Thursday, June 18, 2015

Sex, Lies and Leadership: What We Learn from the Minnesota Sex Offender Program and Sex Abuse Cover-up in the Catholic Church

Two Minnesota stories converged this week.  The first, a federal judge declaring unconstitutional  the Minnesota Sex Offender Program (MSOP), the second was John Nienstedt’s resignation as Archbishop of the MSP Catholic diocese over the priest sex abuse cover up.  Together, they tell a story of sex (power), lies (deception and coverup), and leadership (bureaucracy and shirking of responsibility) with equally tragic tales and little to praise in terms of the political or religious leaders of the State of Minnesota and the Catholic Church.

Minnesota Sex Offender Program
As expected, Federal Judge Donovan Frank declared the MSOP unconstitutional.  Minnesota state officials really knew MSOP was unconstitutional, but they just did not care.  As Frank well put it, everyone has rights, including sex offenders, and the MSOP amounted to either a roach motel (“they check in and they don’t check out”) or simply a lock them up and throw away the key approach to dealing with sex offenders.
The 76 page opinion crisply summarized the constitutional infirmities of MSOP.  The program cannot use civil commitment to punish for past crimes since the offenders have already served their sentence.  The program cannot use civil commitment to lock people up indefinitely to prevent them from committing future crimes because that is not what we do in a free society that values liberty.  The only constitutional justification for civil commitment is to provide treatment to individuals who are mentally ill until such time that they are cured and deemed to be fit to freed. .However, the decision documents a horrendous pattern of non-treatment for detainees’ mental illness.  No treatment, changed treatment, failed treatments.  Detainees were not evaluated, had no options to placement into a less restrictive environment.  None of the individuals ever committed  into the MSOP had ever been released, and only a few ever received conditional release.  Compared to similar programs in Wisconsin and New York, Minnesota simply decided to do nothing with these individuals except detain them for life.
The opinion documents a willful pattern of refusal to treat.  It is a story that goes back to very creation of the program in the 90s, but especially damns both the Pawlenty and Dayton Administrations.  Repeatedly there were reports and warnings from state officials that the program has problems, but the governors and legislators refused to act, fearing political repercussions.  It is hard not to read this opinion and not see that there was an intentional  refusal to act and treat.  The state used the lie of mental illness to detain and then chose not to treat.  Frank documents a dozen problems with MSOP, finding the program was facially unconstitutional  and as applied. Finally, the opinion sets an August 10, 2015 hearing, demanding that the governor and legislative leaders appear before him with a game plan for how to comply with this order.  No surprise, Governor Dayton’s first reaction was defiance, declaring that he thought MSOP was constitutional, suggesting appeal.
What is one to make of the opinion and reaction to it?  Appeal is likely but the chances of the state has in winning are practically nil.  Finding it both unconstitutional facially and as applied  makes it harder to win on appeal, especially when for each type of challenge Judge Frank found numerous problems.  All it takes is for an appeals court to uphold one constitutional defect and MSOP is dead.  The Supreme Court will not take the case–there is no matter of new law here, it is all about a factual case of abuse.  In fact, the non-treatment was so bad and willful that it likely that each of the individuals in MSOP can bring individual constitutional challenges, potentially seeking millions of real and punitive damages from the state.  Add to that the costs to correct MSOP and treat, and the state is on the financial hook big time.
Dayton’s appeal of the decision is an effort to yet again kick the can down the road.  No one wants to take personal responsibility for the problems with MSOP.  Dayton could have taken the high road, acknowledged problems with MSOP, and said he would address them.  He wants to put the issue beyond the 2016 election, perhaps even beyond his governorship.  Yet the August 10, hearing suggests that Judge Frank knows this.  Look to see him hold the state in contempt of court with large fines if they do not act.  Ultimately, the taxpayer will be paying for this willful  choice not to act.

 Sex Abuse and Cover-up in the Catholic Church
Watergate taught us that often times its not the crime that is the problem, it is the cover up.  Persistent sex abuse by Catholic priests is horrible enough of a crime, but what makes it worse is the cover up.  It’s clear that the higher ups in the Catholic Church, especially in the MSP Archdioceses, knew about the abuse, did little to nothing to stop it, and instead simply covered it up.  If they were a private corporation they would be out of business or in jail by now.  Wall Street is littered with stories of CEOs and executives who covered up illegal behavior of their companies.  I know of no private company which could have gotten away with what the Catholic Church did.   They abused  their moral authority and fiduciary responsibility to look out for the best interests of their congregations.
They did that in ways that are taken as textbook.  Deny knowledge, stonewall investigations,  blame the accusers.  Making it hard for victims to file suits and delay long enough that statutes of  limitations, death of priests, or memories of witnesses fade.  Criminal charges should have been filed but they were not, with the best being that Ramsey County Attorney John Choi’s decision to indict the Church on civil charges.  With his approach the Church as an institution is held responsible, but no one individually will be.

