Sunday, February 28, 2016

Hillary Clinton’s Southern Strategy

If ever there were a state perfect for Hillary Clinton’s 2016 presidential run it was South Carolina.  In fact, looking forward to Super Tuesday, it is a demographic well suited for her.  It is a repeat of Nixon’s 1968 southern strategy, but with a twist.  And that may be a problem for both her and Sanders.

Much has been made of the fact that Iowa and New Hampshire were demographically perfect states for Sanders in that they were heavily white.  Sanders has struggled to break through to people of color, more so with African-Americans than Hispanics, because his message has been more about class than necessarily about race and sees the politics of rich and poor as the defining force uniting the party and his coalition.  Clinton has made her campaign that of unity via identity politics, drawing heavily upon the current coalition of forces that define the Democratic Party and which elected Obama in 2008.  Sanders is challenging that coalition, seeking to build a different one that refines the party along generations and class.

It is no surprise that Clinton did well in South Carolina.  It is a state Democratic Party heavily African-American and relatively conservative.   A perfect demographic for Clinton.  Sanders failed to make many inroads into the African-American community and largely also fell flat with  young people and college students who did not show up.  This is something for him to worry about in the future.

But looking at Super Tuesday Clinton should do well in the Southern states of Arkansas, Georgia, Oklahoma, Tennessee, and Texas. They look more like SC than they differ.  But Sanders also has his states of Colorado, Vermont, Massachusetts, and Minnesota.  The point is that there is a real possibility that both Clinton and Sanders will do well where they are expected to do so, failing where one would also assume so.  But overall, Super Tuesday’s demographics favor Clinton.

In some ways the Clinton strategy is a twist on the Nixon southern strategy, or on challenging the notion that Democrats no long can win in the south.  Yes Clinton will do well in southern primary states, but there is no evidence that she will do well there in a general election.  Her husband had mixed success in the south in 1992 and 1996 and 20 years later, it is even less likely that the south will vote Democratic in a presidential election, especially for Clinton.  White conservative southerners are probably not going to vote for her no matter what.  Thus, Clinton is doing well in states where the Democrats probably will not win or even challenge as a rule during the 2016 general election.  Winning the south does little except to rack up delegates to  get the nomination.  As I constantly point out, the issue is how (Democratic) candidates do in swing states among swing voters compared  to Republicans.

This is important because the race for the Democratic nomination is far from over, even after this Tuesday.  Clinton has some of her best states up front here and if Sanders can survive the demographics look better.  However, and this is the challenge–he does need to figure out how to reach out to people of color much in the same way that Clinton needs to reach out to liberals and to young people.  Neither of them can win the presidency without making a credible move to winning over half of the Democratic Party.  So much has been written about how divided or torn up the Republican Party is, but Clinton and Sanders too are showing a powerful demographic split within their party.  But more importantly, both need to reach out to the swing voters, and here there is some evidence that Sanders does better based on the first four contests.

Neither candidate can assume that the supporters of the other will just naturally come along and vote for them if the others get the nomination.  This is a bigger problem for Clinton.  Those supporting Sanders are either less likely to vote if she get the nomination, or they are independents, with whom Clinton has a difficult time, especially in the critical swing states.  Conversely, Sanders were he to get the nomination, would perhaps benefit from the fact that older persons are more likely to vote and that people of color are solid supporters of Democratic candidate in general elections, and would probably be unlikely to vote for any Republican.  But as we know, turnout among people of color  is often a problem, and it is not clear how well he can motivate them to vote.

Overall, Clinton did exceptionally well in SC and should also do well in pursuing her southern strategy, but it is not clear that such a strategy is a winning one for the 2016 election.

Monday, February 22, 2016

Bush-Wacked and Berned-Out: What We Have Learned About the 2016 Presidential Elections So Far

            Three weeks into the official start of the 2016 US presidential elections have produced a trove surprising and not so surprising results, along with a ton of misinformation.  So what have we learned so far?

The Bush Dynasty is over.  Six months ago received wisdom was that this election was going to be clash of political dynasties–Bush v Clinton–but that is just not the case. Jeb left the race for several reasons.  First he was a lousy candidate with weak media skills and no narrative for why he was running.  He had a ton of money but his campaign spoke either to the fact that money cannot by everything or that money misspent cannot buy votes.  Since 1980 a Bush has been a presidential or vice-presidential  candidate in  all but three elections (1996, 2008, 2012), although Obama did effecting run against a Bush in 2008.  The Bush brand has run its course, ruined in part by Jeb’s brother’s weak presidency and also by the fact that the GOP has moved further to the right than where the Bush brand lies.

