Saturday, January 17, 2015

From Selma to Stonewall: Same-Sex Marriage and the Legacy of Martin Luther King, Jr.



            By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States.  Many will applaud that it is now legal across America and that the battle for equality is over.  Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.
            On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage.  It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve.  This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry.  Federalism may be great for many things, but some constitutional questions demand definitive answers.
            While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry.  Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights.  Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement.  I still think that will occur this year.  It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States.  Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.
            So then what?  Is the battle over?  For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing.  Making same-sex marriage legal across the country takes the issue off the electoral agenda.  But  that is not the end of the story. 
            The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans.  The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality.  It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists.  It exists in school outcomes and incarcerations.  It exists in racial profiling,  income and wealth disparities, and in general attitudes about race, especially and still in the South.
            Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights.  Blacks had Selma, gays and lesbians Stonewall in New York.  Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns.  Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences.  Fifty years later racism remains entrenched in America, especially in the South.  It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly.  These are also the states where reproductive rights are still  most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.
            The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle.  Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America.  The same will be true come later this year when Justice Kennedy writes his 5-4 opinion.  This is what we need to remember as we celebrate Martin Luther King’s birthday.

Saturday, January 3, 2015

The Truth about Right-to-Work Laws



With Republicans in control of so many state governments and legislative chambers across the country one can expect that they will move their agenda.  Among items on their wish list will be right-to-work (RTW) legislation.  The argument will be that RTW laws will cut unemployment and grow the economy.  Ostensibly the argument conversely is that unions increase unemployment and hurt the  economy.
What do we really know about RTW laws?
 There are 24 RTW states and 26 plus the District of Columbia without such laws.  The Bureau of Labor Statistics (BLS) provides data on unionization rates, unemployment, and median family income.  Look at the October 2014 state unemployment rates as computed by the BLS.  Six of the states with the highest unemployment rates were RTW.  Among the ten with the lowest rates, five were RTW.  The average unemployment rate for RTW states was 5.5%, for non-RTW, it was 5.8%.  Since the 2008 recession, the difference in unemployment rates between RTW and non-RTW states has been minimal, revealing no clear pattern that the former has produced more jobs than the latter.
            Another way to examine the issue is by doing a statistical test called correlation analysis. Statistically, if being RTW decreases unemployment the correction is 1. If RTW increases unemployment the relationship is -1, and if the laws have no impact the relationship is 0. Is there any statistical correlation between a state being RTW and unemployment rates?  The correlation is 0.1 using 2014 data or 0.09 using 2012 data.  There is essentially no statistical relationship between states being right-to-work and unemployment rates. 
But now take a look at the differences from another angle.  There is a significant difference in median family incomes in states that are RTW versus those that are not.  Using a three year average of median family income from 2011 to 2013, RTW states have a median family income of $49,276, for non-RTW it is $55,725Ba difference of $6,449 or 13.1% per year.  Testing for the impact of RTW on median family incomes, the correlation relationship is -0.4. This means there is statistical evidence that RTW laws are associated with significantly lower incomes.  RTW appears to depress incomes.
           Now is there any statistical correlation between the percentage of the workforce in a state that is unionized and unemployment rates? Again using BLS data, one finds a correlation of 0.1  The connection is almost non-existent.  However, the percentage of the state’s workforce unionized demonstrates a positive 0.47 correlation with incomes.  Unions appear to increase family income while having no impact on unemployment rates.
Overall RTW laws have no real impact on unemployment and instead states with them have lower median incomes.  Similarly, unionization does not depress employment and instead increases wages.  Presumably more wages for workers means more consumption and a better economy in the state.  Thus, from an economic point of view, RTW laws do not appear to be a good economic deal for a state and in fact one might be able to argue that they bad policy that should be avoided.

Tuesday, December 23, 2014

Minnesota’s Broken Transportation Funding System

Note:  This blog appeared as my regular column in the December 22, 2014 edition of the Capitol report (Politics in Minnesota).

