Another Constitutional Convention? Perish the Thought…

In mid-2014, I wrote a column for the IBJ in which I strongly disagreed with an effort by Indiana State Senator Long to have Indiana “sign on” to an effort to call a new Constitutional convention. (Unfortunately, Senator Long was successful in his effort to have Indiana do so.)

After I wrote my column, the issue receded from prominence–at least, it disappeared from news coverage. More recently, it has reappeared; we are, apparently, only 5 states short of convening such a convention, and a particularly ominous bit of news has emerged: the money behind this effort comes from ALEC and the Koch brothers, whose motives–to be kind about it– are unlikely to be supportive of the common good.

Here was my original argument:

Periodically, lawmakers impatient to change government policies of which they disapprove will call for a Constitutional Convention.

Fortunately, these efforts have yet to succeed.

Why “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

Activists clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and worldviews.

History suggests that’s a naive assumption.

Indiana Senator David Long wants the states to convene a new Constitutional Convention, at which delegates would devise “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.”

He claims the convention could be limited to consideration of those goals, but even if he is correct (and many constitutional scholars disagree) his “limited” goals are Pandora-box wide.

For example, Wall Street bankers argue that post-recession financial laws are “overregulation;” if polls are to be believed, most taxpayers view the new rules as barely adequate. Who wins?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; yours might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can name the three branches of government. Only 21% of high school seniors can list two privileges that United States citizens have that noncitizens don’t. Fewer than a quarter of the nation’s 12th graders are proficient in civics. I could go on—and on.

Even bright graduate students come into my classes with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Senator Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area have been truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Think about this: Last weekend, at the Indiana Republican convention, Richard Mourdock compared today’s America to Nazi Germany–and got enthusiastic applause.

Do we really want people like Richard Mourdock—or those who cheered his ahistorical and deeply offensive analogy—deciding how the American Constitution should be changed?

Furthermore, the Constitution already provides We the People with a handy remedy for unsatisfactory governance: it’s called elections.

We’re apparently too apathetic to use the tools we have.

I have no reason to revisit my original concerns about such a convention, but events since then have added several items to my list of “oh shit, what if’s.” I can only imagine what sorts of changes the extremely libertarian Koch brothers are hoping to make; add to that the delusions of the anti-journalism “Trumpers” who would undoubtedly participate, the proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christian bigotry), and a variety of other ideologues and know-nothings, and the prospects are genuinely terrifying.

Of course, we should remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking that there are no guarantees– such a convention might end up with participants who think it’s time to get rid of the Second Amendment and the Electoral College.

If 2018 is a “wave” election–if Democrats, rational Republicans and Independents come out in force to reject Donald Trump and those who have enabled him–such a convention might prove to be an unpleasant surprise to its current enthusiasts.

Either way, holding a Constitutional convention when the U.S. is embroiled in extremely toxic, uninformed and polarized politics is a really, really bad idea.

As I recall, the headline of my IBJ column was “An Idea Whose Time Has Definitely NOT Come.”

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Time to Fight Back With Everything We Have…

Much of the damage being done by the Trump Administration can be contained (thanks to the Administration’s rather awe-inspiring incompetence), or eventually repaired (when the GOP’s radical fever breaks). People will have been unnecessarily hurt in the meantime, true, but most of the harms can (and probably will) be addressed when (we can hope) cooler heads prevail.

There are only two exceptions to that comforting thought: war and environmental degradation.

If Trump becomes desperate to divert attention from his governing failures and falling poll numbers, the chances of his starting a war are not negligible. And his assault on the already inadequate measures meant to protect the planet from further environmental degradation–if at all effective–will delay efforts to mitigate climate change and result in a loss of time that we don’t have.

We have to hope that the Generals Trump so disdains can prevent him from starting a war; but Trump has already begun his environmental assault with a vengeance. As Politico reports,

In just 40 days, Trump has made it easier for coal miners to dump their waste into West Virginia streams, ordered the repeal of Clean Water Act protections for vast stretches of wetlands, proposed massive job cuts at the Environmental Protection Agency and prepared to begin revoking the Obama administration’s most ambitious climate change regulations.

Trump is also expected to overturn Barack Obama’s moratorium on new federal coal leases, and is considering automakers’ pleas for relief from a scheduled tightening of vehicle fuel-efficiency standards. Obama’s pledge to send billions of dollars to United Nations climate programs is also likely on the chopping block. And Trump hasn’t ruled out withdrawing the United States from the 200-nation Paris climate agreement, a step that could undercut the international effort to confront global warming.

