Sunday, December 4, 2016

Lessons Learned or Not from the 2016 Election

Perhaps the only thing more dreary and misinformed than the commentaries and emoting leading up
to the 2016 election are the commentaries and emoting that have taken place since.  It has been approximately one month since  November 8, I have given more than a dozen talks to various groups about the election and have listened to more than my fair share of partisan analysis and general emoting about what happened.  Nate Silver once did a book discussing the need to separate the signal from the noise if we want to make good predictions. What are some of the lessons learned or not since then?  In effect, what was and is still now the signal and noise regarding the election?

The Pollsters did not blow it.  Everyone wants to argue that the pollsters blew the election.  No, they did not.  The last national aggregate polls said Clinton had about a 2-3 point lead in the national popular vote.  Guess what?  The near final vote totals are showing her with a 2 or so point lead in the national popular vote.  But remember two things about polls.  First, polls are never pin-point accurate and will be expressed in terms of margins of error of +/- three or so points.  Clinton was within that margin or error.  Second, and more importantly, as I have repeatedly told people, national aggregate polls are worthless when it comes to presidential elections because we do not elect people by the popular vote–it is the electoral college that matters.  What was more critical to examine were the tracking polls in critical swing states and there we saw clear evidence in the last 72 hours or so that the undecided voters were tracking toward Trump.

But the pundits did blow it.  The NY Times at one point gave Clinton nearly a 92% chance of victory and Nate Silver had it up to the high 70s or 80s.  Almost every major media pundit and outlet  was convinced Clinton would win and simply could not see how she could lose to Trump.  ( For the record, I generally placed Clinton’s chances most of the election at about 55% but consistently saw many reasons why Trump would win and apparently I have been told by many people who attended many of my talks in the last year said that I predicted Trump would win).  There are many reasons why they blew it, much having to do with the intellectual or cultural bubbles they lived in, laziness,  or again accepting the same received wisdom of 2008 that said that Clinton was inevitable.

This election was typical in many ways.  In many ways this was a normal election that came down to some fundamentals and basics.  It was an election that was decided by a handful of swing voters n a few swing counties in a few swing states. These were the same states I wrote about in my book, plus Pennsylvania and Michigan.  No surprises here.  In addition, elections come down to candidates  and their narratives–Clinton lacked a clear and consistent reason to why she should be president, Trump had a narrative.  Despite all the hand wringing and speculation of a divided Republican Party, Trump did a better job mobilizing the GOP base and holding it than did Clinton.  Trump moved more of the swings in the critical swing states.  And true to form as with the most recent elections, it was a polarized election that was very close.  Finally, Tip O’Neill once said never assume people will vote for you–everyone wants to be asked.  Clinton lost in Michigan and Wisconsin because she did not campaign there ask for votes, Trump did.  The same almost happened in Minnesota.

The election was atypical in many ways.  There were many ways this was an unusual election.  First both candidates were tremendously unpopular and that created volatility among some in the electorate undecided regarding whether to vote and for whom. Perversely, both candidates did better in the polls when they did not talk or were not covered by the media.  Second, this was the first presidential campaign in American history with a major party candidate featuring a woman.  Before  the election I estimated that approximately 30% of the electoral would never vote for a woman regardless of who she was.  My point was that sexism was a central problem in this election that most pundits and people largely ignored.  It played out in terms the preoccupation with Clinton’s pantsuits, speech patterns, demeanor, and Trump’s language, both verbal and body during the debates and campaign season.    Other factors that made the election unique were how the Democrats seem to have largely lost working class voters, the impact of the FBI director Comey letter, and the  near complete void in terms of issues as a factor in the race.  We should also not forget about the transformation of the made for television election and presidency into the made for social media election and presidency.  Finally, we should not ignore the important role fake news played and how bots and trolls potentially drove much of the election in the social media.

Politainment lives!  I have written extensively about the rise of politainment, or the convergence of the politics and entertainment (and pop culture) where candidates who master the art of generating clicks and views in a 24/7 for profit media cycle will do well.  Trump understood this, Clinton did not.  The mainstream media was so heavily dependent on Trump for dollars and viewers that it could never figure out how to cover him.  The same is true post-election.    Trump essentially owns the news establishment, preventing the media from being able to cover him in any way that is objective or reasonable.