Lessons Learned
So why do these two tragedies tell a story of sex (power), lies (deception and coverup), and leadership (bureaucracy and shirking of responsibility)?  Ostensibly both the MSOP and priest sex abuse is about sex’ but really at the end of the day both are about power.  They are about the story of two bureaucracies using their power to control others.  In one case sex offenders, in the other, sex  abuse victims.  It is about how individuals can escape moral responsibility for their actions by hiding a bureaucracy.  They do that by lying, deception, covering up abuse, and simply by shirking leadership and responsibility.  In my ethics training I often discuss the concept of administrative evil,  seeking to explain why good people and organizations do bad things.  With the State of Minnesota and the MSP Catholic Church one seeks how bureaucracies can malfunction, perverted one small step at a time by leaders unwilling to make the rights decisions.  Bishops and elected officials can  hide within their respective institutions, morally deaf to the way their choices are victimizing others and damaging the legitimacy of both Church and State.

Saturday, June 13, 2015

What Ever Happened to the Liberal Democrats?`

What the hell ever happened to progressive politics and liberalism in the Democratic Party?
            When I first moved out here DFLers bowed to the memory of Humphrey, McCarthy, Freeman, and Mondale.  Later they added to that Wellstone.  But such homage is living in past, shallow in the sense that the DFL today lacks the courage of the convictions it once had.  The same is true for Democrats at the national level.
            At the national level Barack Obama is pushing a free trade agreement that only Republicans and Wall Street can love and he now wants to ramp up troop commitment and base building in Iraq, essentially continuing Bush's war and undoing the original rationale of his presidency.  Hillary Clinton's liberalism is hardly that;  her speech on voting rights called for tepid reform at best, ignoring the socio-economic forces for why many do not vote, and her call  for economic justice looks hollow next to support for Wall Street.
            In Minnesota a governor who just a few months was heralded in the national media as the most liberal one in America who got the job done, just folded to the Republicans on almost any measure.  The give-aways on the environment, gun silencers, gutting the State Auditor's office,  and retreating on universal pre-K send signals that Republicans can win if they hold long enough.  And then there is Senate majority Leader Tom Bakk- why he is a Democrat is anyone's guess.  His leadership was deplorable, his messaging horrific, and his negotiating skills next to none.  If he thinks that his capitulation will defend and protect Senate seats in 2016 he is simply wrong. His gaffes and missteps only make suburban DFLers more vulnerable and he has done nothing to convince rural voters to support Democrats.  He made the classic mistake Democrats have made for so long, believing that by acting like Republicans they are more electable.  The reality is that the more the Democrat brand is muddled and undistinguished the harder it is to win an election.
            The politics that looks dead is good old-fashioned economic liberalism.  The progressive politics that appears dead is that of Lyndon Johnson, John Kennedy, Franklin Roosevelt, and even Teddy Roosevelt. It is about the Great Society and the New Deal.  It is about redistributive politics that sought to raise those at the economic bottom, narrow the gap between the rich and poor, and wrestle control of political power in the United States from corporations and plutocrats.  It was a commitment to believing that the government had an important role in make sure we had a nation that was not one-third ill-fed, ill-clothed, and ill-housed, that kids should not go off to school hungry, and that corporations should not have the same rights as people.
            But if Bill Clinton’s presidency did not kill off this type of progressive politics, surely Barack Obama has.  If Obama did not do it directly, he did so indirectly with the 2010 and 2014 backlashes against him that has done more to kill progressive politics than can be imagined.  With less than two years to go Obama is liberated and you would think he would be more bold, but he is not.  Why?  He never was the liberal  folks wanted to believe.  In 2008 his liberalism was far distant to the right compared to Dennis Kucinich and even John Edwards.
            Mark Dayton gets nothing his first year in office then supports corporate welfare for the billionaire Vikings owner.  Now again in 2014 he gives in and Tom Bakk is complicit.            Progressives are on the run everywhere.  It is not just on matters of public policy such as with taxes, government regulation, and health care, but also in the rhetorical battle for the hearts and minds of the people. You can’t even call yourself a liberal anymore without being red baited. Thus the reason for switching to the term progressive. Conservatives have successfully labeled as left or socialist anyone who does not agree with them. 
            Watch cable news (not just FOX) or surf the web, crackpop conservative ideas dominate.  In 2008 Ron Paul pleaded for a return to the gold standard, Michelle Bachmann blamed Obamacare and Wall street reforms for the crash in the economy (even though neither have really taken effect for the most part).  The recession of 2008 is the fault of the government and not greedy bankers and speculators, Keynesian economics to stimulate the economy is wasteful, consumer protection is bad for business, and the Supreme Court’s Citizens United expanding corporate free speech rights to dump unlimited money into the buying of elections is good.  Oh, and vaccines cause mental retardation and global warming does not exist and Obama is blamed for the  screw ups with FEMA and hurricane Katrina! Main stream media seems afraid to put real progressives on the air and what passes as progressive on MSNBC is watered-down, snobbish, and defensive.
            How did it happen?  There is no one cause but there are several reasons.  First, what Obama and progressives have failed to do is craft a narrative supporting their views.  Conservatives have the narrative of individual freedom–markets are good and government is bad.  Government suppresses personal freedom and markets promote it.  Never mind that corporations tell more people what to do with more of their life at work than the government ever does or could.  That’s corporate freedom.  Conservatives have made free choice their buzz word and equality a dirty one.  Progressives have no overarching rhetoric and narrative to support their world view.  Progressives need a winning narrative that appeals to Americans and which dictates a governing philosophy.
            Second, Obama was not really a liberal but his rhetoric looked it.  He ran promising change.  The reason why so many are disappointed in him is not that he was too far left but that instead he failed to deliver on his lofty promises.  At inauguration Obama had a window to change America but he flinched.  Carpe diem was not his motto.
            Third, progressives lack guts to fight.  Obama repeatedly caves, and now Dayton has done it twice. Why?  Democrats (and one should not confuse the party with progressivism) believe that they are the caretakers for government.  They believe that they need to be responsible and not run the risk of shutting the government down for fear of how it would ruin the economy or hurt people.  But conservatives know this and take advantage of the Democrats willingness to blink.  But by blinking the Democrats are screwing over poor people and the economy slowly by giving ground one inch at a time and they seem unable to recapture it. Until Democrats fight and show conservatives they are willing to shut the government down and hold conservatives responsible they will never win.  Missing is the courage of their convictions.
            Fourth, conservatives understand how to make structural reforms and policy changes that both benefit their supporters and enhance their power.  Tax cuts and cuts in regulation are simple ways to benefit supporters, but there is more.  Voter ID disempowers their opposition, attacking union rights undercuts labor support for Democrats and opposition to business in the workplace, and gutting regulations on money in politics strengthens corporations and rich individuals.  Obama’s biggest mistake in his first two years was his failure to act accordingly.  Instead of health care reform he should have used his sizable majorities in Congress to support the Employee Free Choice Act to strengthen unions, adopt national legislation banning voter ID and permitting day of election registration in federal elections, and adopting real Wall Street and bank reforms that would have limited their power, including reauthorizing Glass-Steagall.
            Moreover, Obama should have first done something to help homeowners and workers get their houses and jobs back.  Reward supporters up front and they are with you for life.  Furthermore,  when the Supreme Court issued Citizens United Obama could have issued an executive order barring corporations from bidding on federal contracts if they make political expenditures.   Or he could have ordered the Securities and Exchange Commission to issue rules requiring shareholder assent before companies make political expenditures.  Finally, to break the back of conservative news he could have embraced a reinstitution of the Fairness Doctrine to require the media to offer diverse view points.  But he did not do any of this.
            In Minnesota Dayton signed the death knell for campaign finance reform.  His negotiations with the legislature were a contempt for open and accountable government.  He and the DFL leadership have never supported lobbyist, campaign finance, or real structural reform of the government.  Instead, if anything, what has emerged is a CEO-corporate style of management for government-a repudiation of liberal reforms of the last 40 years and an embracing of a Republican style of politics.
            This is the last problem.  Democrats now feed at the same trough as Republicans.  Obama, Clinton, and  Democrats across the country and Minnesota are equally as dependent on big money and the kindness of millionaire friends as are Republicans.

