Thursday, February 4, 2016

Otto v. Wright County: Why the Legislature and the Counties Should Lose

On February 4, the attorneys representing Minnesota State Auditor Rebecca Otto filed suit contending that the State Legislature’s law allowing counties to secure private audits instead of using her office violated the State Constitution.  In her complaint she alleges that the law essentially privatizing audit functions violated the state constitution in two ways: Either it was a separation of powers violation stripping her office of its “core state functions,” or the legislation violated the constitutional single-subject rule in that it was tied together in a law that did a host of other interrelated things.
The Auditor’s arguments parallel the claims I made in a June 8, 2015 Minnpost op-ed of mine.  There my focus mostly was on the separation of powers claim.  I have enclosed the original piece below.  (Please note:  I have taught state constitutional law since 1992).
The Auditor’s complaint builds upon my state case law arguments by emphasizing the historical role of the auditor back to the territorial era in performing audit functions.  This type of argument, while not dispositive, adds a strong argument suggesting that when the Minnesota Constitution was drafted its Framers original intent was to give the State Auditor core constitutional functions that included the type of auditing at dispute in this case.   Though this complaint does not make it, one can also cite case law from other states to reinforce this type of constitutional argument.
The more second single subject argument is smart.  It builds off of state case law declaring legislation shall embrace a single subject.  In cases such as Associated Builders and Contractors v. the Honorable Jesse Ventura the Minnesota Supreme Court has taken an increasingly hard line against allowing the legislature to create bills that cobble together an unrelated collection of provisions.  Other states too have single subject rules and courts across the country have ruled that the purpose of these constitutional provisions is to prevent the type of legislative shenanigans that was evident with this bill.
While former Minnesota Supreme Court Justices such as Paul Anderson have argued that the single subject rule should require the entire law to be stricken, a majority of the Court has not said that.  Why is this significant?  If the Minnesota Supreme Court wants to avoid a constitutional confrontation between the Auditor and the Legislature they can use the single subject rule simply to strike down that provision, thereby avoiding the issue of whether the Legislature actually over-reached in its privatization.
Here is my original Minnpost op-ed.

Resolution of the budget standoff in Minnesota has come down to the status of legislation that guts the state auditor’s office. Whatever the final resolution of this dispute, one thing is clear: The legislation is foolhardy and probably violates the Minnesota Constitution.

The state auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately. It is an important position in the state that promotes accountability to ensure that tax dollars are spent the way they should be. Yet the Legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms. The governor signed this bill, but now seems to want the Legislature to undo this.

The governor should never have signed a bill that allowed for this. Nothing against private auditors, but this is a duty for the state auditor. The privatization will cost taxpayers more in the long run – as is typically the case with many privatizations. I pointed this out in a MinnPost op-ed back in 2011.


Conflicts with two articles in the Constitution
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned – the provision is probably unconstitutional, conflicting with both Article V, section 1 of the Constitution creating the office of the auditor, and Article III, section 1, the separation of powers clause of the Constitution.

There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers. One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). In that case, at issue was a 1985 law enacted by the Legislature, in special session, which transferred most of the responsibilities of the state treasurer, an executive officer, to the commissioner of finance. The reason for the transfer of responsibility was that the treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties. The Supreme Court rejected this transfer of duties.

The court reasoned that even though the duties of the treasurer were prescribed by the Legislature, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.” One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.

Other Minnesota cases have reinforced that point. In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding child support giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause. The Supreme Court said yes, arguing that the transfer of power violated separation of powers. In supporting its decision, the court referred to precedents and decisions in other states reaching the same conclusion.

More separation of powers rulings
In State v. Baker the Minnesota Supreme Court voided a state-enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12-person jury trial. Here the court said that the law sought to redefine crimes to avoid the constitutional mandate. In State ex rel Birkland v. Christianson, the court declared that the Legislature cannot change form of government which would change separation of powers. In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the Legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.

Similar conclusions were reached regarding separation of powers and constitution in clerk of court's compensation for Lyon County v. Lyon County Commissioners. Other state courts have reached similar conclusions regarding separation of powers and legislative efforts to strip constitutional offices of their powers.

The constitutionality of the legislation to privatize some of the auditor’s functions resides in how far the Legislature may act to prescribe the functions of that office. This issue must be considered in light of the question: To what extent does this law impede the core duties of the auditor? Given past precedent, there is good reason to conclude that this privatization is unconstitutional and in a lawsuit the auditor would likely prevail.