But even beyond the aforementioned themes, there are several post-election reactions or statements that need to be addressed.

Trump will be the president.  Barring the unforeseen Trump will be president.  A lot of people are saying that “Trump is not my president.”  Like it or not he is.  Some see him as a sexist pig or worse  and cannot believe Clinton lost to him.  The reality is she did lose the electoral college to him.  Moreover, yes the sexism in our culture stinks and one can complain about it forever but that sexism is a reality and female candidates unfortunately have to learn how to campaign facing it.

Don’t blame the voters.  I have seen way too many articles or people blame Millennials, or third party voters, or women, or others for why Clinton lost.  Stop blaming the voters!  The fault is with Clinton.  Ralph Nader once said that no one owns a voter and as Tip O’Neill said, you have to ask and earn votes.  Clinton was not entitled to anyone’s vote and she had to earn it.  If people did not vote for her the fault rests with her so blame her and her campaign instead.

Demographics is not Destiny.  This was the Democratic Party mantra and Clinton strategy leading into this campaign.    Demographics matter but so does candidate quality and message.  Moreover, in many ways demographics did matter in this election–white working class are still a majority of the electorate and they still matter and they show up to vote.  Oh, and the electoral college still matters.

The election was not rigged.  There is little evidence to support this a currently understood.  We do not have much information regarding voter suppression yet.  There is little evidence of Russian hacking or the general hackability of US elections.  Moreover, there is no evidence that millions of illegal votes, especially in patterns that would have only voted for Clinton. No party has a monopoly on virtue and there is also no reason to think that the paltry cheating that occurred took place to the benefit of one party or candidate alone.   If we are talking about rigging in terms of the role of money in politics, election rules that hurt third party candidates, and the media bias, then yes it may have been rigged.

This may or may not have been a critical election.    There is some evidence that traditional voting patterns shifted in this election but it is not clear how much and how permanent.  The best explanatory variable predicting election returns this year seems to be educational level.  Areas on balance with people with more college degrees voted for Clinton and Democrats.  No this does not mean stupid people voted for Trump.  It instead suggests a new cultural divide that needs to be understood better in terms of how American elections move forward.

There are no tanks in the streets.  Calm down everyone.  Yes the campaign was awful in tone and  we saw an unleashing of a lot of bigotry.  Yet it started way before Trump and he may simply be the face of a new ugly era already emerging in politics.  Stories from the Southern Poverty Law Center report hundreds of hate incidents since the election but we have no idea how this fits into an existing trend line or in comparison to comparable recent periods.  There is constant hysteria about what will or will not happen with Trump as president.  Calm down.  For the same reason that the rigidity and stability of our political institutions (checks and balances, separation of powers, bicameralism, and federalism) make political change difficult, the same will also prevent any excesses over the next four years.  We should also simply ignore or shrugged off (as David Brooks recently said) the most recent tweets of Trump.

Overall, understand there is a lot of noise out there.  Ignore most of it.

Monday, November 28, 2016

Ethics and Conflicts of Interest at the Minnesota Sports Facilities Authority

Rochelle Olson’s recent Star Tribune article detailing how members of the Minnesota Sports
Facilities Authority (MSFA) have given themselves the perks of free tickets to sports events and the new US Bank Stadium is a case study in self-dealing and abuse of official positions.  It describes how public officials have convinced themselves how doing what is in their personal interest is furthering the public good.  What they did is ethically wrong, and as I was quoted in that piece, perhaps also legally wrong.  Let us examine the issues.
First, let me explain my perspective.  I taught government ethics for 15 years.  Prior to that I served as the president and executive director of Common Cause Minnesota (a group that advocated for ethics in government).  I have done ethics training for many state agencies and local governments in Minnesota.  I have written a book and several articles on government ethics, and serve on the editorial board for the leading international journal on government ethics.  For all of these reasons I think I can competently speak on the issue of government ethics.
The single most classic definition of conflict of interest is when government officials are using their personal positions for private enrichment, or using their official position to further their own private interests.  By nearly universal definition this is a form of political corruption.  While traditionally such a definition of conflict of interest required a public official to reap a financial or pecuniary gain, the concept of conflict of interest and abuse of position has expanded.  Minnesota Statutes §43.A38, which applies to members of the State Executive Branch, well captures this.  For example, it declares as a conflict of interest:

use or attempted use of the employee's official position to secure benefits, privileges, exemptions or advantages for the employee or the employee's immediate family or an organization with which the employee is associated which are different from those available to the general public.