It’s all Politainment.  Bush also lost because politics and entertainment have converged into politainment (politics + entertainment).  Presidential races are media events favoring candidates with the ability to look good on television.  This is Trump’s strength, nurtured by years of his own personal branding and television show.  Trump is only the latest candidate to show how mastering television and other multi-media forums is a big advantage.  This is also the election that the social media seems to have gone into overdrive, with Facebook campaigning taking on the new role of spinning in the way that only pundits used to.  One wonders how much of what is posted on Facebook is actually true, or done by real people.  The barrage of misinformation on the social media will soon raise questions about how much people can trust it and therefore, its utility as a campaign tool.

Trump is for real.  All of us wondered if Trump could transform his media presence into a get out the vote effort.  The received wisdom 20 years ago was that it was all about ground game and not just about the airwars.  They were separate strategies that had to be mixed to produce a successful presidential campaign.  Trump may be unique but he is redefining the rules, showing how media presence can be a winning strategy, generating its own ground game.  Barring the unexpected, his path to the party nomination seems likely.

But how popular is Trump?  Trump is polling about 30% of the Republican voters.  The best estimates are that 32% of the population describes themselves as Republicans.  Trump thus commands not quite 10% of the voting population.  Polls also suggest that he has high disapproval ratings among many voters, especially the swing voters.  This is important because were he to get the nomination it will be interesting to see who these swings vote for. In a race against Clinton (who has the second highest disapprovals), it will be a battle to see who these voters like least, and whether they will vote at all.

The anger and intolerance vote.  Historian Richard Hofstadter described the paranoid style in American politics that also prided itself on ignorance. Trump and Cruz are proving Hofstadter right, showing that there is an ugly side to American politics where I suspect a significant percentage of the populations still will not vote for women, people of color, members of certain religious faiths, and those with a grasp of facts.

The mainstream Republicans don’t get it. There is a base of the party that hates mainstream wimpy candidates like Bush.  They believe that running milk toast moderates such as McCain and Romney cost them the election and now they want purity.  The base is aging, refusing to change, seeing perhaps this election as their last hurrah to win.  The base of the GOP is demographically eroding and the party establishment is trying to figure out how to hold on.  As more and more mainstream Republicans endorse anyone but Trump they fail to see how that fits into the strategy of Trump to be the anti-establishment candidate.  Additionally, fascinating in this election how the “What’s the Matter with Kansas?” strategy that the GOP has run for a generation or more is now killing them.  By that, for years the GOP has used social issues to get working class to vote for them, while at the same time pursuing a plutocratic strategy that favors the rich.  Working class whites have seen little that the GOP have done for them and thus, why should they support them anymore?

Democrats need to worry about turnout.  Republican turnout is way up so far and Democratic turnout below 2008 levels. Sanders needs bigger turnout to win but more importantly, if primary and caucus turnout is predictive of general election turnout then no matter who gets the Democratic nomination there is cause to worry about the Democrats delivering their base.  Why is turnout so bad for Democrats?  Blame in party the party leadership who wanted to protect Clinton by not scheduling many debates or placing the debates on nights when no one watches them. The Democrat debates have produced less television and media coverage and therefore less turnout. Remember as noted above, presidential politics is politics and entertainment. (Politainment).   Presidential debates are like pop culture advertising for candidates and the Democrat party has done a terrible job advertising itself.

No Democracy in the Democratic Party. Who is ahead, Clinton or Sanders?  After three contests  Clinton and Sanders are tied each with 51 pledged delegates.  Add up the total votes cast for Clinton and Sanders in Iowa, New Hampshire, and Nevada and Sanders probably is ahead.  Yet Clinton has a huge super-delegate lead.  The media is quick to declare Clinton way ahead but in terms of grass roots earned delegates she is tied.  The story this year is about the lack of democracy in the Democratic party and how there will be a coming battle to scrap the super delegates. They look like elite efforts to thwart popular will.  Super-delegates are as anti-democratic as the Electoral College.  In a fair primary process driven by the people the race to be the Democratic nominee would be wide open.

Gender, Age, Class, and the Generational Divide.  Clinton wins female voters over the age of 40, but not younger.  There shows a generational split and a declining importance of old style gender politics characteristic of the Baby Boom generation.  In the same way that the GOP is facing a demographic and base revolt, so too is the Democratic Party. The Boomers are aging out, the Millennials are taking over, and that change is pushing the party in a new direction.  Clinton may be the last Baby Boomer candidate to head the Democratic party.  The future is not with her wing of the party, but with a new group.  Think of Sanders not in terms of his age but in terms of the shift he is bringing about–a retreat from simple identity politics and a re-emergence of class as factor to mobile voters and provide a focus for public policy.

