Wednesday, June 21, 2017

Trump, Congress, and Georgia: How the Democrats created their own political disaster

Democrat Jon Ossoff lost in a special congressional election in Georgia. It should have meant nothing but instead it meant everything for all the wrong reasons.  The Democrats transformed something that never should have mattered into yet another crisis for themselves.
The special congressional election in an affluent Atlanta suburb to fill the vacancy created by Republican Tom Price was foolishly blown out of proportion from the start by Democrats.  They made it into a referendum on Trump and created all the hysteria and expectations about victory. The media and other political pundits across the nation did the same.  Wrong.  As I have repeatedly argued, one special election should never be treated as a harbinger or referendum on anything beyond what happens within that district.  As former House Speaker Tip O’Neill once said, all politics is local.
Yes, national issues may intrude, but local races are ultimately decided by local issues.  Candidates and parties who think there are national, one-size-fits-all, cookie cutter strategies to winning across the country are doomed to lose.  Each race is unique, no special election is a proxy for the nation. To think otherwise ignores the reality of statistics and not generalizing from one election to the rest of the nation, and it simply ignores demographics and trends that define each district.
But yet again Democrats could not resist.  They made Georgia a do or die.  They saw a district that Trump won last year by 1.5% and thought they could win the congressional seat even though the then incumbent in 2016 won a blow-out victory.   They assumed Tuesday there would be a coat tails effect (Trump did not win by much and so perhaps they could win this congressional seat) even though there was no coat tails effect last fall. They declared probable victory, dumped money, time, and other resources into it.  But mostly they dumped hype into it.  What they did not dump into it was a narrative and strategy.  Instead, they yet again pinned hope on dislike for Trump, changing demographics, and believe that Democrats and other voters will come to their senses and vote for a Democrat would be enough of a strategy.  It wasn’t, and it should not have been a surprise.  After all, this was Clinton’s strategy and she lost.
Because Democrats made such a big deal of this race, creating expectations wildly beyond the probable, losing the special election is now devastation. It is seen as a victory for Trump, a loss for the Democratic Party, and the pundits will declare it as just that.  Democrats would have been smart not to have nationalized this race, instead treating it as a special local election and developing a candidate, narrative, and strategy suitable for the race. They should have said it was a long shot to win in the South, that the Republican was heavily favored, and then if they won or got close they could have declared a victory if they wanted.  At the end of the day, did anyone seriously think a Democrat was going to win in Georgia?
So a race that should have meant nothing now means everything.  It shows Democrats learned nothing from the Clinton lose and Trump victory last year.  Democrats going into 2018 have no narrative to win except to say Trump is terrible.   They have no agenda or policy platform to appeal to working class voters who fled the Democrats for Trump.  They still think demographics is destiny, and that they will win simply by being a reasonable alternative.  The Georgia loss is meaningful because it reveals all these flaws in the Democratic Party game plan and now they will have to suffer through the Trump and Republican gloating and pundit pounding for creating their own hyped-up disaster.