This law also bans the “ use or allow the use of state time, supplies or state-owned or leased property and equipment for the employee's private interests or any other use not in the interest of the state.”
By any reasonable construction of this law, use of the special box seats by the MSFA for their personal use is ethically wrong.  Other states have similar rules on this, as well as local governments.  In fact, in my training of local governments employees and professional societies across Minnesota, the type of behavior exhibited by MSFA officials would clearly be wrong, subject to disciplinary action.  In addition, if this behavior were to occur among members of the executive branch it would be considered illegal.  In fact, for the last 18 or so years I have taught in  the Emerging Leaders program for the State of Minnesota.  This program trains future managers and agency heads in state government.  I have always taught the ethics component in conjunction with the state ethics officer and Minnesota Statutes 43A.38 occupies a central role, where descriptions of the type of behavior depicted by members of the MSFA are highlighted and described as ethically and legally prohibited.   The point is that what they did is wrong.  No matter how hard they worked they are not entitled to these special privileges.  The same point goes to recipients of the free tickets if they too are public officials or employees.
So has any state law been broken?  The answer is more complex but there are good reasons to say so.  First, any members of the executive branch who received free tickets arguably did break the law.  But what about members of the MSFA?  If they are considered members of the executive branch then they did too.  It is not clear if they are, but an argument can be made that they should be.
The MSFA is a strange entity in Minnesota law.  Minnesota Statutes § 473J.07 declares the MSFA to be “ established as a public body, corporate and politic, and political subdivision of the state.”  Under   473J.09   it is declared to be a public “authority may sue and be sued. The authority is a public body and the stadium and stadium infrastructure are public improvements within the meaning of chapter 562. The authority is a municipality within the meaning of chapter 466, and that means both the Data Practice Act and open meeting laws apply.  All this is significant for several reasons.
First, it is a public body but it is treated like a local government.  Minnesota Statutes 43A.38 does not apply to local governments and therefore one could argue that members of this body do not legally have to follow these rules. Yet Under Minnesota Statutes  § 10a Subd. 22, they meet the definition of local official (“ a person who holds elective office in a political subdivision or who is appointed to or employed in a public position in a political subdivision in which the person has authority to make, to recommend, or to vote on as a member of the governing body, major decisions regarding the expenditure or investment of public money.)  Members of the old sports commission explicitly covered by this definition (subdivision 24).  Arguably so are members of the MSFA, and they would be covered by the conflict of interest rules under Minnesota Statutes  § 10a .  These rules are weaker than 43A.38, but they still have some force here.
But more importantly, even though the enabling language for the MSFA makes them a local government, there are many reasons to think the agency is also a quasi-executive agency, or at the least an agency with a confused legals status under the Minnesota Constitution.  Its members are appointed by the governor but it reports to the legislature.  There is no other entity in Minnesota that looks like the MSFA, except perhaps for the Iron Range Resource and Rehabilitation Board (IRRRB), and state law explicitly declares the IRRRB to be an executive branch agency.
The similarities in structure between the MSFA and the IRRRB suggest the former should also be considered to be at least a quasi-executive agency.  Its confused legal structure, despite state language to the contrary, suggest it to be executive in many of its functions and therefore should be treated as if part of the executive branch with 43A.38 applying.
Finally, there is another reason to think that the MSFA distribution of box seats is illegal.  Look at who received the tickets–apparently all DFLers.  One can argue that the seats were awarded for partisan political purposes, and there are opinions from previous State Auditors that the use of state property for political purposes is illegal.
Overall, members of the MSFA and public officials who received free tickets should have known at the very least that their actions were unethical by any accepted standards of contemporary public sector ethics.  In addition, State Law and, in some cases applicable local law, would have declared this practice illegal.

Friday, November 25, 2016

Before there was Trump there was Ventura: The Lessons from Minnesota


Today's blog also appears in the Huffington Post.