Finally, it’s a long way to November! We have only just started campaign 2016 and no doubt other new trends will emerge.

Saturday, February 13, 2016

Sanders and the Millennials: The Old Left Meets the New New Left

Clinton has a generational problem more so than a gender problem.  Polls suggest that for Democratic voters under the age of 30 they overwhelming supporting Sanders over her.  For college age students, it is approximately an 80%/20% split.  Women under the age of 45 clearly prefer Sanders to her, and in the recent New Hampshire primary, the only age group Clinton won were those over age 65.  Even among African-Americans and people of color, the Washington Post reports that her commanding lead is slipping, and one might surmise if the data is crunched, the racial divide too has an age dimension to it.  Why is Clinton so unappealing to younger voters?  Conversely, why is Sanders at age 74, someone even older than Clinton (68), the darling of Millennials?  The answer is generational, but also resides in the nature of the progressivism Sanders and Clinton embody.

The Sanders-Clinton schism is a replay of the Old Left/New Left battle lines that surfaced in the 1960s.  The Old Left was the politics that emerged in the 1930 with FDR.  The Old Left drew some of its inspiration from Marxist theories of class struggle.  Politics was about social justice, the battle between rich and poor, and it involved labor unions, the working class,  and workers.   It was about fighting for economic equality and democracy, seeing political unity in the shared struggle of class.  In contrast, the New Left was the politics of the 1960s.  It was born in the student campus movement against the Vietnam War, and for civil rights.  The New Left was less about class than about identity politics, and it had stronger middle class roots than did the Old Left.  The Old Left and New Left both sought to transform American politics, yet their visions of what a revolution would look like and what would emerge were different.  The Old Left saw the revolution rooted in class struggle and transformation that would eventually achieve liberation for oppressed groups, the New Left focused directly on the liberation of groups because of their social identity.

Sanders’ politics is Old Left, Clinton’s New Left.  Or sort of.  Sanders’ talk of political revolution is primarily that of economics and class, Clinton’s that of identity.  Sanders speaks to the problems of economic inequality, the problems of capitalism, and the need to change the basic structural inequalities (corporate power and money and politics) in American society as a prerequisite to bringing about other changes.  American politics is so corrupted only a paradigm change will fix it.  Yes Sanders does discuss specific battles for freedom but they are part of a larger economic battle.  Women and people of color can only achieve so much identity freedom before class and economics intrudes to limit them.

Clinton is about identity politics and micro change.  She speaks well to specific groups, especially those who came of age in the 1960s and 70s.  Politics is less if at all about a unity in a shared class struggle but in appealing to coalitional interest group politics.  Political change is about empowering individual groups, the daily grind of groups using the official institutions of power to achieve change.  America is less fundamentally corrupted and can be incrementally reformed.

Clinton’s message resonates with those who were part of the 60s struggle who have seen some progress.  It appeals to the Black civil rights activists who saw success in their movement when Obama was elected and to Feminists who hope to see the same when a woman does the same.   It is also a message of middle class progressives, who have a stake in the political system, who are mostly benefitting, but really not struggling.  The New Left message as appropriated by Clinton is that slow reformism is the way to go.  Obamacare is a good first step, as is Dodd-Frank.  The political institutions are basically fine and just need some tinkering.  This is perspective of someone who is middle aged, middle class, and basically has made it within the political system.  The message of the haves.

 Yet Clinton’s  is not a message that appeals to a younger group not part of the 1960s.  To a group that sees a bleak economic future with limited job opportunities and large student debt, they do not look at politics from the comforted position of aging middle class baby boomers who have money, homes, and Social Security.  They see a world of inequality and limited opportunity, a world where while social identity in important, the major battles have been won and now one needs to win the struggle for economic inequality.  This is Sanders’ message.  The message of the have nots.

The Clinton/Sanders divide between New and Old Left plays out in other ways.  Clinton’s narrative is flawed for a new generation of activists coming up.  Much in the same way Obama represented a forward looking narrative that spoke to a new generation compared both to Clinton and McCain in 2008, Clinton is again looking backward speaking to an older generation.  She still talks of 1990s politics (“Before there was Obamacare there was Hilllarycare”), she ties herself to Obama, and she appeals to the old constituencies that were part of her husband’s coalition.  As one of my female Millennial students said to me: “Hillary is my grandmother’s candidate.  She does not represent me.”