The Politico article details a number of other actions Trump plans to take–including actions to roll back regulations that protect the nation’s air and water quality. He has already signed off on congressional repeals of some Obama-era regulations, including  Interior Department regulations that protect rivers and streams from coal mining pollution.

And this week, he ordered EPA to begin rewriting the Obama administration’s sweeping “Waters of the U.S.” rule, a move that green groups say could leave 60 percent of U.S. stream miles and 20 million acres of wetlands unprotected from development or pollution.

What makes this assault so senseless is that even people who stubbornly refuse to believe that climate change is real should want clean water and breathable air.

The only saving grace of this wholesale assault on science and common sense is that most of these orders won’t take instant effect. As the Politico article notes, it could take years for the EPA to undo the regulations, and the administration will face fierce legal challenges from environmental groups.

In the meantime…

It’s time for every lawyer who can spell “environment” to challenge the Administration’s actions. Executive Orders cannot unilaterally overrule laws that have been duly enacted. I don’t know enough about the processes of regulatory adoption to know whether such orders can revoke them without invoking substantive procedures, but it seems unlikely that rules adopted after lengthy hearings and expert testimony can be undone with the stroke of a denialist’s pen.

Of course, the President and the head of the EPA can simply decline to enforce existing laws and regulations, but that would seem to put businesses subject to the regulations in a very uncomfortable spot; they have a legal obligation to comply with existing rules, and there are probably non-EPA organizations and individuals who would have standing to sue enterprises that made a calculated decision to violate existing law.

In addition to “lawyering up,” every one of us who cares about the environment–or just wants clean air and water and a government that respects science and the rule of law–should contribute as generously as possible to environmental organizations (preferably those having a legal team).

And last but most certainly not least, every one of us has to begin now to organize for the 2018 elections. Find people to run against Trump-supporting incumbents–either rational Republicans to primary them from the left, Democrats to oppose them in the general election, or both. Register any unregistered person we can find, and make sure that person has identification sufficient to satisfy the relevant Voter ID laws. Get anyone who didn’t vote last November to the polls.

We need to change this feckless Congress as soon as humanly possible, because some kinds of damage can’t be fixed.

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Maybe No One In The White House Can Read?

News organizations, pundits and bloggers all continue to express their amazement at the number of bald-faced lies uttered by the current occupant of the Oval Office. And it is certainly baffling; after all, virtually all of these falsehoods are easily disproved. Why would someone who presumably wants to be taken seriously provide political opponents and the general public with constant evidence of his lack of credibility?

Every day brings a new example. In his address to Congress, Trump cited a study by the National Academy of Sciences; according to Trump, that study showed illegal immigration costs the country billions of dollars a year. The authors of that study immediately responded that it said no such thing.

As the chair of the panel of scientists convened to write that report and one of the consultants who analyzed the effect of immigration on government budgets, we can state unequivocally that this was not our conclusion. Our report looked at the evidence from all sides and found that the economic and fiscal consequences of immigration are generally positive, or at least not likely to be negative. How, then, can the report be used to argue the opposite?

As blatant as that mischaracterization is, it is of course nothing compared to Trump’s evidence-free accusation that President Obama had wire-tapped him–an accusation that has been debunked by the FBI, the Department of Justice and all of America’s intelligence agencies. But hey–what do they know. He saw it on Fox, so it must be true….

Observers have attributed this behavior to Trump’s obvious mental instability, and although that’s certainly plausible, I have another theory. I don’t think Trump or the people around him know how to read.

For example, immediately after he unveiled his proposed budget, his crack team sent out their  “Daily Update” to their email list, with a prominent link to the following article:

The Washington Post: “Trump’s budget makes perfect sense and will fix America, and I will tell you why”

I’m sure the geniuses who sent it out loved the headline; unfortunately, the article was a biting–and very effective– satire. The first two paragraphs should have given them a clue:

Some people are complaining that the budget proffered by the Trump administration, despite its wonderful macho-sounding name, is too vague and makes all sorts of cuts to needed programs in favor of increasing military spending by leaps and bounds. These people are wimps. Office of Management and Budget Director Mick Mulvaney has called it a “hard power budget” which is, I think, the name of an exercise program where you eat only what you can catch, pump up your guns and then punch the impoverished in the face. This, conveniently, is also what the budget does.

