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.