            Progressive politics is dead so long as it is married to the current Democrat Party.  They need a party that is not willing to play it safe and worry that if a few Democrats lose  that means the Republicans win. It means a willingness to fight for what you believe in.  This is what progressive politics needs to be in the age of conservatism.  The dead don’t fight or win.

Friday, June 5, 2015

Dissing Democracy Minnesota Style

The 2015 Minnesota legislative session and the soon-to-be special session will be noted for  passing few laws, failing to get its work done on time, and simply for sidestepping important policy choices that it needed to address.  But it should also be noted for its contempt for open government, democracy, and respect for the State Constitution.  In effect, it is a simply dissing of democracy and the rules for process for how government should operate.

Closed Door Budget Negotiations
Consider first the most obvious and blatant assault on democracy–the behind the door negotiations to resolve the budget.    It’s bad enough when legislative leaders and the governor did private talks and deals on the budget at the governor’s mansion.  Bad enough when votes take place at the end of session at the wee hours of the morning.  Bad enough when they take place in impromptu conference committee hearings that effectively exclude the public and most legislators.  But now the talks to resolve the disputes over the three budget bills are being done in private between Governor Dayton and Speaker Daudt.  No public, no media, no other legislators.  The deal they carve will be presented as take-it-or-leave-it to other legislators in a special session that will be perfunctory at best.   There is no real accountability and public inspection of these negotiations, no real chance to raise objections, and no real deliberation and debate.  Public matters such as the state budget should be done in public, not behind closed doors as if this were corporate America.

Big Money Wins
Second, Democrats and Republicans joined together with the governor to eliminate the political contribution rebate (PCR) program.  These program, one of the true hallmarks of political reform in Minnesota, allowed for Minnesotans to contribute up to $50 per year and have it rebated to them by the state.  The PCR was nationally hailed as a powerful campaign finance reform tool that encouraged small contributors to give.  Repeated studies pointed to how legislators successfully used it to reduce their dependence on large donors and special interests.  It was also a mechanism to help  third party candidates.
But now it’s gone.  Governor Pawlenty killed it once and it came back.  But now it is gone again, and probably dead forever.  It, along with horrible legislation passed a couple of years ago raising contribution limits and weakening disclosure laws in Minnesota have just about killed off all of the reforms this state had adopted in the early 1990s.  Minnesota has effectively deregulated  money in politics, benefitting noone except for special interests, big money, and the incumbents who voted for these reforms.

