States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
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A Must Read

A friend who knew me many years ago when I was an active Republican recently sent me a link to an open letter written by political novelist Richard Patterson, to friends he identified as “mainstream Republicans whose mainstream has run dry.”

The letter is not one of those tiresome partisan screeds that we see–and will undoubtedly continue to see– throughout this (interminable) election season. He begins by acknowledging the reasons his friends disagree with both Clinton and Sanders, and the fact that the Democrats and their candidates are far from perfect.

But to compare the two parties at this time in our history is to indulge in false equivalency. For rationalizing the GOP’s pathology by responding with a partisan tit-for-tat is not adequate to the circumstances. The sins you perceive in Democrats are the usual ones — misguided policies, ill chosen means for dubious ends, and the normal complement of rhetorical dishonesty and political squalor. However mistaken you may find Clinton and Sanders on the issues, their debate is addressed to the world as it exists and therefore open to a sensible critique. The squalor to which the GOP has sunk, an alternate reality rooted in anger and mendacity, transcends mere differences in policy, threatening the country with profound, perhaps irreparable, damage.

This is not simply about Donald Trump. For Trump is not the result of forces which will come and go, but of a deterioration within the Republican Party that has been accelerating for years. The GOP has become a Frankenstein monster, assembled from dysfunction, demagoguery, myopia and myth, nurtured in a fever swamp where lies and hysteria kill off reason. Nothing better will arise until you help drive a stake through its heart.

In the remainder of the article, which really, really is worth reading in its entirety, Patterson traces the evolution (okay, devolution) of the GOP. He notes that his own Republican friends–like so many of my own– are not like the extremists who occupy that “fever swamp.”

Patterson documents the increasing rage of a GOP base that had been repeatedly promised an end to abortion, defeat of gay rights, and implicitly, the continued dominance of White Christian Males–only to see that none of it had been delivered. He then catalogues the response of the GOP establishment to that anger:

The GOP countenanced a race-based birtherism directed at our first black president, giving Donald Trump a political foothold. It nurtured xenophobia that targeted all Muslims at home and abroad. It pretended that illegal immigrants were poisoning our economy. It aped the mindless masters of talk radio and trafficked in conspiracy theories. It embraced Tea Party dead-enders who claimed that shutting down the government, at whatever cost, was the only answer.

In Congress, the party resolved to deny Obama reelection by grinding the legislative process to a halt, then blaming him for gridlock as if its tactics played no role. Political polarization polluted foreign-policy — as when all 300 Republicans in Congress turned the Iran deal into a political wedge issue, shunning the careful consideration it deserved in favor of shrill and simpleminded denunciations. In the world of the GOP, our many and complex problems had but one misbegotten cause: that Barack Obama was president.

So-called mainstream Republicans competed to fan the flames of outrage, poisoning political discourse. Typical was the establishment’s darling, Marco Rubio, who claimed that Obama was not simply wrong, but trying to destroy America as we know it. Republican politics became not faith-based, but hate-based.

There is much more. If you don’t read anything else today, click through and read Patterson’s letter in its entirety. Especially if–like me–you remember a much, much different, much more responsible, much saner GOP.

It’s Sunday. You have time.

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Baseball and Politics

Thursday night, my husband went with several other family members to the opening of the Indianapolis Indians’ baseball season. As he–and several media outlets–subsequently reported, Governor Pence also attended, and the announcement of his presence generated loud and emphatic boos from the assembled crowd.

That booing underlines a political lesson we might sum up as: live by social issues, die by social issues. (I may be “over-analyzing” this; if so, chalk it up to twenty years of teaching public administration.)

Here’s what I mean: When we elect people to administrative offices–mayor, governor, President–we rarely base our subsequent evaluations of their job performance on the efficiency or effectiveness of the agencies controlled by those offices. Ideally, of course, we would, but most of the time, we aren’t in a position to know whether the city issued improper drainage permits, or the state failed to enforce environmental standards, spent limited resources on frivolous lawsuits, etc.

Unless we are members of a constituency that is directly aware of or affected by administrative incompetence, we are unlikely to recognize it, so we generally don’t base our opinions or cast our votes on the basis of perceived management skills. We don’t even base our votes on candidates’ policy preferences–unless those policies implicate so-called “hot button” issues.

This dichotomy between the mundane, albeit important, administrative skills needed for effective governance and the passions that characterize disputes over social issues poses an under-appreciated  danger for culture warriors like Indiana’s Governor.

Run-of-the-mill administrative incompetence is unlikely to motivate widespread passionate opposition, no matter how damaging and/or costly poor governance may be.Over-the-top forays into the culture wars, however–especially when those highly-visible and clearly unconstitutional efforts can be shown to do real damage to the reputation and economy of the state–can generate significant public hostility, as we have recently seen in North Carolina, Mississippi and–of course–Indiana.

Voters and baseball fans don’t boo someone for poor management skills (even though that would warm the cockles of a public management professor’s heart). Voters do, however, feel strongly about arrogant ideologues who feel entitled to tell them how they should conduct their lives.

There’s a reason for all those “Pence Must Go” signs.

And for “boos” at the baseball game.

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The Crux of the Problem….