            America–You are about to experience with Donald Trump as president what Minnesota experienced with Jesse Ventura as governor 18 years ago. Both are politainers within a world of politainment where the traditional boundaries between politics and entertainment have merged and the normal rules defining conflict of interest and the personal and public roles of individuals have collapsed.  And if the experiences of Ventura are any indication, America is in for an entertaining four years with Trump as president.
            Eighteen years ago, James Janos “shocked the world” when he was elected governor of Minnesota.   Better known as Jesse Ventura, a professional wrestler and a B movie actor, he marketed his media skills and persona to fuel his candidacy.  He ran as an anti-establishment, pro working class, truth-talking, third party candidate who would shake things up in St. Paul, Minnesota.  And he did.  When first elected one of my graduate students and I described him as the culmination of a new breed of candidates for a new era.  He was a politainer–a politician and an entertainer combined–operating in a world where politics and entertainment–politainment–had emerged.  What does it mean to be a politainer?
            Back in 1999 we wrote that a “politainer has a dual career: he uses his entertainment career to benefit his political career, and he uses his political career to benefit his entertainment career.”  We described the entertainment persona of politainers as fiction, yet we elect as a politician the persona and not the person.   The persona is the political and vice versa. The politainer persona is a commodity to be sold using multi-media venues and marketing techniques to deliver a message that simultaneously convenes both a personal brand and a political statement.
            We saw Ventura as the perfect embodiment of a trend in American politics that started with television back in the 1950s.  Presidential politics had been remade by television, and presidential candidates capable of selling themselves there have gone on to succeed.  There are many examples such as the first political commercials in the 1965s proclaiming “I like Ike.” Or the 1960 Nixon-Kennedy presidential debate, the 1968 Nixon appearance on the television show Laugh In, Reagan the actor and his ability to deliver his lines, Bill Clinton on Arsenio Hall donning dark glasses and a saxophone to play Heart Break Hotel, or simply the emergence of Comedy Central and SNL as major pop culture players in politics.  Politics and entertainment had collapsed into one another and Ventura understood that.
            As governor Ventura never seemed able to separate marketing his persona from his job as governor—in many ways he was a perfect case study in conflict of interest.  He hosted the XFL while governor, claiming to do on his time off.  He appeared on his favorite soap opera, and he acted in his persona to host a professional wrestling match while portraying his role as governor.  When criticized for all these adventures as conflicts of interest–and I filed several of those complaints as executive of Common Cause Minnesota–he dismissed them, saying that these rules did not apply to him but only to professional politicians or everyone else in the executive branch but him.  Trump’s governorship was in part about the triumph of personal interest over the public interest, or at most the pursuit of his interest defined as the public interest.  And on top of it all, Ventura had a thin skin for criticism, attacking as “jackals” the very media who made him.   By the time his governorship ended, his popularity and support wearied a state that once gave him record approval.  Minnesota survived Ventura, but his legacy is at best mixed in terms of what he accomplished.
            Minnesotans see Trump as Ventura redux, a politainer for a new generation who also shocked the pundits and media with his election. His political success too is rooted in his entertainment persona–he understood how to market himself to a 24/7 news cycle hungry for ratings and controversy, and he delivered a fresh news story and drama every day that satiated the media hunger for ratings and clicks.   But he also mastered the social media, transforming the made for television presidency into the made for Twitter and Facebook one.  Trump declared outrageous claims to promote himself and the media took him literally while his supporters took him figuratively, selling himself, the country, and his supporters the belief that his election would represent the victory for the little guy–that is what would make America great again. Conflicts of interest?  That is something for professional politicians which is why during the transition he continues to mix personal business with politics, signaling that what is good for Trump the brand will be good for the nation and vice versa.

            If Ventura’s experience is any guide, Trump too at best will leave a mixed legacy.  At best, it will be a presidency marked by a petty, thin skinned politician who had a chance to change the political paradigm but did not. At worst, it too will be train wreck of shameless self-promotion and marketing gimmicks that confuse the public and private interest.  Minnesotans have already lived through an earlier version of Trump and we are ready for his presidency.  Are you America?

Saturday, November 12, 2016

Trump, Clinton, and the Crisis of the Democratic Party

To the surprise of many of many Donald Trump defeated Hillary Clinton to become the next
president of the United States.  The reasons for Clinton’s loss are many, but the real issue is what’s next for America and the world under a Trump presidency?