Gutting the State Auditor’s Office
Finally, consider legislation that guts the State Auditor’s Office.  The State Auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately.  It is an important position in the state that promotes accountability to ensure tax dollars are spend the way they should be.  Yet the legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms.  The governor signed this bill but now seems to want the legislature to undo this.
The governor should have never signed a bill that allowed for this.  Nothing against private auditors, but this is the constitutional duty for the Auditor.  The privatization will cost tax payers more in the long run–as is typically the case with many privatizations.
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned–the provision is probably unconstitutional, conflicting both with Article V, section 1, of the Constitution creating the office of the Auditor, and Article III, section 1, the separation of powers clause of the Constitution.
There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers.   One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986).  In that case at issue was a  1985 law enacted by the legislature, in special session, which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance.   The reason for the transfer of responsibility was that the Treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties.  The Supreme Court rejected this transfer of duties.
The Court reasoned that even though the duties of the treasurer were prescribed by law, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.”  One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.
Other Minnesota cases have reinforced that point.  In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding  child support  giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause?  The Court said yes, arguing that the transfer of power violated separation of powers.   In supporting its decision the Court referred to precedents and decisions in other states reaching the same conclusion.
In  State v. Baker the Minnesota Supreme Court voided a state enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12 person jury trial.  Here the Court said that the law sought to redefine crimes to avoid the constitutional mandate.  In State ex rel Birkland v. Christianson, the Court declared that the legislature cannot change form of government which would change separation of powers.  In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.  Similar conclusions were reached regarding separation of powers and constitution in Clerk of Court's Compensation for Lyon County v. Lyon County Commissioners.
The point simply is that there is good reason to conclude that this privatization is unconstitutional and in a law suit the Auditor would likely prevail.  Given these precedents, it should be clear that this legislation does nothing more than express contempt for the State Constitution.  It does that, along with the current negotiations on the budget and the elimination the PCR.  The three together are a huge step backward for transparent, fair, and constitutional government in Minnesota.  Process matters.

Monday, May 18, 2015

A Failing Grade for the 2015 Minnesota Legislative Session

The 2015 Minnesota legislative session was a failure.  An F grade for all in my line of work.  No one really got what they wanted and not because there was compromise.  Dayton did not get universal Pre-K, a transportation bill, a bonding bill, or really much of anything else.  The House GOP wanted $2 billion in tax cuts, and infrastructure money and more goodies for greater Minnesota, and they failed.  I have yet to figure out what the Senate Democrats wanted but they did not get it.
The governor and the legislature largely failed to deliver on anything.  The state failed to deal with passing a responsible budget in a timely fashion.  It is full of gimmicks.  They range anywhere from acting as if there was a real surplus and then squandering it to House Republicans passing a phony budget that robs money from one place and giving it to another and calling it an increase.   But think about pressing issues not addressed–transportation funding and infrastructure, civil commitment for sex offenders, and MNSURE–and it is hard to conclude that this was a good session.  Welcome to the new Minnesota normal.

A Crisis in Leadership
Poor time management and leadership defined this session. Back and Daudt did not enter into negotiations until very late in the session.  Back and the Democrats again proved horrible at messaging, while Daudt and the Republicans could not decide if they wanted to play pork barrel politics to get goodies for their constituents or simply cut taxes.  In the end they did neither.
For Dayton he was largely uninvolved in the legislative process and never really made it clear what he wanted.  Recall his state of the state address where he said he had lots of priorities?  If everything is a priority then nothing is.  Kurt Daudt is correct that if Dayton had wanted universal pre-K to be his main priority he should have said that months ago and worked to line up support for it.  He never did.  But Dayton also seemed to pout a lot.  Recall his earlier flare up with Bakk and then his actions in the closing days sounded more like I will take my bat and ball and go home if I do not get what I want.
What Dayton ignored is that you have to create  political incentives for legislators to act, especially  members of the opposite party, and he never did that.  He thought that he had a mandate and could simply push legislators in line.  That is why he did not get what he wanted and that is why he still might not get what he wants in a special session.  Memories of Senate Democrats and House Republicans teaming up to overturn Ventura’s vetoes loom on the horizon if Dayton is not careful.

The New Normal and Why
But this session seems less of an outlier when one keeps in mind that dating back to the Ventura era the repeated number of times the state has witnessed shutdowns, near shutdowns, failed unallotments, and special sessions that reach budget accords so late that it makes it difficult for schools and local governments to plan.  One should also not forget all the phony budgets, cost shifts, and kicking problems down the road that have been part of the new Minnesota Normal.
Partisanship and polarization too were factors this year and in the past explaining the New Normal, but they only exacerbated three underlying problems in Minnesota politics.  First, an archaic and broken budget process.  Second, the entrenched special interests that make it difficult for the two parties to compromise.  Third, the disparate electoral incentives of the governor, Senate, and the House.