While Sanders is old, his message appears fresh.   He looks to the future and not back to the 1990s. He talks to a rising generation about economic struggles that they face now and into the future.  He speaks to the future of the Democratic Party, seeking to engage and hold them into the future.  Clinton speaks to the Baby Boomers, hoping that she will be the last Boomer president before they transition out of power.

Sanders and Clinton are building coalitions around different generations, looking forward and backward, representing two different sets of interests and approaches to politics. The Millennials coming up are a synthesis embodying and sharing interests and messages of Old and Left politics, yet Sanders more so than Clinton seems to better capture the Millennial synthesis than does Clinton.

Thursday, February 4, 2016

Otto v. Wright County: Why the Legislature and the Counties Should Lose

On February 4, the attorneys representing Minnesota State Auditor Rebecca Otto filed suit contending that the State Legislature’s law allowing counties to secure private audits instead of using her office violated the State Constitution.  In her complaint she alleges that the law essentially privatizing audit functions violated the state constitution in two ways: Either it was a separation of powers violation stripping her office of its “core state functions,” or the legislation violated the constitutional single-subject rule in that it was tied together in a law that did a host of other interrelated things.
The Auditor’s arguments parallel the claims I made in a June 8, 2015 Minnpost op-ed of mine.  There my focus mostly was on the separation of powers claim.  I have enclosed the original piece below.  (Please note:  I have taught state constitutional law since 1992).
The Auditor’s complaint builds upon my state case law arguments by emphasizing the historical role of the auditor back to the territorial era in performing audit functions.  This type of argument, while not dispositive, adds a strong argument suggesting that when the Minnesota Constitution was drafted its Framers original intent was to give the State Auditor core constitutional functions that included the type of auditing at dispute in this case.   Though this complaint does not make it, one can also cite case law from other states to reinforce this type of constitutional argument.
The more second single subject argument is smart.  It builds off of state case law declaring legislation shall embrace a single subject.  In cases such as Associated Builders and Contractors v. the Honorable Jesse Ventura the Minnesota Supreme Court has taken an increasingly hard line against allowing the legislature to create bills that cobble together an unrelated collection of provisions.  Other states too have single subject rules and courts across the country have ruled that the purpose of these constitutional provisions is to prevent the type of legislative shenanigans that was evident with this bill.
While former Minnesota Supreme Court Justices such as Paul Anderson have argued that the single subject rule should require the entire law to be stricken, a majority of the Court has not said that.  Why is this significant?  If the Minnesota Supreme Court wants to avoid a constitutional confrontation between the Auditor and the Legislature they can use the single subject rule simply to strike down that provision, thereby avoiding the issue of whether the Legislature actually over-reached in its privatization.
Here is my original Minnpost op-ed.

Resolution of the budget standoff in Minnesota has come down to the status of legislation that guts the state auditor’s office. Whatever the final resolution of this dispute, one thing is clear: The legislation is foolhardy and probably violates the Minnesota Constitution.

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 that tax dollars are spent 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 never have signed a bill that allowed for this. Nothing against private auditors, but this is a duty for the state auditor. The privatization will cost taxpayers more in the long run – as is typically the case with many privatizations. I pointed this out in a MinnPost op-ed back in 2011.

Conflicts with two articles in the Constitution
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned – the provision is probably unconstitutional, conflicting with both 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 the Legislature, 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 Supreme 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.

More separation of powers rulings
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. Other state courts have reached similar conclusions regarding separation of powers and legislative efforts to strip constitutional offices of their powers.

The constitutionality of the legislation to privatize some of the auditor’s functions resides in how far the Legislature may act to prescribe the functions of that office. This issue must be considered in light of the question: To what extent does this law impede the core duties of the auditor? Given past precedent, there is good reason to conclude that this privatization is unconstitutional and in a lawsuit the auditor would likely prevail.

Wednesday, February 3, 2016

An Historic Epic Blog About the Iowa Caucuses that will Amaze You, Blow Your Mind, and Make You Drop Your Jaw

Actually no, this blog displays none of these characteristics or adjectives.  Yet looking at social and mainstream media postings since the Iowa caucuses one would think that every posting or idea drooled out by anyone to describe what happened on Monday was historic, epic, amazed you, blew your mind, and made your jaw drop.  Frankly, none of this is true and in many ways what happened in Iowa on Monday and afterwards is or was relatively mundane and predictable.  So how do we understand the Iowa caucuses–who won or lost–and what will happen now or next?