Friday, June 16, 2017

A Tale of Two Cities: Reflections on the Minneapolis and St. Paul Mayoral Races

Minneapolis and St Paul are two cities.  No, not two separate cities, but two cities each within
themselves. Both are shining cities on the hill for those who are white, affluent, and live in the right neighborhood.  They are cities of concentrated poverty, racial disparities, and lack of opportunity for  people of color, the poor, and those who live in the wrong neighborhoods.  The defining issue for the 2017 Minneapolis and St Paul mayoral elections ought to be about rectifying the difference between the two cities–providing justice to all to prevent the conditions that led to the deaths of   Jamar Clark and Philando Castile, but so far that has not been the case.
Minneapolis and St. Paul are great cities with a wonderful quality of life, for some.  But both are  hugely segregated by race and income.  It was that way nearly 20 years ago when I worked for the University of Minnesota’s Institute on Race and Poverty and we documented that segregation.  Over a generation little progress has been made. They remain cities with  neighborhoods torn by concentrated poverty, race, crime, and disparate educational outcomes.  They are cities where wealth is concentrated in the urban core and in a few neighborhoods, leaving many others behind.  Mayor Hodges, and before her R.T. Rybek and before him Sharon Sayles Belton, all promised to put money into the neighborhoods, to delivery economic development for the least advantaged, and either failed or ensnared in the demands of downtown urban development.  The same is true for Chris Coleman and before him Randy Kelly and Norm Coleman.
This year, largely  the candidates are failing to talk about the other cities within Minneapolis and st Paul that have been left behind.  The candidates do not seem to run on the quality of city services such as making sure that the streets are safe,  plowed, and pot hole free, that the garbage is picked up, housing codes are enforced, or the police respond when called.   Instead they are running against Donald Trump, talking about bringing more events such as the Super Bowl or other sports events to their city, or being the greenest city in America.  All lofty goals but not what cities are about.  Or in the alternative, when they do discuss the core issues of poverty, homelessness, or city services, they fail to mention something simply–how to pay for it.  Minneapolis and St Paul have finite resources, property taxes are going up rapidly, and the traditional middle class feel squeezed that they cannot afford to stay in their homes anymore, or that they cannot buy or rent a place in the city.  Raising taxes is not the solution.
The issue for Minneapolis and St Paul is social and economic equity. Fundamentally, the defining issue for the two cities is creating economic opportunity for all.  It is making it possible for individuals, regardless of race or neighborhood, to have a decent job, a choice of where to live, a voice in where to send their children to school.  The role of the mayor is steering investment, encouraging economic development, making it possible for people to create their own businesses.  Expand the economic base for all, especially those who are left out already, and that is they way to generate the resources both to finance the city and help those who have been left behind.
Such a vision for the two cities requires several things.  Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood.  Rethinking the two cities’ comprehensive plans is one step.  Allowing in some places for more intensified or mixed development, to allow some people to  invest in their own neighborhoods will help.  Yet private investors and banks will not act on their own to finance this.  Both cities need to think of their own investments in terms of streets, sidewalks, and  other services such as code enforcement.  The cities can help foster the conditions for economic development in their various neighborhoods, but they can also do things such as provide micro-financing to help some communities and guarantee loans in some situations.  Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity-based.  Thus, both place-based and mobility strategies are needed.
But that is not enough.  Businesses or people invest where there are skilled workers.  Strategies to attract and remain college graduates and provide real training for those lacking skills too are important.  Better partnerships among the local colleges, employers, and workers to train and connect businesses to people should be on any mayoral candidate’s agenda.    Quality services, the amenities of parks, libraries, and the arts are too what candidates should be discussing.  So too should they be talking about schools.  No, mayors cannot improve schools themselves, that is not their job.  But they can provide the conditions that make it possible for children safely to go to schools, or to live in neighborhoods that support learning though the maintenance of libraries and communities centers, for example.
Finally, both cities must directly confront the discrimination that exists within their borders.  More aggressive human rights enforcement is one answer.  The tragedy of the deaths Minneapolis  and St. Paul residents Jamar Clark and Philando Castile is a story of both racism and failed economic opportunity.
I certainly do not pretend to have all the answers. Yes, I have worked as a city director of code enforcement, zoning, and planning, been housing and economic planner, consulted and trained many local governments, and taught and researched planning and urban politics and local economic development for years.  None of that means I have all the answers.  But what I do know is that a city is its people, that all neighborhoods should have opportunity, and that what the mayoral candidates in both Minneapolis and St. Paul should be talking about is how to grow the economic opportunity  for all and how they plan to pay for the visions they have.

Saturday, June 10, 2017

Trump and Obstruction of Justice: What did the President do and why?