    Not only is Minnesota’s infrastructure in badly need of repair but so is the system set up to pay for it.    But it is not just Minnesota; the entire process for how America pays for roads, bridges, and other forms of infrastructure is vastly outdated, reflecting a carbon-intensive consumptive model of the world.  For that reason, whatever the Minnesota legislature likely does this session when it comes to infrastructure and transportation funding, it will be outmoded from the start.
    The 2015 legislative session is one that Governor Dayton declares is supposed to be about infrastructure and  transportation funding.  Everyone thinks this means road, bridges, highways, and perhaps mass transportation.  But infrastructure is more expansive than that.  It should also include water and sewer lines, aging runways for airports, and even broadband internet access.  All of these are just as important and decrepit as the roads we drive on.  Proof of the need lies not just in conjecture but studies by the American Society of Civil Engineers (ASCE).
    Every three years the ASCE releases a report card on America’s infrastructure.  The 2013 report card graded the United States a D+, noting a needed investment of $3.6 trillion by 2020 to repair the existing infrastructure.  This does not include new construction but simply maintenance.  The maintenance includes not just roads, bridges, and sewers, but also investments in parks, hazardous waste treatment, dams, the energy grids,  rail lines, and the many nuclear power plants that should have already been decommissioned but whose life is being pushed to dangerous levels.  We have been living off  of our parents and grandparents investments for too long and it is time for us to pay our fair share.
    Minnesota does not escape from the infrastructure deficit.  There are 1,500 bridges, 10% of the total, which are structurally deficient or obsolete. The state has 14,500 miles of roads of which 11% are in poor condition.  The parks need $375 million in investment, and $7.4 and $4.1 billion respectively are required to upgrade drinking and wastewater facilities respectively.  Overall, the estimate is that the poor quality of the roads, and bridges alone cost drivers annually  in Minnesota an extra $1.2 billion.
    So what should we do?  Ignoring the needs is not an answer.  This is what the Ventura and to a larger extent the Pawlenty administration did.  A second option touted by the Republicans is that bridges and roads can be fixed without new revenue–we just need to readjust current priorities.  That option too is like believing in the tooth fairy.  The $1 billion dollar budget surplus, even if real, is not enough to pay for much.  Cutting spending from some other area begs the question–where?  The state has only just paid back K-12 and it still could use more money, especially to fix aging schools.  From high education?  Go talk to college students and parents about tuition.  From health and human services?  Go talk to our grandmothers in nursing homes or sick poor people sitting in emergency rooms.  Saying that you plan to shift priorities essentially means you are forcing a choice between roads or early childhood education. Both are important.  Finally the debate at the capitol  will also center around roads, bridges, and mass transportation, mostly ignoring the other infrastructure needs in the state. 
    Had the Republicans not taken control of the Minnesota House, Dayton and the Democrats  would have probably proposed raising the gas tax again.  That option is still on the table.  At best  this idea is a short term quick fix, but it is not viable any longer as a solution.  Nationally, the Federal Highway Transportation Fund is the main way to pay for roads and bridges.  It is based on a gas tax similar to what Minnesota has.  But the federal trust fund is insolvent or at least unable to generate the money needed.  Why?  Several reasons.  First the fund is a tax based on the number of gallons of gas people drive.  As cars have become more fuel efficient fewer gallons of gas are sold.  Second, people are actually driving fewer miles; this is especially true with Millennials who are less likely to own cars or who are increasingly living in the city and not commuting from the suburbs.  Finally, development of alternative fuel vehicles and mass transportation options are reducing  use of gas.  Overall, carbon taxes to pay for one aspect of our infrastructure needs is an aging funding  formula that no longer works.
    The worldwide collapse of oil prices is a mixed blessing.  Great for consumers on the one hand, but on the other it makes it difficult to investment in new energy technologies.  Short term the lower prices mean that the Bakken oil fields will become economically inefficient and cut production, or that some consumers will buy bigger cars and drive more, therefore using more gas.  All this is short term and does nothing to address the longer term trends impacting transportation funding. 
    More creative solutions are needed.  Economists have suggested taxes on miles driven, or  a variable tax that adjusts with the price of gas.  Others have even suggested more toll roads.  One could also scrap the fuel tax entirely and shift it to income or other consumption fees.  These are possibilities for Minnesota, although some such as toll roads are hugely unpopular and probably regressive.   Nationally, eliminating the tax breaks for carbon-based companies and putting at least part of that money into infrastructure is an option.  Still others have talked of privatization, but the track record with this option too is mixed.
    This column may not be able to offer the right answer, but it can say that simply doing what Minnesota has done for the last 30 or more years is the wrong solution.  Now is the time to revisit from scratch the entire funding system for all of Minnesota’s infrastructure needs and not just for roads and bridges.  New sources of investment are needed and they must reflect the changes in how people consume resources.
   

Saturday, December 20, 2014

Tinker, Tailor, President, Spy: American Politics at the End of 2014



The November 2014 elections already seem ancient history.  Yet in barely seven weeks a host of major events have transpired, raising interesting questions about Barack Obama and the future of American politics, both short and long term.  Let’s review some of them and see what they potentially mean.


The End of the Cold War...Finally?
 The Cold War is over. Long live the Cold War!  These are the sentiments best captured by two events this past week–Obama moves to normalize relations with Cuba and the president threatens action against North Korea for hacking SONY.  Both events

Cuba and North Korea are perhaps the two last iconic symbols of the Cold War.  They conjure up images of the Bay of Pigs, the Missile Crisis, and a divided peninsula and war that would never end.  The two countries were supposedly the last two communist countries standing, and they both were surrogate grounds for the conflict between the US and USSR.  But at least in the case of Cuba and  Castro, it also represented a host of other rumors and conspiracies about the assassination of JFK, the FBI, CIA, and spying.