Wednesday, February 3, 2016

An Historic Epic Blog About the Iowa Caucuses that will Amaze You, Blow Your Mind, and Make You Drop Your Jaw

Actually no, this blog displays none of these characteristics or adjectives.  Yet looking at social and mainstream media postings since the Iowa caucuses one would think that every posting or idea drooled out by anyone to describe what happened on Monday was historic, epic, amazed you, blew your mind, and made your jaw drop.  Frankly, none of this is true and in many ways what happened in Iowa on Monday and afterwards is or was relatively mundane and predictable.  So how do we understand the Iowa caucuses–who won or lost–and what will happen now or next?

The Iowa Caucuses are about three things: the expectation game, raw numbers, and then the spin.  It almost does not matter how well you really did, it is about whether you met expectations or not.  Do better than expected you are winner, worse than expected a loser.  The real number counts or delegate counts seem unimportant.  Momentum or spin from Iowa is based on the expectations game.  Thus, Iowa is about also being a form of musical chairs or a variation of the television show the Bachelor–it is the start of an elimination game that thins the heard until there is a winner.  For Democrats, the Iowa winner goes on to win the party nomination 2/3s the time, for Republicans it is 60% of the time.  Iowa is important and predictive, but not necessarily determinative and certain  in terms of what its results say.

In terms of the expectations, based on the latest polls before the caucus Trump should have won with Cruz second and Rubio a distant third.  Trump did not meet expectations with his results and is declared the big loser.  Of course the real losers are all those other Republicans who finished near the bottom of the heap next to the asterisk zone–including Bush, Santorium, Paul, and Huckabee.  The latter three have no dropped out, Bush might need to do so soon.  He spent $80,000,000+ to get 4,000 votes–approximately $20,000 per vote.  I am sure his supporters would have preferred the cash instead.

Yet Trump’s second place performance could be seen all along.  Many of us said that his challenge was translating his media presence and name recognition  into real numbers when he had no ground game.  His second place performance and Cruz’s first place show the power of the ground game.  Yet Trump’s second place finish still demonstrates how well he did without spending much time working on getting out the vote.  In some ways he did better than he should have given his strategy.   Of course, Trump reacted badly to his loss, crying foul, and showing to a large extent that his main rationale for the presidency–he is leading in the polls–may be crumbling under him.  Yes he still leads in New Hampshire and nationally, yet now there is reason to think he is vulnerable.  Despite winning almost as many delegates as Cruz, he is seen as a loser and the media and spinners are treating him as such.

For the Democrats the two most recent polls before Monday had Clinton up by three and Sanders up by three, with margins of error approximately 3.5%.  The race was a statistical dead heat.  Clinton supporters spin it as a historic win for Clinton but given her 50 point lead six months ago, that she was challenged by someone who is not a Democrat and who declares himself a socialist, winning by three-tenths of one percent of the vote is not much of victory.  If this were a general election this margin would trigger an automatic recount before it would have been certified by a canvassing board.  As we know in Minnesota from the Franken Coleman 2008 race, election night counts are not final or accurate and are readjusted several times before declared final and valid. Additionally, as we saw with Romney and Santorium in 2012, the former was originally declared the winner only to have the latter prevail later on when the votes were finally adjusted.  Monday is  perhaps a win for Clinton, but it does reveal powerful weaknesses in her candidacy especially among younger voters.

For Sanders, it was a good showing. Again, don’t say historic.  Just because something  happens once does not make it historic.  For something to be historic it has to stand the test of history.  In six months Iowa may mean little or nothing or something completely different than what people think it means now.  For now Sanders either tied Clinton or came in a close second, winning almost the same number of delegates. He raised millions after the Iowa Caucuses and he heads into New Hampshire where he is favored. Yes, part of his advantage in that state is the close media market to Vermont, but no folks, NH is not a liberal state.  It is a political swing state that elects lots of Republicans.  It is not necessarily a natural home for Sanders.  Moreover, remember Clinton won it eight years ago after losing to Obama in Iowa.  Both Clinton and Sanders have lots to spin at this point, but in may ways Sanders comes out this week looking stronger for now

Certainly Clinton and her supporters point to polls regarding her firewalls in Nevada but more importantly South Carolina, but polls today cannot necessarily tell us what will happen in those two states in several weeks.  Those who say Clinton has a lock on voters of color need to understand that it is not an issue of her getting all their votes and Sanders none.  The same is true with Sanders and Clinton when it comes to young voters, or liberals, or women.  The issue is  how well each does in terms of holding and mobilizing their bases compared to one another.

So what do we learn from Iowa? Perhaps far less than we think and which should shock.  Trump, Cruz, Rubio, Clinton, and Sanders can point to expectations, real numbers, and spin all to support their arguments about the significance of Monday. We are at the beginning of perhaps a very long process where many things can change, including polls, public opinion, and a score of other variables that may impact the 2016 elections. But none of what happened Monday necessarily has or  will rise to the level of something that is historic and epic, that will amaze you, blow your mind, and make you drop your jaw.  To assert any of this is just trivializing hype and  should be treated as such.