The penultimate question of the 1973-74 Senate Judiciary Committee investigation of Richard Nixon and Watergate was Republican Senator Howard Baker’s “What did the President know and when did he know it?”  Now the question to be asked is “What did the President do and why?”
Former FBI director James Comey’s testimony on June 8, was significant in many ways.  The first was that it represented a major transformation in the debate surrounding Donald Trump and his presidency.    If before Thursday the main line of questioning was Russian involvement in US elections along with Trump or his surrogates collaboration with them (and that is still a major and important focus of the congressional and special prosecutor investigations), the Comey testimony shifted the debate to questions of whether the president engaged in obstruction of justice when he took certain actions against him or others.  Second, the testimony places Trump and his defenders on the defensive, further damaging the policy agenda of a presidency that is already dead.
Prior to Thursday partisan Democrats fantasized about a Trump indictment and impeachment.  But that was the talk of MSNBC ratings mongering and hyperventilated blog sites.  Republicans largely could ignore this talk, dismissing it as partisan chatter.  Yes the NY Times, CNN, and the Washington Post speculated on this too, but again more to sell papers than anything else.  Comey’s testimony changed that, putting Republicans, conservatives, and Trump supporters on the defense.  The focus of the public discourse , even on Fox national news, now is on whether Trump broke the law, specifically engaging in criminal obstruction of justice.  The former now are debating on the latter’s terms, and this is not good for Trump.
Too much of the debate since Thursday has been predictably partisan, breaking along Republicans acquitting Trump and Democrats convicting him.  But there is no question that the debate now centers on the two questions of what did the president do and why?  The reason for this gets down to basic criminal law–proving actus reus and mens rea.
For anyone who has every taken a criminal justice law  course they know that there are two elements to proving someone is guilty of a crime.  First one must prove that one did a specific deed in question that is prohibited by law–actus reus–and second, that the person acted with the requisite mental intent–mens rea.  Criminal liability is not strict liability–the government must also prove some level of intentionality, and do so beyond a reasonable doubt.  In a free society such as the United States, the government carries the burden to prove guilt, and a jury trial is the classic mechanism of determining that, assigning to 12 reasonable people the task of ascertaining whether the burden has been met.
Obstruction of justice is defined in various places in federal law.  18 U.S. Code § 1505 declares as obstruction of justice:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—


Section 1505 has two important requisites.  One refers to actions that seek to obstruct, impede, or influence some proceeding by any federal agency or Congress (actus reus), and the other to the corrupt purpose (mens rea).  To show that Trump engaged in both one needs to prove both elements and that there is a nexus or connection between the two.
Much of the Comey testimony centered around actus reus–what did Trump actually do.  There were accusations about whether Trump said certain things to Comey such as call him to encourage him to stop the Flynn investigation.  While Trump has called Comey a liar and vice-versa, it would be hard to impeach Comey.  Yes, he may be a disgruntled former employee with reasons to get even, but given his long track record in government there is no reason to question Comey’s veracity under oath  where lying to Congress would bring with it both a major blow to his reputation and a possible felony charge for lying to Congress.  Some of the Trump defenders are factually challenging the Comey testimony, but instead the real battle has shifted from what the president did to what he intended.
Trump’s defenders are arguing that the president did not fire Comey to impede any investigation.  They offer some alternative reasons for his dismissal.  But increasingly they seem to be arguing a case of ignorance–that Trump simply did not understand how government works and the protocols about contacts between the president and his staff, especially those who do investigations.  Such a defense is damning the president with faint praise.
Such a defense first effectively  concedes the president is clueless about how government works and what a president can do. “Trump is not a crook because he had no idea what he could do as president.”  For someone who argued his fitness to be president, this is not a ringing endorsement of the president by his defenders.   Moreover, such a defense holds Trump to a lower standard of conduct than his predecessors.  I do not recall anyone giving Obama or previous presidents grace periods to learn their job or get up to snuff in terms of understanding their legal and constitutional duties.  One is president from January 20, upon taking the oath of office.  In addition, even if the president did nothing illegal, I see no one discussing the ethics of this issue.  By that, under any code of conduct that would should hold any public servant to, Trump’s behavior with Comey (and perhaps more broadly as president) is hardly the model of ethical conduct and decorum.  It should not just be enough to hold someone up to a minimum legal standard of conduct; the ethics of public service sets a higher bar and none of Trump’s defenders seem nowhere near defending the ethical propriety of their man.
Second, how many times have we all heard the phrase “ignorance of the law is no excuse.”  I cannot commit a crime and then say I am innocent because I did not realize I am not supposed to rob, kill, etc.”  Intentionally is generally about wishing to do something prohibited by the law, not necessarily intention to break a law I know that exists.  If I intend to kill someone I am guilty of murder even if I did not know the murder statute exists.  To say that Trump may have intended to fire Comey to impede an investigation but that the president did not violate a law because he did not understand how government operates is simply besides the point.
Third, even if Trump did not understand what he could do as president, the Justice Department is full of attorneys who could have advised him.  Other presidents turn to counsel to get advice, there is no reason for Trump not to have done so.  Fourth, some argue that there is no smoking gun to prove intent, such as an actual memo or tape recording, and therefore any speculation about mens rea is merely circumstantial.  In reality, determinations of intentionality are often if not usually circumstantial; intent or what is in our hearts is often proved by what we do under specific circumstances.  Thus, to show Trump acted with requisite intentionality to violate federal law, the standard would be whether 12 reasonable jurors with open minds would come to believe beyond a reasonable doubt that Trump intended to corruptly impede, obstruct, or influence a federal investigation.  The simply answer is right now we do not know, the investigations are only beginning and they will take time.  We should neither rush to judgement nor dismiss the accusations at this point, the fact finding has only just begun.
These investigations are a problem for Trump.  Once Nixon, Reagan, and Clinton were facing investigations, their presidencies effectively ended.  But for all three in occurred in their second terms after each has achieved significant policy victories.  Trump has no legislative policy or other real victories to count, and his presidency is now hobbled from its inception.  The irony  here is that if one loved the gridlock of the Obama years, we now will face that at least as long as the Mueller and Congressional investigations continue, which certainly will be well into 2018.

