Thank God It’s A Short Session…..

Yesterday, I posted about one of the more odious bills being considered by Indiana’s legislature.

It’s just one example of why I always get an uneasy feeling when Indiana’s General Assembly is in session. Indiana’s legislators are an unpredictable mix; there are some thoughtful people who can genuinely be characterized as public servants, and then there are the others–religious zealots, wheeler-dealers, and a collection of rabid partisans for whom politics is a sport and their only loyalty is to their team.

This year, the legislature meets for its 60-day short session. (In Indiana, regular and short sessions alternate.) The fact that time to consider bills is limited, however, doesn’t prevent our culture warriors from introducing divisive and/or ridiculous proposals, which is one reason why Harrison Ullmann, the now-deceased editor of NUVO, our local alternative paper, always referred to Indiana’s General Assembly as “the World’s Worst Legislature.”

It isn’t just Rep. Soliday’s proposed gift to coal companies. A week or so ago, I posted about a bill authored by one Representative Curt Nisly–in addition to prohibiting all abortions, the bill presumed to forbid the courts to declare the measure unconstitutional or the executive branch to enforce any such court decisions if made. While I grant that the degree of constitutional ignorance displayed by that measure puts Nisly in a class of his own, plenty of other bills  demonstrate the often bizarre, corrupt and/or inhumane priorities of too many Indiana lawmakers.

In the “bizarre” category, the Northwest Indiana Times reports, tongue firmly in cheek:

The Indiana House is poised to vote Tuesday on what may be the most significant piece of pro-worker legislation since Republicans took majority control of the chamber in 2011.

It’s not an increase in the state’s $7.25 per hour minimum wage, unchanged since 2009. It’s not a requirement that businesses provide employees with their work schedules a week in advance. And it certainly won’t make it easier for workers to organize into unions and collectively bargain for wages and benefits.

Instead, House Bill 1143 would expressly prohibit an employer from requiring an employee, or a job candidate, to have an identification or tracking device implanted in their body as a condition of employment.

According to the Legislative Services Agency, there are currently no employers in the U.S. requiring such implantation. But hey–it might happen. You never know…

The ACLU of Indiana has a list of pending bills that threaten civil liberties, including one that Doug Masson analyzes at Masson’s Blog prohibiting persons born biologically male from competing in school sports contests against females. As he concludes:

As far as I can tell, this legislation isn’t so much an effort to address a real problem as it is simply a vehicle for expressing unhappiness that society is increasingly recognizing that gender identity is not perfectly correlated with biological sex.

Indiana’s lawmakers tend to be fixated on issues around sex and sexuality. Case in point is a measure that definitely belongs in the “inhumane” category: Indiana Senate Bill 300. This effort to allow discrimination in the service of (certain people’s) religion would allow mental health professionals to turn away clients seeking emergency services for suicide prevention and emergency interventions, “on the basis of sexual orientation and gender identity, those who have received reproductive services, those who are divorced, etc.”

Ironically titled “Conscience protection for mental health providers” the measure would prohibit a hospital or other employer from discriminating against or disciplining such a professional because of the “sincerely held ethical, moral, or religious belief” that impelled that “professional” (note quotation marks) to withhold emergency assistance to desperate people of whom he or she “sincerely” disapproves.

Indiana’s public schools are underfunded. Our teachers are underpaid. Indiana’s infrastructure is crumbling. Hoosiers are embarrassingly unhealthy. The opiod epidemic has been brutal here. I could go on and on.

But thanks primarily to gerrymandering, those issues get short shrift. The bills referenced above are a very small sample of the damaging nonsense that our legislators prefer to address, and that we Hoosiers have come to expect.

At least it’s a short session….

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Speaking Of The Legislature…

Indiana’s legislature is in session, demonstrating that it isn’t only Republicans in Washington who are more interested in protecting favored industries (aka donors)than the public or the environment. (I know, you’re shocked!)

Hoosiers and regular readers of this blog may remember the 2017 bill that made it much less advantageous for homeowners in Indiana to install solar.

Homeowners selling excess power generated by their solar panels back to the utility lost most of the benefit of doing so under Senate Bill 309. Prior to its passage, if you had rooftop solar, “net metering” allowed you to send any excess energy you generated back into the grid, with the utility crediting you for that excess at the same rate that you pay the utility for power when you aren’t generating enough to cover your needs.

Even if it was an even swap, however, you still had to pay the utility an amount sufficient to cover its overhead costs–billing, meter reading, etc. Fair enough.

After passage of SB 309, you were forced to sell all the electricity you generated to the utility at a much lower price than the utility charged you, and then buy back what you need at their substantially higher “retail” price.

Solar energy may be good for the environment, and good for consumers’ pocketbooks, but it had begun to cut into the profit margins of the big electrical utilities. Friends at the legislature to the rescue!

This year, the legislature is showing its solicitude for coal.