Saturday, January 30, 2016

American Presidential Politics on the Eve of the 2016 Iowa Caucuses

With the Iowa Caucuses finally here, this is a good time to offer a few thoughts on their significance and the American presidential race this year.

Why Iowa?
I tell my doctoral students writing dissertations that oftentimes one does not have to be right, just first.  That is the story of Iowa.  By all accounts if one were going to pick a first state to start the US presidential selection process, Iowa would not be it.  It is a state hardly representative of the nation–too white, too rural and agricultural, and too small a population.  Its is over-representative in religious conservatives compared to the rest of the nation, and with a caucus system it brings out a very small percentage of the population that even might not be representative of the national let along the Iowa Democratic and Republican parties.  But none of that matters–it is first and it does have a major impact on the presidential election.
Its impact is twofold.  First it eliminates candidates who do poorly—think Howard Dean in 2004.  It does that by drying up money and media attention.  But the Iowa Caucuses also can help presidential campaigns by declaring winners and those doing better than expected getting boasts.   The Democrats have been holding the Iowa caucuses since 1972 (11 total) and 8 of the winners there have gone to win the party nomination (66%).  The Republicans have held caucuses there since 1976 (10 total), and 6 of winners (60%) have gone on to win the nomination.  Overall, 14 of 21 winners (66%) have gone on to win their party’s nomination, with seven of the winners of the caucuses winning the presidency.


Year Iowa Dem Winner Dem Party Nominee Iowa GOP Winner GOP  Party Nominee President
1972 Muskie McGovern Nixon Nixon
1976 Carter Carter Ford Ford Carter
1980 Carter Carter Reagan Reagan Reagan
1984 Mondale Mondale Reagan Reagan Reagan
1988 Gephardt Dukakis Dole Bush Bush
1992 Harkin Clinton Bush Bush Clinton
1996 Clinton Clinton Dole Dole Clinton
2000 Gore Gore Bush Bush Bush
2004 Kerry Kerry Bush Bush Bush
2008 Obama Obama Huckabee McCain Obama
2012 Obama Obama Santorium Romney Obama



Life is About Showing Up
The caucuses are all about turnout, proving the adage that 90% (if not more) of life and politics  is showing up. To participate caucus attendees must register in advance with a party or they can do that at the door.  This is effectively day of caucus registration, making it difficult to predict turnout because of the possibility of individuals not previously registered (or predicted by the polls) deciding to attend.  In 2008 239,000 Democrats and 120,000 Republicans turned out. In 2012 it was 25,000 (Obama unopposed) and 122,000 respectively.
Turnout is important because the question for 2016 is will the turnout be closer to the 2008 number (360,000) total or 2012 (147,000 total).  Turnout is key for Sanders and Trump.  For both to win they must generate numbers closer to the 2008 level.  This would mean the Millennials, independents, and swing voters go for Sanders and the non-college blue collar (among others) show up for Trump.  What will be tested on February 1, is the ability to translate pep rallies and media persona into get out the vote and actually showing up at the caucuses.

Who Lost the White Working Class?
Much has been written about why the Democrats lost the white working class voter to the  Republicans?  This is an issue again this year because of a great piece in the NY Times recently describing how union leaders are fretting that their rank and file might bolt to Trump if he were to get the nomination.  This split in the labor vote would be a disaster for the Democratic nominee.
Lyndon Johnson declared the signing of the 1964 Civil rights Act cost the Democrats the south and the white vote.  The Edsells’ Chain Reaction says the same thing.  Ronald Reagan pealed off the Reagan Democrats by talking muscular and opposing affirmative action.  All possibilities.  But Bill Clinton did further damage by supporting NAFTA and blowing off working class America, especially the unions.  Obama did that too with his race and his failure to address the economic hardships of white working class America who saw him continue to bail out the banks and not the home owners, and do little to address the loss of manufacturing jobs.  Granted the Republicans too have done next to nothing to help white working class.   But with neither the Democrats or Republicans having done anything to help white working class, this group of voters has been receptive to the claim that they are losing out because people of color are being helped.  Yes, this is the racial card and for 40 years it has helped the Republicans, and Trump is again playing it.

Defining Inclusive
I read the other day about a woman saying she loved Clinton because she was more inclusive than Sanders.  Her reference was the Clinton ads showing people of color and Sanders mostly whites.  What we see here are contrasting definitions of what it means to be inclusive.
In 2016 Sanders is appealing to many of the white working class again.  The political messages and coalitions of Sanders and Clinton display two different concepts of inclusivity–For Sanders class is the inclusive group to unite America, for Clinton it is gender and race.  We see here a battle between rival concepts of how to unite America.  Moreover, as we think about their coalitions, it is important to remember that neither Clinton nor Sanders is winning 100% of their groups.  Both are winning some women, liberals, and people of color.  The issue is about marginals and how will each does to hold their own bases, eat into the other’s, and mobilize new voters.  This too is what we shall learn on February 1.