Saturday, June 3, 2017

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.
            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  
             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.
            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.
            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 
In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.
While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.
The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.
Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Tuesday, May 30, 2017

Prosecuting Police Misconduct--Why it will be hard to get a conviction in the Castile case

Note:  For seven years I taught criminal justice classes, including a course that included examination of police  civil and criminal liability.  I also discuss police use of force in the second edition of my civil rights/liberties case book to be published by West Academic this summer.

On May 30, jury selection in the case of police officer Jeronimo Yanez begins.  He is charged with the shooting of Philando Castile.  Many think it will be a slam dunk to get a conviction–after all, there is a tape of the incident that appears to show an unwarranted excessive use of force.  Yet the odds are that it will be hard to win this case.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases.

Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals or accused or criminal acts.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims.   Much of this may not apply in the  Castile case.  But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

While the above framework applies to civil responsibility, it overshadows criminal liability for police conduct.  Effectively a prosecutor will need to demonstrate that a police officer–here Officer Yanez–acted outside the scope of his authority when he used force.  Then the prosecutor will need to prove the elements of the crime second-degree manslaughter and two felony-level counts of dangerous discharge of a firearm–beyond a reasonable doubt.  Taken together, this is a very high bar
for prosecutors to overcome.

Tuesday, May 23, 2017

The Entirely Predictable Minnesota Special Session

A special session for the Minnesota State Legislature was entirely predictable.  One practically could
guarantee after the 2016 elections that with a Democratic governor and a Republican legislature a special session was likely, and a partial governmental shutdown again a real possibility.  While the tentative budget deal brokered at 11:50 Monday night–just minutes before adjournment–could fall apart, it looks for now that the worst scenario has been averted.
Yet no one should take this deal as a sign of victory; instead it points yet again to many underlying failures in the budget process in Minnesota which has created what I have called for years the new normal.  The new normal refers to a process dating back 20 years where special sessions, government shutdowns, and failed legislative sessions are the rule and not the exception. So why yet again did the legislature miss its deadline?  Why the new normal?
Budgets reflect values.  They reflect priorities that different individuals or political parties have regarding what programs are to be fund and for how much, and what public policies they want to see for the state.  Budgets are political visions.  The new normal in Minnesota reflects a changing political climate in the state that started about 20 years ago.  This is no longer a solidly DFL state.  As the shifting partisan control of the governor’s office and legislature have shown over the last 20 years, Minnesota is a politically competitive and divided state.  Clinton’s relatively narrow presidential victory over Trump in the state in 2016 demonstrated that.  
Look at a map of Minnesota. It reveals from the presidency down to legislative and local races clear patterns of DFL and GOP control.  More importantly, the two major parties are polarized along a range of issues ranging from health care, mass transportation, taxes, guns, abortion, and preschool funding.  The two parties are relatively equally divided in strength and along their values, making  compromise difficult.
Secondly there is a collective action problem.  There is a collective interest in compromising and reaching political agreement in a timely fashion, but there is little individual incentive to compromise. Among the 201 seats in the Minnesota legislature, no more than about 15-20 in the House and perhaps a maximum of 10 are from swing districts.  The remainder are strongly Democratic or Republican, representing districts where legislators are elected to stand firm on to their partisan views.  It is only those legislators who come from the s wing districts–those with a real chance to flip from one party to another–is there an incentive to compromise.  Strong partisanship in one of these districts is a political liability.   A paucity of swing seats means less pressure to compromise, and throw in strong party government in the state and even in those swing seats there is powerful pressure to vote straight party line.
Third, there is a leadership issue here.  While parties or party polarization may be strong, leadership is weak in the sense of being able to prevent individual members of the legislature from offering bills to appease interest groups or constituents.  Moreover, safe-seat legislators are less dependent on party leadership and can pursue or push special legislation, often without fear that leadership will punish them for it.
But finally, as I have argued or more than a decade, there is a structural problem with the budget process that reinforces the values and political polarization.  The budget process is antiquated.  This is the same budget process that has been in place for decades; it is a horse and buggy process trying to operate in the twenty-first century.  It was designed when state government did far less than it does now, when budgets were a tenth or less of what they are now.  It is a process premised upon the belief that part-time farmer legislators could show up for a few months, vote yea and nay, and then go back and plant their crops.  None of this reflects reality.  The budget process is complex, time consuming, and requires technical knowledge that is way beyond perhaps what we can expect of legislators, especially those first elected in November and then two months later asked to master state government and pass a budget.  Simply put, government may just be too complex to  legislate and budget within the 120 constitutional day limit drawn up for the state in a Norman Rockwell era.
Beyond the fact that legislators suffer from a typical human trait to procrastinate to the last minute, the budget process makes no sense. Legislators take office the beginning of January, wait a month for the governor’s budget, then wait another month for the fiscal forecast. Real budget work does not even start until March–half way through the session, and even then, until budget targets for the ten omnibus bills are decided, few details can worked.  Over the years, half of the budget session has been wasted on passing bills to legalize Texas Hold’em card games or Sunday liquor sales. Moreover, because the budget process is so decentralized, it is hard to control and discipline, and the collective disregard for the constitutional single subject rule simply means that policy gets mixed into budgets, and, in many ways, no one has control over the budget until such time as the parties have taken their predictable ideological votes to please their bases before they begin to think about compromising.
Budget process reform is imperative, including mandating automatic continuing resolutions to finance the government to advert shutdowns.  But even structural reform will not address the values divide in the state and the peculiar political incentives that the two sides have that encourages them to fight and not compromise.