Broken Budget Process
The budget process is broken.  Minnesota is trying to do a twenty-first century budget with  a horse and buggy process.  The process in place is one that perhaps once worked well 30 or 40 years ago when the budget was half of what it was and no where near as complex as it is now.   The constitutional mandate for the length of the session goes back to the nineteenth century when we still had this image of farmer-legislators who needed to adjourn in time to get their spring crops in.  A century ago  one did not need as much time as is presently required to pass a budget and debate legislation.  There was simply less to do.
The complexity of the budget process is now so great that even under the best of circumstances it is difficult to get it done in just a few months.  But add to that some additional problems.  First, the increased complexity of the budget and what the state does makes it harder and harder for legislators to master it in a short period of time.  We had elections in November producing  new legislators and  House majority.  How do we expect them from day one to understand how to govern and what Minnesota government does.  Few of us are ready to do our jobs well in the first few months.  There is a learning curve and for state legislators that curve is the budget session.   It would make far more sense to have the budget done in the second year of office, giving legislators ample time to adjust and learn.
Its also about timing.  The governor generally does not release a budget until late January, the final fiscal forecast which is the basis of the budget comes out late March, and then a revised governor’s budget based on the forecast is produced. At this point already two months have been wasted in the budget year.  The timing of when the legislature comes into session, the governor releases a budget, and the fiscal forecast occurs need to be changed because their present order simply encourages procrastination.

Special Interest Gridlock
But a second underlying problem is the way money and special interest influence have made it impossible for the two parties to reach agreement.  Both the Democrats and Republicans have interest groups supporting them, encouraging them to stick to their guns and not negotiate.  It’s not about the gift ban law making it impossible for legislators of different parties to swill together at the Kelly Inn that prevents them from working together, it is about them being unable to resist the pressures from their constituent groups to forge compromises.

Differing Political Incentives
Finally, as this session reveals, there are contrasting electoral incentives that driven the House, Senate, and governor in different directions.  Here the House and Senate both face 2016 elections and therefore have incentives to cooperate.  But in other years the four and two year terms  put the electoral interests of the two chambers in conflict.  This year, moreover, Dayton’s interests contrast with legislators–he is not up for election, perhaps ever again–and he can push for issues or that legislators cannot.
Overall, many factors explain why this session ended the way it did and why it deserves an F grade, and I am not even sure an A for effort is in order.

Three Final Thoughts
If the K-12 budget is vetoed does that mean there will be no funding and school?  No.  Remember that the State Constitution mandates the legislature to fund a “thorough and efficient system of public schools.”  If no agreement is reached the courts will settle this.

Maybe now the state will think about passing the automatic continuing resolution that requires the  state to continuing funding programs at the same level into the next budget year if no budget is agreement upon.

Finally, where will the legislature go for special session if the capitol is closed?  The session has to be in St. Paul.  The governor proposes tents for the front lawn.  I will make a pitch for them to move down the street to my school–Hamline.  Plenty of parking and space to meet, and food no worse than Ulcer Gulch at the Capitol!

Friday, May 8, 2015

Reflections on Race, Gender and Class in America

States are praised as laboratories of democracy.  But as the debates over same-sex marriage reveal, states often can also be crucibles of persecution and discrimination.  If as many expect the Supreme Court rules by the end of June that the Constitution protects the right of same-sex couples to marry that decision will not mean the end discrimination against gays and lesbians.  Instead, as both history and recent events reveal, it will take more than a Supreme Court decision and the passage of few laws to end discrimination.
Consider the matter of race. Sixty years after Brown v the Board of Education schools in the US remain as segregated as ever.  Fifty years after the adoption of the 1964 Civil Rights Act women still are only paid 77 cents on the dollar compared to men and boardrooms remain almost exclusively male (as does Congress and most state legislatures).  Police shootings of unarmed African-Americans paint a picture of continuing racism, and recent polls in the NY Times attest a public opinion that sees a worsening of racial attitudes in America.  Obama has not moved us into a post-racial era and mounting evidence suggests that Millennials are not our first color-blind generation.
Now think about the issue of GLBT rights.   We have traveled an eternity since Stonewall but one should not think that a Supreme Court decision protecting the right of same-sex couples to marry will end the issue.  Much in the same way that post-Brown states found ways to circumvent the Supreme Court, the same is happening with same-sex marriage and GLBT rights.  Indiana’s religious freedom restoration act originally would have sanctioned, under the guise of religion, bigotry in the sense of letting people refuse to provide services to same-sex couples.  Now we see the same bill surfacing in Minnesota with a Senate bill.
James Madison, one of the constitutional framers and author of the Bill of Rights, was skeptical of the power of majorities in small close-knit communities.  He sought to create a larger more diverse national country to offset the powerful pressures of conformity and discrimination often found in local communities.  Nationalizing rights was a say to overcome the type of behavior we see in laws now that try to create personal religious exemptions to laws enforcing civil rights.
But even if the Supreme Court does rule as expected and these laws do not pass or are brushed aside by the courts, one should not think that the last frontier of discrimination has ended.  In fact, the real battle has yet to start–the battle of discrimination against the poor.
Face it, the ultimate discrimination is based on money, wealth, or poverty.  Few see any problem with saying that housing, food, medical care, and even political power or influence being allocated on the basis of money or wealth. Back in the 1970s in San Antonio v. Rodriguez the Supreme Court refused to declare wealth a suspect classification necessitating that government classifications based on it were constitutionally suspect.  Governments are free to discrimination against the poor and they do so all the time.  But even if the Court had ruled opposite of what in did in Rodriguez it still would have left untouched all the non-governmental discrimination that is inflicted upon the poor.
In so many of my classes I discuss how race, class, and gender are often major point of discrimination and conflict in our society.  The law and social attitudes at least officially decree racism and sexism wrong, but we have done little to tackle class.  Instead, as I have written about so many times in columns and blogs, inequality in America is growing and it is clear that the poor have little political influence or power.  Ask who governs America? and the answer is simple–look to see who benefits and it is certainly not the poor.  Our economic stratification reflects our societal political power differentials.
Economics is what gives racism, sexism, and homophobia their power.  On one level I do not care what others think, but it is when they are able to enforce or impress their views upon me by allocating or withholding economic resources, that is what gives discrimination its punch. In many ways I think class is the most fundamental and powerful form of discrimination, it is the one that underlies all other forms of prejudice.