The Media
Finally what is also surprising is how the institutional mainstream media has lined up for Clinton and against Sanders.  The mainstream media however is perplexed by Trump v Cruz, opting to give Rubio its favored treatment yet also liking Trump for the ratings he produces.  None of this is a surprise.  Remember, Sanders is not a traditional Democrat and he talks about issues that have not be part of the mainstream in years, if ever.  In the last week the social and traditional media have piled on to criticize Sanders, often unfairly.  For example, there is heavy criticism of his healthcare plan (and there is room to criticize all of the plans by all the candidates) but the idea of national health care and single payer is the norm across many countries including Canada and it works very well.  To hear the media and critics, one would think Sanders is the first to come up with this idea and that it is unworkable.
There has also been a media blackout of Sanders in the US, at least until recently, and a continued refusal to treat him as a serous candidate.  How will the media report the results on Iowa for Tuesday?  Will it be Sanders lost and he is done(if he does), or that a socialist almost beat Clinton (proving her vulnerable), or that he won and it was a fluke?  For Trump, does a win legitimize his campaign or does a second place mean that he lost and that it demonstrates he has no ground game?  How the media and the candidates spin Monday is even more important that actually what happens.   This is part of why the Iowa Caucuses are so important, even though they should not be.  They are first and they get to decide how the next stage of the 2016 presidential campaign will be framed.

Monday, January 25, 2016

The Death of Thoughtfulness in Politics and Journalism

Whatever happened to thoughtfulness?  No, the reference is not “thoughtful” as in considerate toward others (although that it is an issue and a topic for a different essay), but thoughtful in the sense of thinking through issues, being mindful of subtle distinctions, considering opposing viewpoints, making truthful statements that are faithful to the facts, and eschewing dogmatic one-sided arguments?  Such thoughtfulness seems all but to have disappeared in politics, journalism, and among those making political arguments, especially in the social media.
Politics 2016 seems to be the year where all pretense of being thoughtful and truthful have been dropped.  Truth tests after the Republican debates, for example, find that Trump and Cruz consistently fail or rate as “liar, liar, pants on fire” when it comes to statements about immigration or their own records or positions.  We see other candidates in both parties outside of the debates distorting the records of both themselves and other candidates, and of course the SuperPacs and political ads they run simply lie.  The Courts have said there is a First Amendment right to lies, letting the political marketplace and voters decide truth. This marketplace of ideas has failed and with so many so skeptical about what candidates    Say is untrue none are believed.
But even if it is not outright lies it is making bold simplistic statements or policy proposals that just are not possible because either the empirical evidence suggests they will not work or they are not based on theories grounded in reality.  Yes there is a distinction between visions and hopes about the world one wants versus policy statements, but too often what one sees are one-sided statements that fail to consider objections or points from opposing view points.  Political rhetoric  is simply dogma and marketing hype, not serious policy discourse.
The death of thoughtfulness is evident too in the commercial media.  Tune into any talk show on Sunday morning–even ones with those speakers from different perspectives–and there is no thoughtfulness. Each speaker drools out a predictable point of view that is dogmatic and unreflective.  It bears no witness to opposing views, no subtlety.  The journalists on these shows are no better.  In fact, part of the problem with so much of commercial journalism is that it has given up on the idea of finding the truth–just report opposite partisan positions and call that news gathering.
The world is not black and white but it  is lived in shades of gray.  Solutions to America’s or world problems are not as simple as just send in the marines, cut taxes, or carpet bomb.  There are no silver bullets to fix the economy, bring about world peace, or eliminate poverty.  We live in a complex world with complex problems and understanding both and possible solutions require thoughtfulness about recognizing the limits of any one idea or policy proposal.
Yet simple-minded dogmatism is what sells.  Recently I attended a conference  of student college journals.  One of the speakers was a representative from a major media news service.  When one of the students asked how they could get more media attention for their journal the response from the news service was simple: Take a point of view and press it no matter what, even if extreme.  The advice was that to be successful you had to have a simple  clear perspective and argue it to the extreme.  It was not about being thoughtful or making clear careful distinctions–just take a position and advocate it, facts be damned.
Social media is perfect in terms of lacking thoughtfulness.  Partisans should advocate for their candidate, but seriously, not everything Sanders does is bad or what Clinton does is good or vice versa.  The same can be said about the Republicans.  None of these candidates are perfect or have the answers to everything.  Moreover, not every rumor need be reported and not everything a candidate does–or fails to do–is a cause for faux outrage. Social media is terrific for doing this, and for passing along half truths and claims that most people know or should know are just not accurate.  What social media has done is undermine its own credibility–when it is no longer possible for people to sort out the true from the false everything is doubted and nothing is believed.  This is what happened to mainstream commercial journalism and thereby destroyed its believe-ability.   The same is happening to the social media, thereby rendering its utility as a campaign or information gathering tool nil.
Finally, my political science profession is no better when it comes to a lot of analysis.  Rewards go to those who have singular methods and theories to look at the world, again rejecting the idea that how we study something is dictated by what we are studying.  Yes good theories should be simple, but they should also be accurate.
Thoughtfulness is out of fashion.  Thoughtfulness is not saying one needs to be a political  moderate or wishy-washy.  There are loony tune leftists and wingnut conservatives, but there are also those on all sides of the political spectrum who can be thoughtful and recognize the limits of their arguments or and reflect on what they and others are saying.  Unfortunately, thoughtfulness seems  unfashionable and certainly it does not seem to sell anymore.

