He went on to defend that observation

The first presidential debate between Joe Biden and Donald Trump demonstrated with hideous clarity that the Democratic Party is currently running against not a conservative public policy agenda or a coherent philosophy of governance, but a collective psychotic episode, channeled through an authoritarian demagogue who is equally propelled and crippled by his own neuroses.Gore Vidal, one of America’s best chroniclers of empire, once provided instruction to a British interviewer expressing confusion over the radical hostility Republicans showed toward Barack Obama, and the former president’s inability to react with equal aggression: “Obama believes the Republican Party is a political party when in fact it’s a mindset, like Hitler Youth, based on hatred — religious hatred, racial hatred. When you foreigners hear the word ‘conservative’ you think of kindly old men hunting foxes. They’re not, they’re fascists.”

Mascriotra doesn’t fall into the all-too-frequent mistake of centering his criticism on Trump and his gang that can’t shoot straight. His analysis focuses on the real problem–the fact that the Republican Party has  undergone a radical transformation from a genuine political party into a cult–or, as the quoted paragraph graphically puts it, a “mindset.” And a pretty ugly mindset, at that.

This analysis rejects the (weak) excuse that Republican office-holders don’t stand up to Trump because they are afraid of what the author calls the “bloodlust” of the Trump cult. Although there is undoubtedly some of that, he argues that–at least at the federal level– they share Trump’s hatred of democracy, and he shares statements from several of the “usual subjects”– Rep. Matt Gaetz of Florida, Sen. Tom Cotton of Arkansas and others–to prove his point.

Republican officeholders and voters “are glad to see him waging war on a system designed to give representation and power to a diverse group of citizens.”

We all know what “diverse group of citizens” means: brown and black people, women, gays, Jews and Muslims. It always comes back to what is increasingly impossible to ignore– the almost total capture of the GOP by white supremacists. To rank and file Republicans, “Making America great again” means recommitting the country to the rule and social dominance of white male Christians. As Mascriotra says, “there is no other reasonable conclusion to draw from the fact that between 80 and 90 percent of Republicans approve of Trump’s performance in office.”

That conclusion –that the GOP is no longer a party, but a white supremacist cult– is also supported by the lack of anything resembling an agenda or a platform.

An American without health insurance, or who pays a high monthly premium for inadequate coverage, can expect nothing from the Republican Party. Working parents who cannot afford child care and have no disposable income after paying each month’s bills can expect nothing from the Republican Party. A young college graduate unable to qualify for a mortgage because he has tens of thousands of dollars in student debt can expect nothing from the Republican Party. Poor children suffering through hunger and struggling to learn basic skills in a dysfunctional school can expect nothing from the Republican Party.

Mascriotra quotes George Will for the proposition that the GOP has abandoned any former connection to a coherent, genuine conservatism. He concludes that Trump’s inability to debate Biden, evidenced by his descent into tantrum and invective, was largely because Republicans no longer have principles or programs to debate or defend.

Through their multi-decade commitment to shrinking government down so small that it can “drown in a bathtub,” to use the words of Grover Norquist, what was once a reasonably coherent pro-business conservative party has arrived at its logical endpoint — a fascist power grab under the guise of an incoherent personality cult.

The late Stanley Crouch warned Republicans of their trouble in the late 1990s, explaining to Charlie Rose that you “cannot assemble a group of lunatics” to follow you without eventually following them into lunacy.

Reminds me of the lyric from the song, “Bring in the clowns.”

Don’t bother–they’re here.

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FIXING it

Yesterday’s post focused on legal reforms aimed at official corruption. Important as those are, they aren’t the only reforms we need to make.

We need to fix our elections.

Even those of us who follow politics closely and who are familiar with the country’s legal framework often miss the way in which demographic shifts have upended America’s electoral system and shifted power to an unrepresentative minority of voters– aided and abetted by America’s minority party.

Over the last few years, more people have come to recognize the inequities caused by gerrymandering and the Electoral College, but beyond that, our comfort with “the way it is” has blinded us to the equally troubling consequences of equal Senate representation, for example. Currently, over half the U.S. population lives in just nine states. The result is  that less than half of the population chooses 82 percent of the country’s Senators. And that means that the Republicans hold their current Senate majority despite the fact that the Democratic Senate minority represents more than half of the American people.

A recent article from Vox, which led off with that example of distorted representation,  offered eleven proposals to fix what has evolved into an unfair and unequal system. The article began with a recitation of several of the most egregious elements of our decidedly undemocratic reality.

Intentional efforts to make it harder to vote, such as voter ID laws, are increasingly common throughout the states — and the Supreme Court frequently approaches such voter suppression with indifference. Gerrymandering renders many legislative elections irrelevant — in 2018, Republicans won nearly two-thirds of the seats in the Wisconsin state assembly, even though Democratic candidates received 54 percent of the popular vote. Wealthy donors flood elections with money, as lawmakers spend thousands of hours on “call time,”dialing the rich to fund the next campaign.

And looming over all of this is the problem of race. In some states, Republican lawmakers write voter suppression laws that target voters of color with, in the word of one federal appeals court, “almost surgical precision,” knowing that a law that targets minority votes will primarily disenfranchise Democrats.

After the Democrats took the House in 2019, the first bill they passed was the “For the People Act.” If that act passed the Senate– which did not happen and will not happen so long as Mitch McConnell is in charge of that body–Vox says it would be the most significant voting rights legislation since the Voting Rights Act of 1965. (A companion bill, HR 4, would strengthen that original Voting Rights Act by restoring sections of the law that were eviscertated by the Supreme Court.)

That said, as the article correctly noted, even if those measures are enacted, they would still fall short of addressing the major and troubling challenges facing Americans’ electoral system. They wouldn’t address Senate malapportionment or the Electoral College –both systems that hand control of the government to an unrepresentative, predominantly rural minority of our citizens.

The eleven “fixes” identified by Vox include much-discussed measures like eliminating the filibuster and revitalizing the Voting Rights Act, but also less-often suggested changes like eliminating advance registration in favor of same-day voter registration. (A number of states are moving in that direction, which has the benefit of also eliminating flawed and partisan purges.)

Then there are the changes that would make it easier to vote: more early voting, no-excuse absentee voting and other measures that would actually facilitate the process of casting a ballot. What if we emulated Australia, for example?

In Australia, over 90 percent of eligible voters typically cast a ballot in federal elections. The nation achieves this feat by turning Election Day into a celebration, where voters gather at community barbecues to eat what are often referred to as “democracy sausages.” But Australia also uses a stick to encourage voting — nonvoters can be fined about $80 Australian dollars (about $60 in US currency) if they do not cast a ballot.

You really need to read the whole article, but even those who disagree with some of its specific recommendations will find it hard to argue with the proposition that it is past time for lawmakers and citizens alike to focus on the numerous, fundamentally unfair elements of the way we choose America’s leaders.

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