Yesterday’s discussion of trade agreements generated a number of thoughtful comments. As regular readers know, I rarely “weigh in” to the back-and-forth (for a number of reasons, not the least of which is that I have a day job), but I do want to focus in on an observation posted by Pete, because it describes an under-appreciated challenge of modernity that has increasingly been troubling me.

Pete said:

Trade agreements are very complex to even read and comprehend much less determine their impact over time on the greater good. I’m not sure why anyone would believe that they totally understand any of them based on advertising or even real news if you can find it.

That’s why I rely on other professionals like Drs and lawyers for their specialties and why I hope they rely on folks like me to keep wings from falling off airplanes.

It’s the most pernicious of modern myths that we are capable of understanding the intricacies of many many things including international trade.

It isn’t only complex trade agreements. It’s the increasing fragmentation and specialization that characterizes contemporary societies and modernity in general.

The problem, as Pete notes, is that none of us is a polymath capable of independently assessing the credibility of information about our modern environments: whether the airplane has been properly designed, the trade pact adequately protects our interests, the new medication is free of side effects, the scientists are accurately measuring climate change…We have no choice but to depend upon the informed, professional opinions of those who are expert in these various fields.

And right now, most of us don’t trust anyone. Worse, we don’t know how to determine who is expert and trustworthy.

There are a lot of reasons for our pervasive skepticism. Our current “wild west” information landscape is a major one: at the same time that media has made us aware of the myriad ways in which our public institutions have failed us (Enron, the “banksters,” the Catholic Church molestation scandals, major league sports dopers and “deflaters,” government officials…), that same media has itself morphed and fragmented, causing us to lose much of what used to be called the “journalism of verification.”

At the same time that we are positively marinating in “information”–much of it trivial and/or bogus– determining the credibility of that information and the identity and credentials of its source has become challenging if not impossible. We have “news” without context. Even reputable studies and surveys are cherry-picked and distorted. As a result, in areas where we do not possess the historical, scientific or technical knowledge to critically evaluate what we read or hear–which for most of us, is most areas–we simply choose to believe sources that confirm our pre-existing biases.

Even when Pete’s plane flies and the wings don’t fall off, a sizable percentage of us will choose to believe reports that it crashed.

In our internet age, with both information and misinformation ubiquitous, the challenge is to combat propaganda and spin without doing damage to the First Amendment–and to build and monitor trustworthy social institutions and a credible and trusted media. That will require–at the very least–a vastly improved public education system that equips citizens to evaluate the credibility of information sources, and the emergence of a rigorous and ethical journalism.

We don’t seem very committed to either task.

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Beyond the Bumper Stickers

“It’s more complicated than that” is a sentence I probably mutter in my sleep. (My students  think I repeat it on a daily basis, sort of like a mantra.)

In a New York Times op-ed a couple of weeks ago, Miriam Sapiro, who was a deputy U.S. trade representative from 2009 to 2014, addressed one of the many subjects that is more complicated than either free-trade purists or knee-jerk opponents of markets understand, in “What Trump and Sanders Get Wrong About Free Trade.”

After noting that the United States enjoys a 200 billion dollar trade surplus, she points out that unless we continue working to pry open foreign markets for American goods and services, we will have a hard time creating more jobs: Nearly all of the world’s population lives outside our borders.

The Department of Commerce estimates that every increase of $1 billion in exports sustains nearly 6,000 jobs, and that export-related jobs pay on average 18 percent more than jobs focused on the domestic market.

We Americans have an unfortunate tendency toward “either/or” arguments. Trade is good or bad. We are for it or against it. But this is one of those areas in which the question is not–or should not be–yes or no, but how. What distinguishes a good trade agreement from a bad one? How do we ensure an equal playing field? If domestic manufacturers have to abide by rules protecting the environment and ensuring fair labor practices, for example, other parties to these agreements should be bound by similar constraints. All trade agreements are not equal.

And we need to recognize that there are multiple causes of our economic problems.

Rather than blaming international trade for economic woes, we need to have an honest conversation about what the United States must do to strengthen its economy. More than 20 percent of American children today live in poverty. Our educational system, once the envy of the world, now ranks in the bottom half of much of the developed world. The tax system rewards companies that exploit loopholes, infrastructure is crumbling and training programs lack the kind of apprenticeship and credentialing opportunities that Germany and other major economies offer…
Of course it is easier to score points by denouncing trade than to tackle the tough issues, but such demagogy ignores the roots of economic insecurity and inequality.

It’s handy to have a villain to identify, but the emotional satisfaction of identifying someone or some thing as the “bad guy” rarely translates into a solution to the problem at hand.

It is also a mistake to think that positions on trade policy break down along neat party lines. As we learn from Political Animal, 

U.S. Conference of Mayors (which is overwhelmingly Democratic), endorsed TPP. The reason, as Ron Brownstein pointed out, is clear.

New data released May 13 by the Brookings Institution’s Metropolitan Policy Program helps explain the mayors’ tilt toward trade…Brookings found that fully 86 percent of U.S. exports now originate from urban areas. Moreover, exports drove more than one-quarter of all metro area economic growth from 2009-2014.

I think it was H.L. Mencken who said “For every complex problem there is an answer that is clear, simple, and wrong.”

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