Saturday, January 23, 2016

The Clinton Case Against Sanders: Or Why So Much Political Analysis and Argument is Awful

The national polls show a tightening race between Clinton and Sanders, with some surveys demonstrating the latter with slight leads in Iowa and a large one in New Hampshire.  The Washington Post reports a recent collapse in Clinton’s support more dramatic than in 2008. For some "plus ça change, plus c'est la même chose”; Clinton is repeating all of her mistakes in 2008 again in 2016 and Sanders will do to her now what Obama did in 2008.  Yet Clinton supporters rejoin and say that this time it is different, offering a series of arguments to show that Clinton is going to win no matter what and that the Sanders supporters should accept that reality.

Political Elitism
            There is a powerful dose of elitism and arrogance in this argument.  It is an argument made not just by Clinton supporters but also by the mainstream media and party establishment (for the Republicans too) who have vested interests in declaring winners and losers and in say that Trump, Cruz, and Sanders cannot win.  Claims about who can win are really empirical not rhetorical assertions.  By that, simply  declaring Clinton will win does not make it so.  Unless one assumes elections are rigged in the US, the purpose of campaigns and elections is to decide whether someone is electable.   Yet looking at the social media these days it is flooded with rhetorical claims about Clinton and Sanders.  Let’s take a look at the case for Clinton.
            The first rule of politics is that about the power of s compelling narrative.  It is a story that starts with a candidate telling why he or she is running for office and it includes their world view, what they hope to accomplish if elected.  The best narratives are positive, optimistic, and future-orientated.  Think of Reagan’s 1984 “Morning in America” commercial and Clinton’s use of the song “Don’t Stop Thinking about Tomorrow” as two classic examples.
            Clinton’s narrative is largely negative.  Yes she has articulated many positions and policy stances, but so much of Clinton’s (or her supporters’ and the mainstream media and political pundits) narrative for her candidacy is less about why she should be elected than to showing why Sanders cannot win.  There are several variations to argument.

Clinton Inevitability and Sanders Can't Win
            The first argument is the inevitability claim that first surfaced in 2008.  Maybe she Clinton will lose Iowa, or maybe Iowa and New Hampshire, but it is inevitable she will win.  She has more super delegates, or more people of color support her, or once we hit Super Tuesday things will be different.  Or Iowa and New Hampshire are perfect states for Sanders and after that the cards turn to favor Clinton.  Maybe.  There is no such thing as inevitable in politics.  Arguments on inevitability have repeatedly shown that as political campaigns evolve so do the underlying conditions that affect strategy and political support.   Inevitable assumes people do not gather more information, change their minds, or that campaigns make mistakes.  Inevitable assumes the status quo is permanent. Six months ago everyone thought Jeb Bush was inevitable. Six months ago no one thought Sanders could win Iowa or New Hampshire (although back in May I said it was entirely possible he could). Inevitability claims are often made by front runners to ward off challengers.  Variations of the inevitability argument are that Clinton has a fire wall with Super Tuesday.  Again, this assumes that early victories do not change media attention, affect future attitudes, or fund raising for example. 
            Still another more potent argument used is that Sanders is unelectable, especially because he is a self-described democratic socialist.  First, this is an empirical question that assumes that the past predicts the future.  By that, because no socialist has ever been elected president (and because of American hostility to socialism) Sanders cannot win.  This argument assumes that politics has not changed; it ignores that perhaps political attitudes have changed with a new electorate of Millennial  voters and disgruntled Democrats frustrated with a political-economic system that they perceive as unfair.  Saying Sanders cannot win is an elitist argument that declares that there is no point having elections and it rules out the possibility that he can win even before an election is held, or at least without offering any empirical evidence from this year to support that claim. If anything, recent polls suggest that Sanders is more electable vis-a-vis other Republicans than Clinton.
            Others will argue that if nominated Sanders will be red-baited or that he will be destroyed because so far he has not be well scrutinized, as has Clinton.  Some argue that the media has so well scrutinized Clinton that she cannot be damaged anymore but that Sanders is untested and who knows what will happen.  First, all this assumes that the attacks on Clinton will not persist or get worse.  Second, being an unknown has an advantage–one gets to mold or define one’s image.  Clinton is so well known that it is almost impossible for her to redefine herself.  Even independents know who she is and largely have made up their mind about her.  Sanders is a blank slate and has a the potential to define himself to voters who do not know who he is.
            Still another variation of the Clinton inevitability or Sanders can win argument is that the former has a lock on voters who are people of color.  Sanders can only win among whites.  Maybe.  Yes for the last 30 or so years identity politics has trumped class, but nothing says that this will continue to be the case this year. Remember when Republicans could not win working class whites and Reagan changed that?  Nothing again says that people cannot change their mind, that Sanders cannot reach out.  Again, declaring Sanders cannot win the votes of people of color is an empirical question that only a campaign can answer.