The Iowa Caucuses are about three things: the expectation game, raw numbers, and then the spin.  It almost does not matter how well you really did, it is about whether you met expectations or not.  Do better than expected you are winner, worse than expected a loser.  The real number counts or delegate counts seem unimportant.  Momentum or spin from Iowa is based on the expectations game.  Thus, Iowa is about also being a form of musical chairs or a variation of the television show the Bachelor–it is the start of an elimination game that thins the heard until there is a winner.  For Democrats, the Iowa winner goes on to win the party nomination 2/3s the time, for Republicans it is 60% of the time.  Iowa is important and predictive, but not necessarily determinative and certain  in terms of what its results say.

In terms of the expectations, based on the latest polls before the caucus Trump should have won with Cruz second and Rubio a distant third.  Trump did not meet expectations with his results and is declared the big loser.  Of course the real losers are all those other Republicans who finished near the bottom of the heap next to the asterisk zone–including Bush, Santorium, Paul, and Huckabee.  The latter three have no dropped out, Bush might need to do so soon.  He spent $80,000,000+ to get 4,000 votes–approximately $20,000 per vote.  I am sure his supporters would have preferred the cash instead.

Yet Trump’s second place performance could be seen all along.  Many of us said that his challenge was translating his media presence and name recognition  into real numbers when he had no ground game.  His second place performance and Cruz’s first place show the power of the ground game.  Yet Trump’s second place finish still demonstrates how well he did without spending much time working on getting out the vote.  In some ways he did better than he should have given his strategy.   Of course, Trump reacted badly to his loss, crying foul, and showing to a large extent that his main rationale for the presidency–he is leading in the polls–may be crumbling under him.  Yes he still leads in New Hampshire and nationally, yet now there is reason to think he is vulnerable.  Despite winning almost as many delegates as Cruz, he is seen as a loser and the media and spinners are treating him as such.

For the Democrats the two most recent polls before Monday had Clinton up by three and Sanders up by three, with margins of error approximately 3.5%.  The race was a statistical dead heat.  Clinton supporters spin it as a historic win for Clinton but given her 50 point lead six months ago, that she was challenged by someone who is not a Democrat and who declares himself a socialist, winning by three-tenths of one percent of the vote is not much of victory.  If this were a general election this margin would trigger an automatic recount before it would have been certified by a canvassing board.  As we know in Minnesota from the Franken Coleman 2008 race, election night counts are not final or accurate and are readjusted several times before declared final and valid. Additionally, as we saw with Romney and Santorium in 2012, the former was originally declared the winner only to have the latter prevail later on when the votes were finally adjusted.  Monday is  perhaps a win for Clinton, but it does reveal powerful weaknesses in her candidacy especially among younger voters.

For Sanders, it was a good showing. Again, don’t say historic.  Just because something  happens once does not make it historic.  For something to be historic it has to stand the test of history.  In six months Iowa may mean little or nothing or something completely different than what people think it means now.  For now Sanders either tied Clinton or came in a close second, winning almost the same number of delegates. He raised millions after the Iowa Caucuses and he heads into New Hampshire where he is favored. Yes, part of his advantage in that state is the close media market to Vermont, but no folks, NH is not a liberal state.  It is a political swing state that elects lots of Republicans.  It is not necessarily a natural home for Sanders.  Moreover, remember Clinton won it eight years ago after losing to Obama in Iowa.  Both Clinton and Sanders have lots to spin at this point, but in may ways Sanders comes out this week looking stronger for now

Certainly Clinton and her supporters point to polls regarding her firewalls in Nevada but more importantly South Carolina, but polls today cannot necessarily tell us what will happen in those two states in several weeks.  Those who say Clinton has a lock on voters of color need to understand that it is not an issue of her getting all their votes and Sanders none.  The same is true with Sanders and Clinton when it comes to young voters, or liberals, or women.  The issue is  how well each does in terms of holding and mobilizing their bases compared to one another.

So what do we learn from Iowa? Perhaps far less than we think and which should shock.  Trump, Cruz, Rubio, Clinton, and Sanders can point to expectations, real numbers, and spin all to support their arguments about the significance of Monday. We are at the beginning of perhaps a very long process where many things can change, including polls, public opinion, and a score of other variables that may impact the 2016 elections. But none of what happened Monday necessarily has or  will rise to the level of something that is historic and epic, that will amaze you, blow your mind, and make you drop your jaw.  To assert any of this is just trivializing hype and  should be treated as such.