On Another Topic: With less than ten days to go before the end of the 2015 Minnesota Legislative  Session it is not looking good to finish on time. As I said in my last blog, political incentives, partisanship, and a broken budget process all are factors explaining why Minnesota repeatedly now cannot gets its work done on time.

Saturday, May 2, 2015

Final Exam: Political Science 101, Introduction to Real World Politics

It’s May.  I am a political science and law professor and it is final exam time.  Here are the questions  and suggested answers to the final exam in my class Introduction to Real World Politics.   The final consists of three essay questions.

1.  Independent and self-described democratic socialist Senator Bernie Sanders has officially declared he is running for president as a Democrat.  The media has declared that he cannot win.  Are they correct?

Much in the same way after Senators Ted Cruz and Rand Paul declared they were running for president and the mainstream press declared they could not win either the general election or even secure the party nomination, they are saying the same about Bernie Sanders.  The media says that Sanders cannot raise enough money to challenge Hilary Clinton and that she is such a frontrunner and he has positions so liberal that he cannot possibly win and that even the very idea of running seems Quixotic at best.  However, the media and the establishment has been wrong in the past.  Just seven years ago Clinton too was declared the front runner and had a lock on the Democratic nomination and then something happened–It was called Barack Obama.  Both he and John Edwards beat Clinton in Iowa and the former went on to win the Democratic nomination and the presidency...twice.
Clinton has high name recognition and a strong media presence, but she also has huge negatives.  She is well-known and will have a hard time redefining her image.  She does not have a lot of room to recreate herself.  Additionally she has yet to craft a narrative and rational for her campaign.  In effect, she is repeating so many of the mistakes she made seven years ago when the arrogance of her campaign assumed she was inevitable.
True Sanders does not have a ton of money but he has a powerful narrative about economic justice and fairness.  Sanders also appeals the disenchanted left of the Democratic party which does not like Clinton. He will not vulnerable to the criticism that he is a tool of Wall Street and instead will be able to make that argument against Clinton.  Sanders is also good one-on-one talking to people, something really valuable in Iowa and he could pull off an upset there just like Obama did in 2008.  Moreover, while Clinton then recovered and won New Hampshire, Sanders may enjoy terrific name recognition in the Granite state because he is from Vermont.  Combine an Iowa win and a great New Hampshire showing, along with a good narrative and who knows.  Yet again the media could be wrong.  Remember, the media was not only wrong with Obama in 2008, it missed it with Bill Clinton in 1992 and Jimmy Carter in 1976, among many other examples.

2.  The 2015 Minnesota Legislative session ends on May 18.  Do you think they will reach an agreement on a budget by then?
There is barely two weeks left in the legislative session and it is looking less and less likely that there will be a budget by then.  While in January few thought that either not passing the budget by May 18, or by July 1, to avert a government shutdown was likely, what has been most interesting to watch is how the Republicans have hardened their political and policy positions over the last few weeks.  Kurt Daudt and the Republicans have learned how to move their agenda in a coherent fashion (they have learned how to be a majority), while the Senate Democrats and Governor Dayton still seem both unable to articulate a compelling narrative to support their agenda and unable to find the political ability to work together to counteract the GOP.  The governor’s political interests are different from Senate DFLers in that he is not running for reelection while they are and potentially  are vulnerable in 2016.  Thus, their political interests are moving in different directions, thereby preventing them from uniting to oppose the House Republicans.
Many contend that the Republicans are operating in a fantasy world.  They want to make $2 billion in tax cuts (give back all of the surplus) and also spend more on rural and greater Minnesota.  That explains why their recent higher education budget hammered the UMN Twin Cities.  One cannot give away $2 billion and also spend more on greater Minnesota at the same time if one is talking about using the surplus.  That is why the GOP us also proposing other cuts to human services.
But remember that the Republicans are not the only ones living in a different dimension.  The governor and the Senate Democrats too believe that we have a surplus.  The reality again is that there is no real surplus and that between inflation and money that should be placed into contingency, that $2 is already spent.
Perhaps partisan ideology and contrasting constituencies account for many of the reasons regarding why Minnesota this year is perhaps hurling toward another budget impasse.  Yet given all the recent problems with government shutdowns, special sessions, and botched unallotments, the bigger problem is that the budget process is broken.  There are many changes that could be made to improve budgeting.  One example of a good reform would be to adopt an idea from Wisconsin.  In that state, if there is no budget adopted by the due date the current ones continues in effect.  This automatic continuing resolution if adopted in Minnesota would prevent government shutdowns and  would be a good first step in reforming the budget process.  Another good reform would be eliminating the dumb idea that inflation is not calculated for the purposes of determining state budget obligations, even though inflation is considered for the purposes of determining revenue.