This budget will make America a lean, mean fighting machine with bulging, rippling muscles and not an ounce of fat. America has been weak and soft for too long. BUT HOW WILL I SURVIVE ON THIS BUDGET? you may be wondering. I AM A HUMAN CHILD, NOT A COSTLY FIGHTER JET. You may not survive, but that is because you are SOFT and WEAK, something this budget is designed to eliminate.

Or maybe it isn’t that they can’t read; maybe the Trump Administration really is the Gang That Couldn’t Shoot Straight.

On Friday evening, following the day’s earlier, humiliating defeat of the GOP’s  Obamacare “replacement,” advertisements praising several congressional Republicans for “keeping their promise” to replace the Affordable Care Act aired during national basketball games. Evidently, none of those “best people”with whom Trump has surrounded himself, thought to pull the  ads, which had obviously been prepared and scheduled beforehand.

This level of incompetence would be funny if our Buffoon-in-Chief didn’t have the nuclear codes…..

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Why Knowledge Actually Matters….

I’m constantly amazed by the number of Americans who look askance at candidates for public office if they have government experience and/or training– the voters who express their preference for electing “outsiders” who will not be “disadvantaged” by actually knowing how government works.

I’m pretty sure those same voters wouldn’t choose a doctor who had never been to medical school, or a mechanic who didn’t know where their car’s engine was located.

Doctrinaire libertarians and “small government” conservatives may be nostalgic for the days of the Vermont Town Hall meetings, but this country is not going to get rid of the agencies that inspect our food and drugs, ensure that airplanes don’t crash into each other, keep businesses from colluding to fix prices, corporations from lying to prospective shareholders, and more. (Nor–despite the fantasies of this Administration and the real harm it can do–are we going to get rid of environmental rules and regulations, enforcement of civil rights laws, or public schools.)

Voting in a “management team” that doesn’t understand what government agencies do or how they do it, a team that is unfamiliar with constitutional checks and balances, and ignorant of settled U.S. foreign policy, diplomatic norms, and the definition of the national interest is like asking the company janitor to assume control of a multi-national corporation.

Even if he was a really good janitor, it isn’t going to go well. If he was an unstable and intellectually limited janitor with very spotty cleaning skills , he’s going to do a lot of damage to the company.

A couple of examples may illustrate the problem.

During the Presidential campaign, Donald Trump confidently asserted that he would bring back jobs in the coal industry. He argued that “burdensome” regulatory activity–like keeping miners safe and coal ash out of Americans’ drinking water–had caused the industry’s declining employment.

But as this article and several others explain, what’s killing coal is the market, not regulation.

The U.S. coal industry basically imploded as Chinese demand slipped. Peabody Energy, Arch Coal, Alpha Natural Resources, Patriot Coal and Walter Energy have all filed for bankruptcy over the past two years. (Peabody Coal is nearing a plan to pull itself out of bankruptcy.) The number of people who work in coal has tanked, too. In 1985, the industry employed 177,000 people. At the end of 2008, that number fell to 86,000. It was at 56,000 by last year.

“The market is telling coal that it’s a dying fuel source because we have abundant supplies of natural gas that are indigenous to the country,” Pete Fontaine, a veteran environmental lawyer who works for fossil fuel companies, told HuffPost. “You can scrap rules that make coal mining more expensive, you can scrap the Clean Power Plan, but ultimately coal is on the way out.”

Over at Dispatches from the Culture Wars, Ed Brayton points to another example:

Like virtually every other environmental measure, Trump is trying to roll back the CAFE standards for efficient engines in cars and trucks, on the premise that such regulations increase the price of cars. But in reality, doing so would actually cost consumers more money.

Trump’s misguided move to appease the ever-myopic U.S. auto industry would undo efficiency gains that will provide consumers $98 billion in total net benefits, primarily from reduced fuel use. Individual car buyers would lose “a net savings of $1,650” (even after accounting for the higher vehicle cost) as the EPA concluded in its final January “Determination on the Appropriateness” of the standards.

The savings from the new standards are so significant that the EPA calculates “consumers who finance their vehicle with a 5-year loan would see payback within the first year.”

Rolling back the standards would also boost U.S. oil consumption by 1.2 billion gallons and increase U.S. carbon pollution by 540 billion tons over the lifetime of the model-year 2022–2025 cars.

When managers–private or public–don’t know what they don’t know, and are unwilling to educate themselves or consult people who do understand the way things work, they advocate “solutions” that make matters worse.

When experts are scorned as “elitists” and scores of knowledgable agency employees are told to pack their bags, what comes next won’t be pretty.