Sanders' Agenda is Unrealistic
            Beyond the inevitability argument a second basic thesis is that even if Sanders is elected his policy positions are dead on arrival or that Sanders does not understand how American politics works.  Clinton’s rationale is that she understands politics and has realistic proposals.  Realistically, does anyone think that any Democrat elected as president is going to move America beyond the current gridlock?  Obama did his best to appease Republicans, even adopting the Affordable Care Act (which was essentially a GOP idea), and where did that get him?   Obama was so appeasing that the point of compromise between him and the Republicans took almost all progressive ideas off the table.  Sanders would at least put progressive ideas on the negotiating table, perhaps defining a new point a compromise, or at least putting America in no worse of a position of gridlock that it currently is in now or would be with a Clinton presidency.
            Moreover, does anyone seriously think that Clinton will have an easier time working with Republicans than Sanders would?  It is well known how hated she is by the Republicans and while that animus is not an argument against electing her, it should give one pause to think about how easy it will be for her to get anything done. 
            Clinton’s claim to understanding politics also could be questioned. She failed miserably in passing health care reform in the 1990s and her Senate legislative record (bills that she actually introduced herself and not simply signed on to) is thin.  Conversely, Sanders in talking about the power of corporate America and Wall Street may well have a better grasp on how American politics works than many people give credit.  Finally, Clinton was a Senator and Secretary of State–wonderful accomplishments–but Sanders has been a mayor, member of the House of Representatives, and the US Senate–also very important experiences.

The Polls are Right and Wrong
            Finally, the last argument is about polls.  Initially the argument was that the polls showed Clinton with huge leads and therefore she was inevitable or Sanders could not win.  But now with tight polls the argument is that they are not reliable for many reasons, part of which may be that it is difficult to predict who will attend caucuses or primaries, or because right now voters are not paying that much attention.  All true, but as the Iowa and NH get closer that argument is harder to make.  Moreover, polls today are snapshots of the present not predictors of the future.  Maybe Clinton is leading in South Carolina today but in five weeks things could change. One cannot both invoke the polls to show why one will win in a few weeks and discount them at the present.  Polls are suggestive, not conclusive, and they should be understood as that.

Conclusion

            So much political argument and analysis  is simply awful.  The point here is not to say that either Clinton or Sanders can or cannot win. Instead, the argument is that much of what passes for political argument or analysis in 2016 is weak, logically inconsistent, or empirically  deficient.  The arguments make assumptions about the world that may or may not be the case.  They generalize improperly from past or present to the future, often making claims that may not be true.  Are either Clinton or Sanders electable?  The simple answer is we shall see, and that is the purpose of elections, to determine that.