3.  Will the screening out of bad racist police officers solve the shooting problems such as what we just saw in Baltimore?  What are these killings occurring?
Police shootings such as in Ferguson and now most recently in Baltimore are not just the product of a good cop/bad cop dichotomy.  By that, the assumption is that only bad cops shot unarmed civilians or racial minorities.  Find a way to screen them out and the problem is solved.  Alas, this is a simplistic solution.
Yes there is individual racism that might motivate some of these shootings, but the problem is far larger than that.  The racism found here is rooted in something larger–the social injustices of American society.  It is about the huge income and wealth gap between Black and White in America.  It is about the educational achievement gap, and it is also about the gap in the demographics of the American population and who is actually elected to office.  The core problem here really is a political economic one.  African-Americans and Latinos, for example, have largely been excluded from the  political structure in the United States and one can argue that the excessive use of political force against them is really the most direct symbol or sign of how the government and society use its power to oppress them.
But even beyond the institutional racism that may be at play here, one needs to consider other factors that may influence why so many people–and not just people of color–are shot.  Unlike in England where there are no police shootings of civilians, this country has a lot of guns in private and personal possession.  England does not.  America is one of the most heavily armed countries in the world.  We are the fantasy world of the NRA where they seem to think if everyone is armed like in the good old wild west of yesterdays then everyone will be able to protect oneself or others.  Guns deter them seem to believe.  They have forgotten though that the old days of the west were violent, and that is what happens when you have guns–people use them, or at least there is a fear that they will be used.  I can appreciate the fear of police who approach people whom they do not know whether they are armed or not.
But yet another issue here is the nature of policing.  Policing is not about roughing up people–it is about interpersonal skills, communications, and problem solving.  Policing now requires  skills more closely approximating negotiator and not a solder.  Yet too often police are badly or ill-trained.  Minnesota has some of the most stringent educational and training requirements for police in the country. Elsewhere across the USA a simple high school degree lets any Barney Fife put on a badge and carry a gun.  The skill of policing is in learning how not to use force, yet that has been forgotten by politicians whose message and arming of police over the last 50 years has been one emphasizing a war mentality.
What all this means is that the political economic exclusion of people of color from the political process, along with a society with too many guns and often bad police training may better explain than individual racism why so many shootings occur.