Why Clinton lost?
There are many reasons why Hillary Clinton lost; some are self-inflicted, others a consequence of bad timing and luck.  Clinton was in the end a weak candidate.  She was a poor public speaker, she lacked a clear rational for why she wanted to be president, and she had a strategy that simply did not resonate with many voters, especially the white working class who voted for Trump.  She never had a good explanation about her e-mails and the use of a private server, or about her Wall Street speeches. She was someone that many voters did not feel passionate about, resulting in her holding less of her Democratic party base to vote for her than Trump did with his Republican party base.  Clinton also was unable to capture the swing or undecided voters in large percentages, and it was these voters who broke decisively in the last few days and went for Trump.
But Clinton was also a victim of circumstances.  Her greatest asset was her experience as a senator and Secretary of State, yet in a year where being a Washington insider was a liability it hurt her.  She ran as the status quo candidate who will continue Obama’s policies, but the mood of the country was for change. She was also a victim of sexism, facing unique problems as a woman that no previous major party presidential candidate faced in American history.  There was the unfortunate luck of the cost increases under the Affordable Care Act or Obamacare, and she also became the fifth victim in American presidential history to be the winner of the popular vote but lose the electoral vote.

The Crisis of the Democratic Party
In addition, for those who wondered why the polls failed the answer is that they did not.  In the end the last polls said she was ahead by a percentage point or so and the final election totals confirmed that.  Clinton did win the popular vote but remember, it is the electoral college that decides the winner and not the national popular vote.  Clinton lost narrowly, it coming down to swing states.  In these states last minute voters broke against here, similar to what happened in 1980 when undecided voters at the last second voted against Carter and for Reagan.  Additionally, the voter turnout in 2016 was the lowest in 20 years–Trump and Clinton were candidates who turned off many voters, especially those who were occasional voters.  In 2008 and 2012 they went for Obama but Clinton could not convince them to vote for her.  Many of the 2008 Obama voters wanted change, Obama did not provide it and Clinton as the status quo president who would continue the Obama agenda too did not represent it.
In the end as Top O’Neill once said, no one owns a voter or vote and you have to ask for it and earn it.  Clinton and the Democrats failed to ask for the votes of many people and they did not earn it.  In fact, the real story of 2016 is the collapse of not the Republican but Democratic parties.  Obama and Clinton leave the Democratic Party far weaker today than they did in 2008.  It is a party  unable to speak to working class whites, rural, and suburban America.  A party that actually does  take for granted people of color and liberals whom they assume will vote for them because they have no other choices.  It is also a party that blew off young people–the Millennials–with repercussions  down the line.  No, contrary to what so many Clinton supporters are whining about, the Sanders and Trump people are not idiots and voting for Johnson and Stein did not cost Clinton the election.  Clinton and the Democrats lost it themselves; the voters were often rational in voting not their fears but their hopes.

The Trump Presidency
Trump is now president and the question is what will he do?  He made lots of noise about building a fence along the US-Mexican border, wanting to renegotiate trade deals, and of perhaps  rethinking NATO and the US relationship with Russia and Putin?  How much of this will or can he actually do?
Domestically Trump has called for many changes but it is unclear what he can do on his own.  Historian Richard Neustadt once said that the power of the presidency is the power to persuade.  Presidents are not generals, business leaders, or monarchs and they cannot just order people around.  They need to persuade others, including Congress, the bureaucracy, the states, the media, and the public if they as presidents want to succeed.    Trump’s close victory in a divided America means he will be limited in terms of whom he can persuade.  His own Republican Party is divided and it is not sure he will get an easy path to success in Congress.  Because Trump ran a campaign largely devoid of policy he has no real clear policy agenda path.
In addition, presidents are constrained by a power bureaucracy, federalism, checks and balances, and separation of powers.  At the end of the day there will be no wall along the Mexican border, and mass deportations will not occur.  Trump will make America a less kinder and gentler place, but the extremism that some worry about will not occur.  US political institutions are not that fragile, I hope.
In the area of foreign policy often the best predictor of what a new president will do is to look at the previous president.  There is far more continuity across presidential foreign policy than there is divergence.  Obama made marginal changes from Bush.  The foreign policy establishment is power and it transcends political parties.  Trump may find he is captured more by this bureaucracy than he realizes.
Trump may try to force changes in trade deals but face retaliation from China and the European Union who will not passively sit by.  The same is true of the World Trade Organization.  Trump may think he knows Putin but after he gets burned by him a couple of times he may turn on him.  Trump wants to tear up the Iranian nuclear deal, but it is not clear what he has to replace it with and it is doubtful the rest of the world will go along.  Unilateral action in Syria and against ISIS or Dash is possible, but Trump seems not to have real alternatives.  And even his talk about NATO and its alternatives may be more talk than reality.  It just does not seem feasible that the US foreign and miliary policy establishment will let that happen.  Yes, perhaps a new global order needs to emerge, but te US in 2017 is not in the same position to force this change as it was in 1946, or even at the end of the Cold War.
In short, Trump may simply misunderstand or not appreciate how little power he actually has.  He is potentially clumsy, undiplomatic, unskilled, and clueless about world politics, but it is doubtful he will have the ability to affect the scope of changes that he blustered about during his campaign.