Credit where credit is due; the Indianapolis Star, which rarely covers government these days, had the story:

Hoosiers’ electricity bills could rise and several state utilities may face obstacles in their plans to phase out coal-based power generation in the coming years under politically charged legislation that would help a struggling Indiana industry.

House Bill 1414, filed last week by state Rep. Ed Soliday, R-Valparaiso, would require Indiana utilities to prove that any plans to shut down a power plant are either required by a federal mandate or otherwise in the public interest.

But not just any plants. Though the word “coal” does not appear once in the language of the bill, advocates and analysts say the legislation specifically targets coal-burning plants.

Utilities in the United States have been responding to market forces and (to a lesser extent) environmental concerns, and have been transitioning from the use of coal as an energy source in favor of natural gas and various renewables. In the past few weeks, at least two utilities in Indiana have announced their intention to shut down coal generating plants.

One state utility–northern Indiana’s NIPSCO– predicts that the shift could save customers billions of dollars in coming decades. NIPSCO is one of the Indiana utilities that has announced its intent to significantly diminish its use of coal and substitute renewable resources.

Typically, utilities have made their own decisions about their energy use, but Soliday’s House Bill 1414 allows the state to override those decisions. (I thought Republicans wanted government to “get out of the way” of business–silly me!)

Keeping coal plants running comes with a huge cost, according to Citizens Action Coalition’s Kermit Olson.

If coal plants are not able to be retired and if they have to be maintained — as another part of the bill suggests — then those costs will be passed down to customers.

“The idea that we are trying to, as a state, to undo a utility like NIPSCO’s current business plan, which is based on economics and least costs of service to customers is just absurd if not downright unethical,” Olson said.

He is referring to NIPSCO’s planning process in the last few years that determined accelerating the closure of all its coal plants and a transition to renewable energy sources, particularly wind, would save its customers nearly $4 billion over a few decades.

The utilities oppose this bill. Environmentalists oppose this bill. Consumers get screwed by this bill. But yesterday, it emerged from committee.

Coal companies– unable to compete in the marketplace– are lobbying hard, hoping their friends in Indiana’s General Assembly will put a very heavy thumb on the policy scale….

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Corrupting The Judiciary

There is a bedrock principle of ethical behavior that requires avoiding conflicts of interest. If someone serves on a board or commission, for example, and a pending case has been brought by a relative or close friend,  we expect that person to recuse–to abstain from participation in the decision.

When the issue is judicial behavior, it is even more important to avoid even the appearance of bias or impropriety, because the legitimacy and effectiveness of the judicial system depends upon public confidence in the probity and disinterestedness of judges.

One of the (multitude of) problems with Trump’s nomination of unqualified judicial candidates that Mitch McConnell then rams through the confirmation process is that ethical behavior is one of the qualifications a number of them appear to lack.

A recent report originally penned by David Badash for The New Civil Rights Movement is a troubling example.

Legal experts are scratching their heads after a federal judge appointed by President Donald Trump announced on Tuesday he is delaying handing down his decision in a Trump tax returns case until other federal judges hand down their decisions in other Trump cases. That judge is a former Trump transition team volunteer and has donated to the Trump campaign.

District Judge Trevor McFadden of the U.S. District Court for the District of Columbia announced he will hold up his ruling in a case brought by the House Ways and Means Committee against the U.S. Treasury Dept. The case involves gaining access to six years of Trump’s tax returns. The law clearly says the IRS “shall” hand them over to Congress. The Trump administration says Congress has no right to investigate.

This is not a case where legal or factual complexities require time-consuming analysis. This is a case in which a judge has a blatant conflict of interest, and should have recused himself.

Judge McFadden has already exhibited bias in his handling of the case, which was originally brought last  August. According to Politico, he denied House Democrats’ request to expedite consideration of the case as well as their request to rule on its merits, despite the fact that this would seem to be a textbook case for summary judgment.

Now, he has informed the parties that he will not rule on the matter until the court that is considering a challenge to the subpoena of former White House lawyer Don McGahn has ruled. He has not offered an explanation for that delay, nor indicated what the McGahn case has to do with the litigation before him–undoubtedly because (as lawyers and legal commentators have noted) there is simply no connection between the issues in the two cases.

The only explanation that makes sense is that Judge McFadden is trying to help the President avoid disclosure of his taxes. Since the law is clear and unambiguous– a ruling in favor of Trump would be a too-obvious gift to a favored litigant–he is apparently trying to avoid ruling at all until after the election.

The Executive Editor of Above the Law summed it up as a “Trump judge trying to look for a way to prop up Trump’s terrible arguments without looking like he’s a Trump judge.”

It is no longer possible to ignore the fact that Trump, Barr, Pence, Pompeo and others in the administration are deeply corrupt. We are just beginning to realize just how much Trump’s terrible judicial choices have added to the rot and corruption.