Isaac Asimov, the brilliant scientist and science-fiction author, said it best:

“There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.”

That cult of ignorance has given us an Administration that rejects science and subject-matter expertise in favor of conspiracy theories and authoritarian ideologies.

I wonder–if America survives this, what lessons–if any–will we learn?

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Interesting Parallels

History doesn’t really repeat itself, at least in the sense of “re-enactment,” but there are historical cycles with striking resemblances. We really can learn from history–if we are open to pondering its lessons.

Because I think the past can illuminate the present, I found this article by a Brookings Institution scholar fascinating.

Philip Wallach looked at various pieces of evidence offered by November’s elections–the electoral dominance of the GOP, followed by dissent and disarray, and asked whether America might be on the cusp of a realignment:

A month-and-a-half into Trump’s presidency, however, the tensions are looking more overwhelming than manageable. Internecine fights between Republicans, about both the party’s biggest priorities and the president’s unprecedented persona, erupt into headlines daily. And so we find ourselves wondering: could the GOP coalition be impossible to hold together? Might we be witnessing the beginnings of a serious partisan realignment, perhaps even the end of the long era of Democrats vs. Republicans in federal politics?

Wallach proceeded to analyze this question by comparing today’s political landscape to a “neglected chapter in American history”: the downfall of the Whig Party from its peak in 1848 (the year its outsider candidate won the presidency and gave Whigs effective control of American government), to 1856, when for all intents and purposes, the party no longer existed.

That period featured surging nativism, profound uncertainty for both major parties, and a striking number of rhymes with our current political moment. Then, as now, the issues that provided the traditional lines of contestation between the two major parties were losing potency while new divisions were taking their place.

Wallach proceeds to enumerate the schisms within the GOP that might well lead to that party’s disintegration–the various factions rejecting Paul Ryan’s healthcare “reform,” similar disputes over tax policies, deep disagreement with Trump’s populist policies on trade, and concern over what Wallach delicately refers to as Trump’s “preoccupations” and “personality.” He then turns to the Democrats.

Although the GOP’s troubles are more vivid just now, Democrats are in some ways in just as serious a predicament. Insurgent populists and establishment neoliberals are deeply suspicious of each other and divided on where the party’s future lies, as was made apparent by the bitter fight over the DNC chairmanship.

What internal conflicts ultimately fractured and dissolved the Whigs? The most important was slavery, but there were also deep divisions over prohibition and the rise of anti-Catholic nativism. There had been a major influx of Catholic immigrants, especially German and Irish, and the “native” Protestant Americans, who tended to be  Whig voters, accused these immigrants of “popery,” criticized their use of foreign languages, and decried their participation in “corrupt” urban political machines. (They also tended to drink demon alcohol.) A number of Whig politicians adopted virulently nativist positions as a way of energizing their base. (Sound familiar?)

Wallach identified a lack of leadership continuity as another reason the Whigs imploded:

As the party looked for a champion going into the presidential election of 1848, a majority of its members opted to put their trust in a man who had no political history in the party at all. General Zachary Taylor, hero of the Mexican War, seemed to be “a new Cincinnatus, a man who, like the revered Washington, stood above party.” There were even those who were enthusiastic about rebranding the party, abandoning the “Whig” label in favor of “Taylor Republicans.”

However, Taylor’s policies enraged a substantial number of Whig partisans, allowing the “Know Nothings” and others to step into the breach.

It is hard to exaggerate how rapid and widespread the expansion of Know-Nothingism was in the 1850s. Founded as the secret “Order of the Star-Spangled Banner” in 1849, Know-Nothings built up a vast hierarchical organization of lodges and established themselves as the dominant force in many parts of the country. Officeholders of both parties, but especially Whigs, found that their political fortunes depended on having themselves secretly inducted into the rapidly growing order. As long as Know-Nothings remained officially secret, they seemed to offer a kind of symbiotic relationship with the Whig Party rather than posing a direct threat. But members of the movement, active in both the North and South, soon desired a more public arm of their movement, leading to the founding of parties variously called “Native American,” “American,” or “American Union,” in 1854 and 1855.

I won’t belabor these parallels further (although I can’t resist comparing the Tea Party to the “Order of the Star-Spangled Banner”).

It may be that the American political structure–a structure that overwhelmingly privileges a two-party system– will end up saving both Republicans and Democrats in their present form, although not necessarily in their present, respective substances. But the parallels–and their implications– are worth pondering.

On the other hand, we may truly be in previously uncharted waters….

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