Friday, November 11, 2016

Electoral College Do Your Job: Make Clinton President


You’re heard the news stories over the past two days that the electors in the Electoral College could still swing this election back to Hillary Clinton when they meet across the country to cast the ballots for their states on December 19. You’ve heard there is a petition with hundreds of thousands of signatures encouraging just that.
Constitutionally they have the power to do that, and if they care about democracy and the will of the people, that is the right answer.

First,  I did not support or vote for Hillary Clinton.

Having said that, I believe that because Hillary Clinton did win a majority of the popular vote, she should be our next President.

That would be the case if the President were selected directly by the people. Majority rule by the people through elections is central to almost everyone’s conception of what a modern representative government is, and in democracies around the world, the people select their leaders that way.

Not so, currently, in the United States. Instead, the President is selected by the Electoral College.

That should not happen in this day and age. The Electoral College model of electing a leader is an outdated, anti-democratic institution.

In 1787, when those who framed our government deliberated the drafting of the Constitution, the Electoral College was selected as the mechanism to pick the President for three reasons.

First, it was a by-product of a compromise of a conflict between the big versus small states. Sparsely populated states feared they would be ignored if population were the basis of Presidential selection.

Second, southern states feared that if population were a basis to pick a President the populous northern states would outlaw slavery. It was this same fear of slavery being banned that led to the famous “three-fifths compromise” that counted slaves as only partial humans for the purposes of taxes and representation.

Third, the framers of the Constitution and our government simply feared common persons, seeing them not as competent to select a position so powerful and important as the President.

Alexander Hamilton, writing in defense of the Electoral College in Federalist Paper 68, declared of the President “the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” Yet, he declared that such a choice should be entrusted to a small group of people consisting of “men most capable of analyzing the qualities adapted to the station. . .[and who] will be most likely to possess the information and discernment requisite to such complicated investigations.”  In his Notes of the Debates in the Federal Convention of 1787, James Madison quotes several of the constitutional framers who opposed directed popular selection of the President, such as Elbridge Gerry, who saw the people as “uninformed, and would be misled by a few designing people.” And in Max Farrand’s definitive The Records of the Federal Convention of 1987, Roger Sherman said that the people will “never be sufficiently informed.”  Moreover in his classic defense of the Electoral College, historian Martin Diamond saw the institution as a means to protect minority rights, guarding the country against regionalism, sectionalism.

The Electoral College was the product of slavery, racism, and distrust of the people to make their own choices. It is part of a Constitution silent on the right to vote, and to this day there remains no constitutional right for the people to vote for President. The Constitution ignores the popular vote, and delegates to the states the power to select the Presidential electors. It is merely by the grace of state laws that we are permitted to go to the polls to chose the electors who eventually chose the President.

With this election, we will now have experienced five elections where the winner of the popular vote was selected as President but where that winner was not allowed to serve as President. Hope that the Electoral College would protect small states from being ignored or that the Electoral College model would prevent only a few states or regions of the country from determining the presidency have not lived up to the founders’ intent.

As I pointed out in Presidential Swing States: Why Only Ten Matter, the Presidential election process has fallen into a predictable pattern where only a handful of swing voters in a few swing counties in a few swing states ultimately decide the election. It happened again in 2016.  This is hardly democratic, producing a system where the voices of only a few are heard and the majority are ignored or disenfranchised in many states.

