Tag Archives: Democracy

Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

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Assaulting Democracy

The warning signs are everywhere.

Governing Magazine has added to the evidence that America is losing even the pretense of democracy.

In the first several years after the Affordable Care Act (ACA) helped states make more low-income people eligible for Medicaid, it was only Democratic-led states that took the federal government up on its offer. Republicans have since warmed to the idea — but only on their own terms, and sometimes even if it means going against voters’ wishes…..

While some Republicans in Georgia, Oklahoma and Wyoming are exploring the possibility of Medicaid expansion in their states, Idaho and Utah are undoing ballot measures that voters passed in November to expand Medicaid.

In Utah, the Republican governor responded to the success of a ballot initiative expanding Medicaid by signing a bill that would only cover people earning up to the federal poverty line; it would also cap enrollment if costs exceed what’s expected.

But the terms of the ballot measure, which passed with 53 percent of the vote, were to expand Medicaid eligibility to people earning up to 138 percent of the federal poverty line.

Utah has to get federal approval of this law, and similar measures were not approved during the Obama administration. The Trump Administration, of course, is hostile to pretty much everything the federal government does, so it might very well allow what is a clear repudiation of the will of the voters in Utah.

It isn’t only Utah.

Idaho is also eyeing a rollback of its citizen-led Medicaid expansion ballot measure. The initiative won handily, with 61 percent of the vote….But legislation to void the initiative is currently making its way through the Idaho statehouse.

And many of you will recall that in 2016, Maine voters approved Medicaid expansion, but the state’s certifiable nut-case then-governor, Paul LePage, prevented it from taking effect.

Whatever one’s position on Medicaid expansion, these are truly breathtaking examples of legislative and administrative chutzpah. The citizens of these states voted on an issue before them; in essence, they gave instructions to the people who are presumably in office to represent them. And those people simply ignored them.

This is not unlike Trump’s decision to declare an “emergency” that would allow him to defy a Congressional vote. Even if a member of Congress believes the wall should be built, he or she should be appalled by a Presidential action that strikes at the very heart of the Constitution’s separation of powers. It ignores as irrelevant the constitutional provision that vests decisions about spending in Congress, a provision that–before now–has constrained lawmakers and administrators alike.

Congress said no. That should have been the end of it. The President’s “emergency” is not only bogus, it ignores the clear division of authority mandated by the nation’s charter.

Yet every single Indiana Republican Representative voted against the House Resolution to reverse that dangerous attack on a fundamental element of American governance, placing the interests of their political party above both the good of the country and fidelity to their oaths of office.

Without the rule of law–without lawmakers and public officials who are willing to accept the decisions of voters whether they like those decisions or not; without lawmakers who are willing to insist upon compliance with the Constitution even when it is their party that is breaking the rules–we don’t have a democracy or a republic or even a legitimate government.

We have a banana republic.

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They Aren’t Even Pretending Anymore

For the past several years, political scientists and pundits have published articles bemoaning the erosion of democracy and democratic norms, and Americans who follow government and politics have nodded in measured agreement.

I say “measured” because we still retain the trappings of democracy–campaigns, elections, the free press that so annoys Donald Trump. But this year, we are coming face-to-face with a reality we’ve been avoiding: our elections are mostly a sham, and legislators–who haven’t felt the need to reflect the will of those who voted for them for quite some time–no longer are bothering even  to pretend that they are “representative.”

David Leonhardt has noticed.

In November, the people of Utah voted to provide health insurance for about 150,000 state residents who lacked it. Last week, Utah’s legislators overruled their own constituents and took away insurance from about 60,000 of those 150,000 people.

The legislators claimedthey were trying to save money, but that’s not a credible rationale: The federal government would have covered the bulk of the cost. The true reason — which the legislators weren’t willing to admit publicly — was a philosophical objection to government-provided health insurance.

Utah’s turnabout is the latest worrisome exampleof politicians rejecting the will of voters.