Friday, January 15, 2016

Obama's Presidential Legacy: A Weakened Democratic Party and Timidity of Reform

Obama's final State of the Union speech was about his legacy.  While Obama has accomplished a lot–far more than often given credit and his speech detailed what he did–one of his great failings is his inability to restructure the Democratic party and build a new majority coalition to support his policies.  Instead, he leaves the Democratic Party far weaker now than when he was first elected, and his legacy more fragile and timid than it should be.
            Many saw Obama’s 2008 victory as potentially significant.  His presidency portended the possibilities of a critical political realignment.  He represented generational change as the first Gen X president.  It was the passing of the political torch from the Boomer Presidents Bill Clinton and George Bush when he defeated the Silent or Greatest generation candidate John McCain.  He was the first non-white president, supposedly the first post-racial one, and his candidacy seemed to bring young people and non-traditional voters into the Democratic Party.  His election produced enormous Democratic congressional majorities, and all signs were that he was capable of being a transformative president who would politically restructure the American political landscape.
            But then somewhere along the line the Obama realignment collapsed, dead by 2010.  Yes the Affordable Care Act passed, as did Dodd-Frank, the stimulus bill, and a host of other important measures.  Yet all of them suffered from the same fate–their sense of timidity.  Whenever Obama had a chance to look history in the eye he looked away from making the type of reforms that would do two things.  One, that would truly restructure American politics.  Two, reform that would link his reforms to building a new political coalition to support them and be the basis upon which to build a new and future Democratic Party.
            The Affordable Care Act is insuring millions of new people but it is a warmed over Republican idea largely imitating Mitt Romney’s Massachusetts model.  It makes few changes in the basically free market model for health care delivery and it does little to address major issues such as cost.  Dodd-Frank was a watered down version of significant Wall Street reform that has been weakened even more by regulatory agencies.  Neither of these laws makes transformative changes in the health care insurance or financial regulatory markets, and polls suggest they are largely misunderstood or disliked.  In terms of foreign policy and the environment, Obama has made some progress, but it not clear the Middle East or the world is safer now than eight years ago or that he has made the progress toward the green economy he promised.  And should a Republican win the White House and retain Congress, many of Obama’s accomplishments may be undone.
            Obama leaves the Democratic party far weaker today than when he was elected.  The statistics are chilling.  In 2009 there were 257 Democratic House and 58 Senate members, today there are 188 and 44.  In 2009 there were 4,082 Democratic state legislators, today there are 3,163.  In 2009 55% of state legislators were Democrats, today it is only 43%.  In 2009 Democrats controlled 27 legislatures and 28 governorships, today it is 11 and 18.  No matter what the statistics,  the Democratic party is weaker today than in was in 2009.
            The collapse of the Democratic party under Obama is even more glaring given that demographic trends potentially suggest a brighter future for the party.  Yet there are signs that Millennials, the most liberal and largest generation in American history, once excited by Obama in 2008,  have disengaged.  In a famous 2010 New Yorker cartoon a character exclaims that “Obama has the potential to get a whole new generation disillusioned.”  Granted part of Obama’s problem was Republican intransigence, but he even had problems getting his own party members to follow him.
            The weakened Democratic Party under Obama explains the 2016 presidential campaign.  The choice for the nomination is Hillary Clinton–a candidate from the party’s old establishment–or Bernie Sanders–essentially an outsider to the party. Obama has left the Democratic Party without a varsity team of players, and the JV and freshman teams are also thin.  This will also make it difficult for Democrats to recruit strong candidates to retake Congress.  The weakened Democratic Party at the state level puts reapportionment and election laws in the hands of Republicans who are using both to further entrench themselves.
            What should Obama have done? In his first year in office when he had Democratic majorities he should have enacted policies that made major structural reforms that would have benefitted and empowered his voters.  He alienated many of his supports by following Bush’s policy of bailing out the banks but he did little for homeowners. He should have raised and  embraced inflation-indexed minimum wage laws, expanded earned income tax credits for working families, and taken bolder moves to address structural income and wealth inequalities.  He also could have pushed to support the Employee Free Choice Act which would have updated the New Deal era National Labor Relations Act.  This law would have reinvigorated labor unions.  Obama also should have pushed for federal laws on voting, such as outlawing voter identification in national elections, allowing for same day registration, and permitting ex-felons to vote.

            Instead of using his political capital, public support, congressional majorities, and a demand for change to adopt real transformational policies, his spent it all on timid reforms that while good, really failed to build the future coalitions and politics he needed to support his legacy for the future.  Instead, his biggest accomplishment may be in how he help sustain the forces to undermine his own legacy.

Saturday, January 9, 2016

Trump, Sanders, and the Crises of Republican and Democratic Party Orthodoxy

Trump and Sanders test Republican and Democratic Party orthodoxy.  They do so in different ways and for contrasting reasons, but over the next few weeks first the Iowa caucuses and then the New Hampshire primary will tell us something about how real these candidates are and what it means for the future of the two major parties.

In my election law seminar one of the questions I ask is “Who is the Party?”  By that, I am asking a legal question regarding who in a political party gets to assert what rights on behalf of whom.  In asking that question possible answers are that the party is its elected officials, paid party officials, party leaders, convention attendees, primary voters, caucus attendees, general election voters, or even those who register or simply declare themselves to be members of that party.  This same legal question applies to thinking about Trump and Sanders in terms of what they mean to the Republicans and Democrats.