The Electoral College is simply outdated, it distorts the views of the majority in the ways the constitutional framers never would have envisioned, and it operates with a view of democracy and of the people that is
inconsistent with contemporary conceptions of what a representative democracy should be–which is that the people have a constitutional right through free elections to let the majority pick their President.

So what is to be done? A 2011 Gallup poll indicated that 62% of the public supports amending the Constitution to allow for direct popular vote of the President. However, amending the Constitution is near impossible, and doing so would not change the outcome of this election in favor of the candidate who was selected by popular vote.

There is another option that can be exercised, and I urge our electors to truly consider it. Come December 19, when the electors of the different states convene across the country, they should simply exercise their legally-viable independent judgment that the constitutional framers envisioned and do what Alexander Hamilton declared is in the best “sense of the people”–and cast their vote for Hillary Clinton for President.

It need not even be all the electors who do that. Simply having some of the electors in the close swing states of Florida, Michigan, New Hampshire, North Carolina, Ohio, and Wisconsin split evenly to reflect the popular votes in those states would be sufficient to ensure the people’s choice is made, that the people’s are heard and valued, to show the people—each one of us—should and do count.

 It would not be unprecedented for electors to cast their votes independently. Over time there have been 157 “faithless electors,” as they are called, members of the Electoral College who did not vote for their party designated candidate who won the state. The most recent was in 2004 when an anonymous elector in Minnesota voted not for John Kerry but John Edwards for President.

The Electoral College may be a broken model-yes, but it’s our existing model-yes again, so why should the electors not do what can and should be done, which is legal and ethical within the framework of the existing model, and vote for the popular candidate?


In voting independently, an elector would be doing exactly what the constitutional framers intended; the electors would be using their positions to vote in line with the sense of the people–in this case, following what the majority voted this past November, which is to make Hillary Clinton the next President of the United States. 

Saturday, November 5, 2016

So How Close is the Presidential Election Now?

So how close is the election right now?  Depending on the polls–along with their inter-
pretation and misinterpretation–one gets varying answers. The simple answer is that there is a lot of misinformation out there, fed in part by cherry picking of data, partisan pushing, or simply a misunderstanding or interpretation of polling and statistics.

On Friday Nate Silver gave Clinton a 66.5% chance to win, down a lot from last week. Until a week ago I had Clinton at about a 75% chance. Before the first presidential debate I had Clinton 50%+ to 55%. I am back to that prediction. Clinton's position in critical swing states appears to be eroding, and data in the Washington Post suggests that too.  However, as of Saturday, November 5, Clinton still has enough of a lead in the critical swing states to put her over 270 electoral votes and win.

But consider two polls.  Earlier this week a Washington Post-ABC Poll had Trump beating Clinton 46-45% among likely voters, with a margin of error of +/- 3%.  Now in a new poll released today Clinton leads 47-43%, with a margin of error of  +/- 3%.  The interpretation of these two polls is that Clinton has recovered from the latest FBI e-mail controversy.  But has she?  Not necessarily.  Consider the margins or error.  A Trump 46-45 lead with a margin of error of 3% could mean the race was Trump ahead 49-42, or Clinton ahead 48-43%, with today Clinton now leading 50-40 or losing 46-44.  Margins of errors are, well, margins of error and not pinpoint statistics.  This means that in the last it is possible there has been no overall shift in the polls and that instead what the Wash Po poll is revealing is nothing more results well within margins of error.  We really do not know if the race has shifted much in the last seven days.  However, given that most other polls have listed Clinton as generally ahead in national polls she may be.

The big issue is how undecided voters will break this weekend. This election reminds me of 1980 when in the last 72-96 hours undecideds broke for Reagan over Carter, preferring change over the status quo because of their disgust with current politics. I see many of the same conditions here now and could see lots of voters either not voting or throwing caution to the wind and breaking for Trump. Often undecideds break for the challenger and against incumbents when they do not like the status quo. This election is really close but I can see possibilities for a Trump or Clinton win, a split between the electoral and popular vote, or even a 269-269 tie that sends the election to Congress to decide.  Do not rule out these possibilities, especially a popular and electoral college split.

 On election night I am looking at North Carolina. If Clinton wins that state it is all over because it will be mathematically hard for Trump to win without NC.

So what happens if the election melts down and the candidates challenge the results?  as I point out in a recent Huffington Post piece, don’t necessarily count on Congress or the Supreme Court to fix this election if it is contested or challenged.  Those institutions too are broken by partisanship.