The offending politicians have been mostly Republican, as they are in Utah. “You see a rising, disturbing trend here of equivocation, if not worse, in the commitment to democratic norms on the part of a growing number of Republicans,” Larry Diamond, a Stanford University democracy expert, told my colleague Ian Prasad Philbrick. “Is this what the Republican Party wants to be? The anti-democracy party?”

Leonhardt provides examples from Idaho, Maine and Michigan, and notes that, In Missouri,  legislators are attempting to subvert a ballot initiative that would reduce gerrymandering.

In Utah, the legislature partly overturned a new law allowing medical marijuana.

These examples involved lawmakers ignoring the results of state referenda. Indiana doesn’t allow referenda, but our lawmakers have been equally willing to ignore the clear wishes of their voters.

This year, both the Indiana and Indianapolis Chambers of Commerce have made passage of bias crimes legislation a priority. Business and civic leaders throughout the state formed an organization, Forward Indiana, to support the bias crimes bill. The governor has asked the legislature to pass it. In a poll of Hoosiers on the issue, 84 percent of Democrats, 75 percent of independents, and 63 percent of Republicans supported passage of a hate crimes bill focused on marginalized Hoosiers.

The Senate GOP eviscerated the measure, gutting the language that made it legally effective. All indications are that the House–which, like the Senate, has a Republican super-majority with a history of homophobia–will concur.

If Indiana lawmakers actually represented their constituents, passage would have been a no-brainer. But thanks to gerrymandering, Indiana lawmakers feel free to ignore the wishes of the public they ostensibly serve, and they do so with some regularity.

As Common Cause has explained, we have a system in which the legislators choose their voters rather than a truly democratic system in which voters choose legislators. And until that  changes, lawmakers will continue ignoring We the People.

Like the lawmakers in Utah and other states, they don’t even bother to pretend any more.

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The Right Problem

Sometimes, unrelated “factoids” converge to tell a story. Just in the past couple of weeks, I’ve come across stories that seemed initially to be unconnected, but come together to illustrate a troubling aspect of contemporary political life.

Factoid #1: Recent polls show that a third of Americans do not believe the Nazis killed six million Jews.Thirty-one percent of the Americans surveyed, and 41 percent of millennials within that group, do not believe that 6 million Jews were killed during the Holocaust and think the real death toll is at least 2 million lower. (Eleven percent said it is acceptable to hold neo-Nazi views.)

Factoid #2: An October poll by Axios found barely a majority of Americans affirming faith in democracy. Just 51% of Americans said they have faith in the country’s democracy, and 37% say they have lost faith in democracy.

Factoid #3: The people most apt to share “fake news“–to be taken in by conspiracy theories, spin and propaganda– aren’t defined by political ideology, but by age (although age does correlate with political philosophy). Research published by the journal Science Advances, found that older Americans — especially those over 65 — were much more likely to share fake news than younger ones, and conservatives and Republicans were more likely to share fake news than were liberals and Democrats.

There are several disheartening conclusions to be drawn from these disparate items. The most obvious is that Americans are woefully ignorant of history. Another is that the pace of social change has been most upsetting to older Americans, who find themselves attracted to “alternative facts” when their settled views are  challenged. Still another is that Americans are disappointed with the direction the nation is taking, and draw the conclusion that democracy hasn’t worked.

But beneath those fairly superficial conclusions, I think there is a state of bewilderment. As our media has fragmented, as the availability of widely-trusted news sources has diminished and the number of politicized, highly partisan outlets has increased,  thoughtful Americans–those who don’t automatically accept the spin from one “true believer” cult or another– no longer know what to believe.

Did you read that six million Jews were murdered? Well, maybe. Where did you read that?  Did you read that Trump lies constantly? Well, that was from the Washington Post; this article from Breitbart attributes the accusation to the Post’s “liberal bias.” I’m not sure who’s right.

An article for the Guardian profiled David Neiwert, who has written about the contribution of the alt-right to our current situation.

For several decades following the Great Depression, when capitalism and liberal democracy teetered on the brink, Republicans and Democrats “agreed to defend democracy, and defend the values of democracy because it benefited them all by following basically FDR’s program. Now, we’ve lost that because conservatives have decided they are no longer willing to submit to any kind of government run by liberals,” Neiwert says. “The current conservative movement has decided it no longer wishes to be part of a liberal democracy.”…

Neiwert has focused on the media environment.