Saturday, May 20, 2017

Trumpapalooza: It’s Worse than Watergate

With each passing day and news story about the Trump administration, the parallels to Nixon and
Watergate get stronger and stronger.  Yet while stories of coverups, obstruction of justice, and the hiring of a special investigator invite powerful comparisons, the reality is that with Trump it is  potentially far worse than Watergate, far worse than Clinton, Lewinsky, and Whitewater, and maybe even worse than Iran Contra.  Trumpapalooza–an all encompassing, 24/7, multi-media extravaganza, –could be the worst of all presidential scandals so far.
It is unfortunate that one of the defining themes of American politics in the last 50 years has been repeated stories of abuses of presidential power.  Once called the imperial presidency by historian Arthur Schlesinger, Jr., it was a product of granting too much power to the president to act in a range of domestic and international events, congressional acquiescence of its constitutional duties, and usurpation and abuse of authority of presidents for personal gain or revenge.
Watergate is the paradigm of that abuse.  Most narrowly defined, Watergate when the story first broke was about a break in at the Democratic Party national headquarters at the Watergate office building in Washington, D.C.  The story started at first without any allegations of presidential role of White House connection, but it soon expanded to be a much more comprehensive saga of the abuses of power of the Nixon presidency.
The Watergate break in occurs in June, 1972, in the middle of Nixon’s re-election bid for a second term.  Initially there is no indication of presidential involvement but there were rumors shortly after the break in Nixon was already hard at work ordering hush money to cover his tracks.  In addition, in the burglars’ possession when caught was Nixon’s campaign headquarters reelection number The Watergate story does not really take off until 1973 when several reporters and mounting political pressure forced Congress to begin hearings, and then in October 1973 after Nixon had named former Solicitor General Archibald Cox as a special investigator to look into the events, the former fired the later in the famous Saturday Night Massacre.
Through the remainder of 1973 and into 1974 the House and Senate Watergate hearings and the investigation of Leon Jaworski produced a tale of illegal activity that implicated the president of the United States along with his attorney general and other major officials in his administration.  Tied directly to Watergate were Nixon’s ordering of the break in, the cover up, efforts to impede the criminal investigation, and in the end a constitutional battle over the possession of White House tapes of conversations that Nixon had made.  All of this culminated in the Supreme Court decision United States v. Nixon where the Court ordered Nixon to turn over his tapes to a special prosecutor, ruling that the imperatives of a criminal investigation outweigh any executive privilege g rounded in the Constitution  that the president may have in withholding them.  In effect, the president was not above the law.  That decision, along with a House Judiciary vote along bipartisan lines to impeach the president and a grand jury naming the president as an”unindicted co-conspirator,” forced Nixon to resign on August 8, 1974.
Watergate started with a pretty break in of the opposition’s headquarters.  But the entire story of Nixon’s abuse of power also encompassed illegal fundraising, payments of hush money, maintaining an enemies list, attacks on the media, and engaging in an illegal war in Cambodia.  Watergate engulfed, dominated, and ended early Nixon’s second term as president, after serving an initial four years that did produce a score of major legitimate legislative victories including the passage of the Clean Air Act, Clean Water Act, and the creation of the Environmental Protection Agency.  For all the criticism of Nixon, he was a career politician with a congressional and vice-presidential resume, and he had an ability to work with Congress.