Finally, for both candidates a major mistake is that neither of them are ending their campaigns with making the case for their election by offering a narrative for governance.  Both are sill running for office by declaring they are not as bad as their opponent.  Neither candidate will have a mandate to govern when they take office.

Thursday, November 3, 2016

Don’t count on Congress to settle a close US presidential election

Today's blog originally appeared in The Hill.

The Constitution ultimately vests in Congress the authority to resolve challenges regarding the counting of electoral votes by the individual states in presidential elections. Yet if the 2016 presidential election melts down or if there are major challenges to the electoral votes in any state, don’t necessarily count on Congress to be able to resolve the problem. The reason is that the law that empowers Congress to resolve electoral vote disputes may be unconstitutional.
Given the recent comments that Donald Trump has made about not necessarily accepting the results of the election, or that a disagreement about the election in some state emerges again as it did in Florida in 2000, it is possible that Congress may be called on to resolve any electoral vote disputes. This would not be the first time Congress had to do that.
Congress did it the first time in 1800 when Thomas Jefferson and Aaron Burr supposedly ran as a president-vice-president ticket, but a flaw in the Constitution led them to receive an equal number of electoral votes, thereby forcing the House of Representatives to select the president and to eventually amend the Constitution.
Then there was the election of 1876 between Samuel Tilden and Rutherford B. Hayes. Tilden received the most popular votes, but the House of Representatives eventually picked Hayes as the president after disputed elections occurred in Florida, South Carolina, and Oregon.
With no other method to turn to, Congress established a partisan Electoral Commission to award an Electoral College majority to Hayes, and agonized over the creation of a procedural framework for resolving disputed elections for a decade — finally passing the Electoral Count Act in 1887.
The Act prescribed a method of appointing state electors, the form in which votes were to be submitted to Congress, and most importantly, a number of restrictive procedures that both Houses of Congress were required to follow in counting the results.
Among these procedures, one provision requires the House and Senate to meet together to resolve disputes, but fails to specify whether this requirement creates a unique and distinct body or if the two bodies are acting separately.
The Electoral Count Act was consigned to the dustbin of history by everyone except the most astute election law scholars until our country again faced a razor-thin presidential contest in 2000. While scrutiny of the Act by the U.S. Supreme Court in Bush v. Gore largely centered on the timing of certification of state election procedures for it to receive safe harbor deference for its election results, the numerous procedural objections raised by members of Congress during the Electoral College count in Congress in January 2001 gave rise to a number of serious constitutional questions that have somehow evaded lawyers over the past fifteen years.
Among these issues are whether the actual rules that dictate how the votes will be counted by the House and Senate together are themselves constitutional. It may well be that these rules violate other constitutional provisions that make the House of Representatives and Senate the ultimate judge of their own internal procedural rules.
It is possible that the Electoral Count Act of 1887 violates this constitutional provision by forcing the two bodies to act as one and give up their own power to control these rules. 
And even if not unconstitutional, deep partisan disputes and jealousy between the House and Senate could lead to a stalemate during the counting of the votes. Assume for the sake of argument that the Republicans keep the House and the Democrats take the Senate — objections raised by Republican Members of the House might be perfunctorily overruled by Democratic President of the Senate (Vice President) Joe Biden, leading to the Republican House asserting that Vice President Biden’s power to rule on their objections is unconstitutional.
At that point, in a political era of intense partisanship, a mess greater than that experienced in 2000 would be faced by our federal courts. If the Electoral Count Act were constitutionally challenged it could potentially leave Congress without a viable means of resolving a heavily partisan and disputed controversy.
This would send resolution of the 2016 race into uncharted political and constitutional waters that could well take months if not longer to address, much like it did in 1876. 
In an era of division and discord, we can all agree that the rules of the game for presidential elections must be fair, agreed to by all, and most importantly, constitutional.
Quick action should be taken to ensure that our history of disputed results, hanging chads, and uncertain procedures does not continue to linger over this country in future presidential elections.
Schultz and Land are the authors of a recent journal article on this topic entitled “On the Unenforceability of the Electoral Count Act” published in the Rutgers Journal of Law & Public Policy. Schultz is a Professor of Political Science at Hamline University and Land is Deputy Legislative Counsel of the Nevada Legislature.