In his 2009 book The Eliminationists, Neiwert explained how this post-9/11 authoritarianism was fuelled by increasingly lurid fantasies in conservative media of destroying liberals, Muslims and other perceived enemies. These bubbled away throughout the presidency of Barack Obama, himself the subject of endless conspiracy theorising. Trump, of course, became the principal pusher of the idea that Obama wasn’t born in the US. His subsequent presidential campaign was powered by authoritarian and conspiratorial fantasy. And so, Alt-America has its president.

But can the problems Neiwert points to actually be remedied? “I’m not optimistic,” he says. “I believe that we’ve dug ourselves a really deep hole and we have a really long way to dig up.” He believes that while Trump is likely to lose in 2020, the movement, and the party, that propelled him to power will continue to have a malign effect.

One important step to challenge this would be media reform. He says that the internet and corporate ownership of local media have “basically gutted the ability of local newspapers to cover local news, gutted the ability of larger newspapers to do consumer and investigative reporting”. Social media, a paradise for conspiracy theorists, is filling the gap.

Without trusted and trustworthy journalism,  reasonable citizens don’t know what they can believe, and that uncertainty paralyzes them.

Unreasonable citizens believe what they want to believe, and alt-right propagandists are happy to oblige.

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Transparency

Classes in public management routinely include lectures on the importance of transparency; after all, democratic processes depend upon the participation of informed voters, and–as yesterday’s post noted– being informed requires knowledge of what government is doing.

From that perspective, I suppose we might applaud news of the most recent survey from Transparency International.

Transparency International publishes an annual Corruption Index that ranks the world’s governments on their honesty. The United States didn’t do so well.

The U.S. has plummetedin an annual corruption index, falling out of the top 20 countries for the first time since 2011, watchdog Transparency International said in a new report that links the global erosion of democracy and tidal wave of autocrats to an uptick in graft.

“Corruption chips away at democracy to produce a vicious cycle, where corruption undermines democratic institutions and, in turn, weak institutions are less able to control corruption,” said Patricia Moreira, managing director of Transparency International (TI).

The Corruption Perceptions Index, which ranks 180 countries by their perceived levels of public sector corruption, found overall that the failure to control corruption is contributing to a “crisis of democracy around the world.”

It will probably not shock you to learn that the U.S. slipped four points since the election of Donald Trump. That’s the lowest score we have registered in seven years.

The low score comes at a time when the U.S. is experiencing threats to its system of checks and balances as well as an erosion of ethical norms at the highest levels of power,” according to TI.

President Donald Trump is a “symptom, not a cause,” Zoe Reiter, the watchdog’s acting representative to the U.S., told Reuters

“Conflict of interest wasn’t a new problem, but it was illuminated in its glory when you have someone who is basically breaking norms,” she said.

According to the Index, the least corrupt countries were Denmark and New Zealand; Western Europe and the European Union scored the highest by region.

The most obvious question raised by America’s declining honesty is: what are we going to do about it? The most obvious answer is: we’re going to begin by getting rid of Donald Trump and Mitch McConnell. As salutary as that would be–as much of an improvement their exit from public life would represent–that should only be a start. As Zoe Reiter has pointed out, they are symptoms.

There’s a reason we have rarely heard pundits and public figures use terms like “public servant” and “statesman” over the past couple of decades. The political figures worthy of those labels–in Indiana, the Richard Lugars and the Lee Hamiltons–have been replaced by ambitious empty suits who lack both gravitas and integrity (and frequently, intelligence) and who are unwilling to do the hard work needed to master policy areas.

Empty suits are much easier to corrupt. Hence America’s declining place on the Corruption Index.

The problem is, when politics becomes a dirty word, it’s much harder to recruit bright, idealistic young people to run for office.

We can only hope that the number of newcomers who ran and won in 2018 are a sign of renewed political interest among young citizens intent upon cleaning up what has become America’s disgraceful political sewer.

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