It’s potentially far worse than Trump for him, his presidency, the Republican party, and maybe the United States. Trump has no experience in government or the military, and therefore no real understanding or apparent interest in how Washington works.  In many cases he has also appointed individuals with no government experience, and he has failed to fill many critical positions in government.  Trump ran on draining the swamp in Washington and he seems to think that this means crippling the machinery of governance, yet to secure his policy agenda he needs to take control of what Steve Bannon labels the deep administrative state.  So long as Trump continues to show contempt for the Constitution and government he will be unable to get anything done.  The first 120 days portend a pattern of policy inaction, preventing him and the Republicans from securing  their policy agenda.  Trump has created something unique for Washington–intra-party gridlock.  One expected Obama and the Republican Congress to be at odds–but not this kind of stalemate.
But if an aborted or arrested policy agenda were the total of what the problems facing Trump that might not be so bad. Yet it is coming at the beginning of his presidency, not in a second term as was the case with Nixon, Reagan, and Clinton.   But more importantly, the bigger problem are the legal, constitutional, and political issues.  Nixon and Watergate began with allegations of presidential involvement in a petty burglary, the story here involves Trump, his campaign, and his administration’s complicity and conspiracy to work with Russia to interfere and influence American elections and policy.  
Allegations that Trump personally, his family and business dealings, and many of his advisors or staff that include Michael Flynn, Jeff Sessions, and Paul Manafort worked with the Russians, were being paid by them, or in some way coordinated with or cheered on their activities to affect US elections and policy is  far worse than Watergate.  It is far worse than the arms for hostages diversion that Reagan ordered in Irancontra, and it is clearly far worse than Clinton lying about his sexual behavior or losing money in a land deal called Whitewater.
And we can draw this comparison with the benefit of 20/20 hindsight, having all or most of the facts about these previous abuses of power in hand.  Right now few of the facts of  Trumpapalooza are known and investigations have hardly started.  It potentially will reveal far worse.  Who knows how far-flung the story will be, and where it takes one into ow Trump’s private business dealings connect to Russia and other foreign governments or what conflicts of interests it will produce.  Who knows the real reasons for the Comey firings and whether they amounted to obstruction of justice.  Who knows whether the war on the media has produced an enemies list or what other unconstitutional activities (beyond two botched executive orders on immigration and one on sanctuary cites) there are or have been.
The appointment of Robert Mueller as special investigator is only the beginning.  For any who think this is going to be a quick investigation, think again.  The more Trump fights it and sees it as a witch hunt the more likely it seems that he will be uncooperative and force the investigation  well into 2018, thereby nearly guaranteeing that it impedes the Trump-Republican policy agenda, and impacts the elections.
The electoral connection is the last and perhaps most interesting parallel to Watergate.  Until in 1973 when efforts to investigate Nixon were bipartisan, so far the GOP has stood by Trump, tying their political fortunes to him.  They are resisting calls to investigate and criticize.  But if Trump becomes even more of a political liability to them, they may be forced to act otherwise in 2018 there could be a repeat of 1974 when Democrats won huge majorities in Congress, Minnesota, and across the nation.  It is the fear or possibility of that political reality that dictates how the Republicans respond to Trump in the next few months.