And according to the Washington Post, one in every four circuit court judges is now a Trump appointee …

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What Pictures Do And Don’t Tell Us

As we head into what promises (threatens?) to be a pivotal year for American democratic governance, we do so in an environment unlike any that we have previously occupied. The “disinformation” industry has really come into its own over the past several years–filling the void that has been created by the near-demise of local journalism, and taking advantage of the enormous influence of social media.

The most recent weapons against facts and accuracy are visual: “deep fakes” in which the alterations are nearly impossible to detect. The influence of those fabrications on people who have lived in a world where “seeing is believing” is difficult to predict.

In a recent article from Axios Future, philosophers considered the challenge presented by deep fakes.

One possibility they considered: Technology might “erode the evidentiary value of video and audio” with the result that we begin seeing them the way we now see drawings or paintings —  rather than as factual records. In that case, all bets are off.

As the article put it,

Normally, when you receive new information, you decide whether or not to believe it in part based on how much you trust the person telling you.

“But there are cases where evidence for something is so strong that it overrides these social effects,” says Cailin O’Connor, a philosopher at UC Irvine. For decades, those cases have included video and audio evidence.

These recordings have been “backstops,” Rini says. But we’re hurtling toward a crisis that could quickly erode our ability to rely on them, leaving us leaning only on the reputation of the messenger.

One huge implication is that people may be less likely to avoid bad behavior if they know they can later disavow a recording of their mischief.

Just think how technological advances in deep fakes can affect political campaigns.

Just in time for the presidential election, the Brookings Institution shares news about a new technique for making deep fakes, invented by Israeli researchers.  It creates highly realistic videos by substituting the face of another individual for the person who is really speaking.

Unlike previous methods, this one works on any two people without extensive, iterated focus on their faces, cutting hours or even days from previous deepfake processes without the need for expensive hardware. Because the Israeli researchers have released their model publicly—a move they justify as essential for defense against it—the proliferation of this cheap and easy deep fake technology appears inevitable.

Can videos of Joe Biden using the “n word” or Bernie Sanders vowing fidelity to communism be far behind? As the Brookings article notes,

If AI is reaching the point where it will be virtually impossible to detect audio and video representations of people saying things they never said (and even doing things they never did), seeing will no longer be believing, and we will have to decide for ourselves—without reliable evidence—whom or what to believe. Worse, candidates will be able to dismiss accurate but embarrassing representations of what they say are fakes, an evasion that will be hard to disprove.

In our incredibly polarized political environment, the temptation to “cherry pick” information–to give in to the very human impulse to engage in confirmation bias–is already strong. We are rapidly approaching a time when technology will be able to hand partisans a plausible reason to disbelieve inconvenient news about a preferred candidate, while giving others desired “evidence” about an opponent’s flaws.

We can also predict that a political party willing to employ gerrymandering, vote suppression and a wide variety of political “dirty tricks” will not hesitate to use these tools.

Uncharted territory, indeed…..

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An Immodest “Modest Proposal”

Talk about “thinking outside the box”!

Ever since the 2016 election, there has been increasing concern voiced about the blatantly undemocratic aspects of American governance–the Electoral College, of course, and the enormous impact of money in politics–but also the fact that the “majority” party in control of the Senate represents about fifteen million fewer people than the “minority” party.

Changing these inequities through the constitutional amendment process would be a fool’s errand. Given the political environment, and the difficulty of the process, it ain’t gonna happen.

We could work around the need for constitutional changes, however, if we followed the advice of a recent article in the Harvard Law Review. As Vox explains,

An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

The Constitution provides for the admission of new states through an ordinary act of Congress requiring a simple majority vote. If it weren’t for a different provision–one that prevents new states from being “carved out” of existing ones unless the legislature of the existing state consents– we might just root for the folks who are trying to divide California into three states.

Since it’s unlikely that California’s legislature– or that of any other state–would agree to be split, the alternative is to chop up the District of Columbia. That gets around the constitutional problem because Washington, DC, isn’t a state.

Similarly, the Constitution effectively prohibits amendments that eliminate Senate malapportionment. The Harvard note proposes getting around this problem by transferring the Senate’s powers to another body. “The Senate’s duties,” it argues, “could be changed without modifying its composition.

Details aside, however, the wild thing about this Harvard Law Review proposal is that it is absolutely, 100 percent constitutional. The Constitution provides that “new states may be admitted by the Congress into this union,” but it places no limits on the size of a state either in terms of population or in terms of physical space.

It turns out that there is a long and ignoble history of partisans admitting new states in order to give their party an added advantage in the Senate. Vox notes that In 1864, Republicans admitted Nevada — at the time a desert wasteland with a few thousand residents — in order to give the GOP two extra Senate seats.

We have two Dakotas because those same Republicans celebrated their 1888 victory by dividing the Republican Dakota Territory into two states, in order to get four senators rather than two. And thanks to gerrymandering, each rural vote is worth 1 1/3 of each urban vote.

As the article concludes:

So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”

Just because we’ve always done it that way doesn’t mean it makes sense.

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