Consider Trump first.  Several months ago mainstream Republicans expressed with horror the prospect that he could be their party nominee.   Trump was the fringe candidate, Bush orthodoxy.  Trump’s polling numbers show his greatest support coming from white males without a college education, yet several recent polls now show that across the board Trump is consolidating support across broad portions of the Republican Party and that even its mainstream establishment  is coming to accept the fact that he may be their nominee.  Trump has a huge lead in NH and is second in Iowa to Cruz, yet the former is user the birther attack on the latter and it may succeed in weakening the latter.  Additionally Trump is turning up is attacks on Cruz, potentially suggesting a tightening of the race there over the next several weeks.

The big variable for Trump is twofold.  First, does he have a ground game to deliver his supports to the caucuses and polls in Iowa and New Hampshire.  So far there is little indication of this type of organization.  Second, assuming Trump does convert polls into votes, and as other candidates drop out, can he pick up their support and will he be able to consolidate the base around him?  These are good questions and especially important as the battle beyond NH moves south and one needs to see how well Trump does in winning the Bible belt vote which is critical to the Republican base.

But Trump’s challenge to the GOP is fascinating.  On the one hand he challenges party orthodoxy with his rhetoric, appealing to the fear, prejudice, and insecurities of white males who see a world no longer favoring them. Party leaders abhor his language.   Yet in other ways some point to the fact that Trump’s views simply represent the chickens coming home to roost.   The GOP for the last few years has appealed more to whites, males, working class, and those who espouse hostility to immigration and civil rights.  He is both mainstream and not mainstream Republicanism.

The problem for the Republicans is that much of their current base does support these positions yet this base is old and dying off or demographically represents a decreasing proportion of the population and the electorate with each election.  Unless Republicans reach out to new constituencies, perhaps necessitating a change in policy to do that, the GOP may simply see its base disappear in much of America.  Trump appeals to those who are both part of the base today but not of tomorrow.  He appeals to those who do not like the current Republican party but they are ones who often do not vote.  Trump is a candidate who both does and does not challenge the Republican Party in so many ways.

Democrats are giddy with the prospects of Trump and how he is dividing the Republican Party but they should not be so gleeful.  Clinton holds powerful advantages in 2016 within the Democratic Party as my friend Amy Fried points out.  But the Sanders challenge underscores a huge problem for her and orthodox Democratic Party politics.  First it is surprising that Sanders is doing so well in the polls given that he is not a Democrat.  He is an independent running as Democrat.  That alone should bring pause to the party that an outsider is doing as well as he is.  But with that polls in New Hampshire have him leading and Iowa polls have also narrowed and it is not impossible for him to win there also.  Both Sanders and Clinton have strong ground games in Iowa and lots of money to spend.  Clinton could lose the first two states but still win it all once  the primaries and caucuses head south.

Yet Clinton faces continuing challenges within her party.  She suffers from a significant enthusiasm gap with the Democratic Party, even among women. Moreover, among younger voters she has problems, yet this cuts two ways.  Short term Millennials do not vote in high percentages so perhaps this is not an issue.  But if we think of the future of the Democratic Party residing in capturing a new generation of voters–the demographics is destiny argument–Clinton is not helping the party.  Millennials are far more liberal than previous generations and more liberal than Clinton.

Millennials are more likely to identify as Democrats when they do identify.  But overall Millennials are turned off by both parties, including the Democrats.  Clinton does little to bring these new people into the party, Sanders potentially does.  Sanders is like Eugene McCarthy once was, or Ted Kennedy to Jimmy Carter, Bill Bradley to Al Gore, Howard Dean to John Kerry, or even Barack Obama to Hillary Clinton in 2008.  Sanders represents a power challenge to party, but this time the challenge has an age and generational aspect that overlays with ideology.  Clinton is the Democratic Party as it is now or was 20 years ago when Baby Boomers were in charge.  But Obama was the first Gen X president and soon power will pass to the Millennials.  Clinton is perhaps the last gasp of the old Democratic Party, not one to build toward the future.

Clinton’s other problem is one similar to Trump’s; neither are very appealing to the independent or swing voter–especially in the swing states–who will really decide the presidency.  Clinton is less unpopular than Trump but should the latter get the nomination it is not unthinkable that Trump could win if he uses the same tactics against her that he is using against his Republican opponents.  Already Trump is going after Clinton via her husband’s sex life, and one can anticipate even other low blows and shots in a general election.  Remember Willie Horton ans Swift Boats for Turth?

What we see in Trump and Sanders are rival challenges to party orthodoxy.  In the same way that Trump speaks to voters whom the Republican Party appeals to but whom they have not benefitted, Sanders also appeals to a group of voters to whom the Democratic Party has ignored.  If Bush and Clinton represent status quo orthodox in the parties, Trump and Sanders show a rejection of such orthodoxy. Trump is perhaps the logical extension of party policies and rhetoric that will appeal to a demographic that puts the Republican party out of business.  Sanders potentially speaks to the coming Millennial generation without whose support the Democratic Party cannot survive in the future.