Saturday, April 25, 2015

The Death of Political Reform and Innovation in Minnesota Politics

Whatever happened to the spirit of reform and innovation in Minnesota government and politics?
            At one time this state was a leader in reform of all types.  We were once at the forefront  of government ethics and campaign reform, a leader in education innovation, and an agent of change when it came to health care policy among other areas.  But for a generation or more the state seams stalled, devoid of serous reform and instead caught in the grips of either incremental, none, or a reversal of course.  Why and how it did happen?
            First, think of the innovation and progress that marked the state from the 1970s on.  The state was at the center of creative ideas for education reform.  Open enrollment, charter schools, and magnets, many of these ideas originated in Minnesota.  While yes, some of these reforms have turned  out to  be less successful than hoped, but they did represent bold experiments with education.  Similarly, Minnesota was at the center with the creation of managed health care and HMOs as ways to increase access and decrease health care costs.  The state was once also a leader with programs to extend health care to children and the poor.
            Another area where the state was a leader was in addressing fiscal imbalances across a rapidly growing metropolitan area.  We know that nationally and in Minnesota there are huge fiscal disparities across the cities and suburbs when it comes to funding many services, especially education, and there are also many problems regarding unplanned growth and the siting and placement of low income housing and the residential discrimination that comes with that.  Measures such as the Fiscal Disparities Act and the creation of the Met Council were supposed  to address these problems.
            And then there is the basic area of campaign finance, ethics, and political reform.  Yes recently the state did pass legislation expanding early voting, but with this notable exception, serious reform  ended a generation ago.
             The high point was 1994 when the Senator John Marty pushed through a package of reforms that placed Minnesota at the political forefront.  Minnesota had a first-in-the-nation ban on lobbyist gifts to legislators, limits on contributions from PACs, lobbyists, and big donors, spending caps tied to participation in public financing, a political contribution rebate system, and among the best disclosure laws in the country for political spending, lobbyist, and legislator conflict of interest.  The state attracted interest from across the country as a model for how to run clean government.  But then something funny happened–reform ended.
            Legislators, lobbyists, and special interests hated the Marty reforms.  They missed the lobbyist paid-for-parties and junkets, contributors did not like the disclosure of their activities, and legislators hated having to disclose all of their personal financial dealings and not being able to accept gifts in return for doing people favors.  It seemed all the politcos just did not like the idea of  a democracy where the voice of the people ruled and where public officials were accountable to voters.  So the legislature and the governors since then have simply ignored reform.
            It first started in the late 1990s when Democrats in the Senate fought hard to repeal or modify the gift ban law.  It began with “You really can’t buy a vote with a cup of coffee” statement and continues today with assertions that the lack of civility and increased partisanship at the Capitol is caused by the inability of legislators to get drunk together at lobbyist-sponsored soirees at the Kelly Inn.  It then came with refusals to act on other reforms being enacted in other states.  Proposals for  conduit fund disclosure, limits on contributions to parties and caucuses, increased lobbyist disclosure  both in terms of dollar amounts and regarding what specific legislation lobbyists were talking to legislators about.  The tobacco settlement and disclosure of their documents revealed a vast circumventing of ethics laws, showing how special interest money found its way into the private businesses and charities of legislators.
            Proposals to create a non-partisan redistricting commission were rejected, as were laws to declare it a conflict of interest for legislators to sponsor or vote on bills that favored parties they accepted contributions from.  Revolving door legislation to restrict  legislators from cashing in on their connections and friendships for a year after leaving office was also defeated in 1999, despite the fact that then Speaker Sviggum sponsored the legislation.  Later in 2005 then newly elected House member Tom Emmer introduced a package of campaign finance and ethics reform laws that I had drafted back when I was with Common Cause.  The Senate Democrats under Roger Moe refused to give any of the bills a hearing and in the House Republicans and Democrats worked together to kill them.  Consistently and in a bi-partisan fashion political reform was ground to halt.
            Not only has Minnesota refused to reform but it has moved backward.  At one point Governor Pawlenty killed the political contribution rebate fund and Republicans have consistently sought to abolish it permanently.  The gift ban law has been weakened, and in 2013 in a bill pushed by then legislator and now Secretary of State Steve Simon, campaign contributions to candidates were dramatically increased and disclosure laws weakened.  And there has been a bipartisan defunding and weakening of the Campaign Finance and Public Disclosure Board, rendering it statutorily one of the weakest and arguably least effective in country, despite the best intentions of its staff. 
            Of course, we should not forget the fact that the House and Senate Ethics Committees are largely partisan and ineffective and have long since lacked the will or desire to police the behavior of their members.  And we should not forget that we have a state legislator who  is also chair of the Iron Range Resources and Recovery Board, taking a job with a group that lobbies the legislature.  The IRRRB is also being investigated for making partisan patronage decisions in making economic development loans.  Finally, we should not ignore, as the Pioneer Press reported, that since 2002 60 ex-legislators have served as lobbyists or that across the state of Minnesota many local governments do not have binding ethics laws that regulate the behavior of local officials.
            What is all of this result of this assault on political reform?  First, Minnesota has fallen to the back of the pack when it comes to reform and ethics.  The best accounting of the current sorry state of Minnesota’s political ethics laws comes from the non-partisan and well respected Center for Public Integrity.  In its 2009 study on legislative financial disclosure laws, Minnesota receives an F grade, coming in 40th among the 50 states.   In 1999 the same study ranked Minnesota 35th and in 2006 39th.  A steady fall.  Minnesota is deficient in the range of disclosure it asks of legislators and also in terms of them updating that information.  A second 2012 study by the Center measured political accountability and risk of corruption in the state.  Minnesota received a D+ grade, finishing 25th among states.  Notable in this study, Minnesota receives a D- when it comes to effective conflict of interest laws, a D on political financing, and an F on lobbyist disclosure.  Minnesota simply stinks when it comes to political reform. 
            The second result of this failure to reform is an entrenching of special interests in state politics.  Both the Republicans and Democrats have their donors and special interests that entrench political positions, exacerbate polarization, and make political compromise near impossible.  In 2014, $64,000,000 was spent by lobbyist principals to influence legislation at the Capitol.  Combine that with political contributions to candidates, parties, and caucuses, and independent expenditures, and in excess of $80,000,000 or nearly $400,000 per legislator was spent in 2014 to affect legislation or state elections.  No wonder nothing can get done at the Capitol, it is locked down by special interest money that makes it impossible to act.  This is why Minnesota has had two shut downs in the recent past and why it now appears possible that the state is hurling toward another.
            The collapse of political ethics and government reform in Minnesota is directly connected to its failures in governance and why it is no longer a reformer in other areas in the way it once was.  MNSure might be a success when it comes to the number of people who get insurance, but its rollout was a mess and the only reason we have this reform is because of Obamacare.  The old education reforms of charter schools and open enrollment had produced new racial segregation and failed to address the achievement gap because they were not improved upon.  The Fiscal Disparities Act has been gutted and the Met Council weakened and turned into noting more than a patronage tool for governors and a developers.  Minnesota has a failed budget process that is again repeating itself.  And it is unable to make badly needed reforms to infrastructure funding and  local government aid.
            What reform has come down to in Minnesota is money. Republicans seem to think reform is simply cut taxes or spending.  Or in the case of education, Republicans, along with Terri Bonoff, attack teachers' seniority or unions or otherwise bleed schools or other institutions with the idea that less money will force reform.  Contrary wise, often Democrats think that simply more money is the solution.  More money  for education, for example, is needed, but how that money is spent and for whom are more critical issues.

            So reform and innovation is largely dead or un-creative.  Dead because reform got caught in a partisan  crosshair and dead because the reforms most needed--government ethics and money and politics--stalled.