We embargoed Cuba for 50 years with no avail. No real good came of it and in fact one could argue that the embargo and US politics toward Cuba did more to hurt America’s relations with South America than help it.  It also meant that we had little leverage with Cuba when the inevitable day came when the Castros were no long around.  Obama’s move was smart–it represented or reflected the new realities of the world.  The generation that wanted to maintain the embargo is largely dead or gone (keep that in mind Senator Rubio) and Cuba is no longer a front line for the Cold War.

North Korea is different.  It is no longer the surrogate struggle between the US and USSR.  It represents a new type of battle–cyber-terrorism.  There is an old adage that says the most countries  are militarily prepared to fight the last war. The same is true with the US.  We still think of war and terrorism as the use of bombs and bullets or of physical invasion of one country by another with troops, planes, or even drones.  Think of terrorism and we think of 9/11.  But that is old thinking according to Richard Clarke who in Cyber War points out how vulnerable the US is to cyber terrorism and also how badly prepared we are to fight it.

The US may be one of the most wired and computer connected societies in the world.  Such sophistication means there is a lot to hack–anywhere from official government defense sites to power plants, trains, planes, financial institutions, and private companies such as SONY.   Clarke argues we are hackable, that are defenses are poor, and that the US is overall ill-prepared to fight back.  The terrorism is what happened to SONY and that it what the future 9/11s will look like.

Obama has vowed action against North Korea but options are limited.  Very little of Korea is computerized so points of vulnerability are fewer.  We have little trade with that country and few think that the president is prepared to deploy old-fashioned arms against it.  For now there is a standoff.

This is the new Cold War.  But this is not the only part of it.  The new Cold War is the on-going battle against ISIS.  And the new Cold War is how the Ukraine has become a symbol for what looks like a lingering or rekindling of the old Cold War between Russia and the United States.

The Lost Soul of American Politics
The on-going stories of race and policing in America and the Senate CIA torture report together raise troubling images about America, especially when one considers the reactions to both.  They paint a partisan and racially divided picture about the use of force against citizens and non-citizens around the world.   Collectively, they also question the moral legitimacy of the US.

One of the defining characteristics of America–or at least Americans like to believe–is that we are different and that we embody a set of moral principles that distinguish us from the rest of the world.  This exceptionalism–America as the shining city on the hill-gave us moral authority over the rest of the world.  Yet police violence and torture of prisoners destroy any credence in that exceptionalism.

There is also something wrong with the law that sanctions repeated police use of excessive force. I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations. It is not easy to win these claims. The law and the public favor the police. Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.  Conversely, I remember once doing a WCCO radio show years ago when news of torture fist hit the news.  I explained the Geneva Accords on treatment of prisoners and then took calls.  Repeatedly military vets called in to condemn torture declaring that they learned that if we tortured they (the enemy) would do the same to us or that we would be no better than them.  No surprise that John McCain was one of the few Republicans to condemn the CIA.

My point here is that the Senate report itself was not a surprise.  We have long since known that torture does not yield good information.  Nor should we have been surprised that the torture existed.  We have known that for years.  The real surprise is how some such as Dick Cheney seem completely morally tone-deaf and, to a large extent, how Barack Obama seemed to distance himself from the report.

A New Obama Presidency?
For a president who was supposedly rendered irrelevant by the 2014 elections, Obama is perhaps finally showing that there is still life to his presidency.  Yes he blew it on the Senate torture report, and ISIS, and on Syria.  But increasingly his moves on immigration and Cuba look bold.  While too much of his first six years has been marked by timidly, there is a glimmer of hope for progressives that his final two years will not be marked by constant capitulation to the Republicans.

However, there are still nagging doubts about his presidency for many on the left.  What will he give away to protect Obamacare or make it look like he is a compromiser?  The mistake the progressive  made in 2008 was to think he was progressive.  He was compared to George Bush but not compared to many other Democrats.  Obamacare was a Republican idea he embraced.  Obama was or became  a Wall Street candidate who took more money from the too big to fails than any other candidate in history.   Obama has done more to kill off campaign finance reform and limit in politics than any candidate in history.  Yes he protested Citizens United but he has raised more money than any other presidential candidate in history.  He was the first to opt out of the presidential voluntary public financing system, and he just signed a bill dramatically raising contribution limits to political parties.  His tenure a president will be footnoted as the one where money took over politics.

Start Your Engines
The Iowa straw poll is eight months away and the Iowa caucuses are barely 12 months out.  The 2016 presidential race is upon us.  All speculation is on Clinton v Bush, but not so fast.  But are running with a sense of inevitability but both are candidates with tired old names who may no longer  represent where the parties are.  At this point it is equally probable that either or both of them get their party’s nomination, but it is equally probable they do not.  Clinton has a better chance given a weak Democratic field, but a serious challenge from the left (almost anyone for the Democrats will be from the left) could change the equation for her.  For Bush, there are many other potential rivals such as Rand Paul who excite the base more than him.  Finally, both Clinton and Bush have many liabilities that could be exploited.  Long records in office give opponents lots to attack.