Friday, April 22, 2016

Trump and Clinton are the Face of What is Wrong with American Politics

There is something wrong with American politics if Donald Trump and Hillary Clinton are the
presidential nominees for the Republican and Democratic parties.  Their candidacies speak both to the flaws of the presidential campaign selection process, the parties, the media, the substance of policy debate in America, and even to them as individual candidates.
Let’s start with the fact that both Trump and Clinton are horribly flawed candidates.  If all the polls are correct, they are the two most unpopular individuals to potentially get  their parties’ nominations in the last 40 years.  For both, more than half of those surveyed indicated that they do not like them or would not vote for them, potentially suggesting a race where significant numbers of voters stay home or hold their noses and vote for the lesser of two evils.  In a normal year with good choices neither of these candidates would get their party’s nomination and if they did, would be trounced by the opposition.
By the time the primary season is over barely 10 million people will determine the party nominees.  We have super-delegates, caucuses, and arcane party rules that make no sense, rendering it less than a fair democratic process to select party nominees.  These rules make the Electoral College seem fair and intelligent by comparison.  What is clear is that the primary process is unfair.  Trump and Sanders are correct–the process is hugely rigged and controlled by insiders, insulating the party against the change and reforms that are needed.
For Trump, his racist, sexist, and jingoist world view, his near vacuous policy stances, and his overall simplistic political views are embarrassing and they will do little to help the white working class who are his core supporters.   Trump’s claim to fame is his mastery of the media and his ability to bluster and pout his way over others.  He does well in a year where his part has abandoned working and middle class America and has embraced a plutocratic vision of America.  He talks a good game to help the people the GOP has left behind but offering many of the same policies that put the USA into the terrible shape it is.  Moreover, his stance on many social issues is simply the  same as what many Republicans have advocated for years, but it says it more clearly.  For example a few weeks ago when he said and then retracted his statement that women should be punished for having abortions, he was saying no more than really what many of the extreme pro-life really imply when they want to make abortion illegal.  Trump is both the logical extension and death of the Republican party.
For Clinton, yes sexism is part of her problem but certainty not every criticism of her is sexist. She tried this argument against Obama and it failed then.  She has a real credibility problem, consistently espousing positions that she repudiates when it seems politically convenient.  In 2008 she moved to the left when she say the party and Obama moving that way, she is doing that again this year with Sanders. But even if that is not true, face it, she embodies a neo-liberal corporate perspective on the world that is reinforced by a rather hawkish foreign policy perspective that is more classically found in Republicans.  Face it–Clinton is not a progressive. Yes she and her supporters like to point to a 92% voting agreement between her and Sanders in the Senate.  That proves nothing.  Given the polarization, almost all Democrats votes together nearly 90% of the time.  Moreover, that 92% reflects votes on issues on the agenda, not ideological views on where candidates stand or how they would vote on issues if they could set the agenda themselves.  Overall, Clinton’s selection kills off the future of the Democratic Party ready to be inherited by Millennials who see no good reason to support her and who will walk away from the political system if she gets the nomination.
Taken together, the choice between Trump and Clinton is that between two establishment elites who have marketed their personalities to the top of their respective parties.
Notice I say “marketed.”  The two have not so much campaigned as marketed their campaigns.  In fact, on of the main problems this year with the 2016 elections is the degree to which marketing has replaced politics and the news, and ideology has replaced facts. Look at the coverage by FOX, MSNBC, and CNN for example.  They are no longer covering the news so much as they are marketing it.  The debates and their political coverage–the issues the cover, the slants on facts–all reveal a bias in favor of how they can sell the news for profit.  This year the mainstream media, including the NY Times, and the Washington Post, abandoned all pretense of objectivity.  They created Trump because he sold advertising and ratings.  Recent studies point to all the free media coverage given to Trump and how little to Sanders.  We saw that in the repeated attacks on Sanders, in how they keep wanting to declare him dead.  Even such liberal stalwarts as Paul Krugman write less with authority and more with his biases showing.  He writes as a privileged Baby Boomer clueless to what Millennials and real people think and feel.
Part of the reason the mainstream corporate media has so misunderstood this years elections is because of their corporate and political biases, but also because of their inside the beltway perspective on the world that insults them  David Brooks recently confessed that he never understood the degree to which Americans were hurting and how they contributed to the populism fueling Trump and Sanders.  I guess it is kind of hard to see economic hardship when you vacation in the Hamptons,  own the Mar A Lago in West Palm Beach and are worth billions, or dwell in Chappaqua, NY and make $28 million per year.
The media have not only missed how the two parties have largely ignored most Americans, but it has missed the power ful generational forces, the polarization, and other trends driving American politics this year that distinguish it from last year.  They have largely assumed the present year is no different than the past.
But the media marketing of politics goes hand in hand with the candidate marketing of their views, and their surrogates doing the same thing.  Truth seems to be a major victim this year along with sanity and thoughtfulness.  Candidates and their surrogates spew and emote over inconsequential things, pushing interpretations of facts into the realm of fantasy.  “Liar Liar” and truth meters are working overtime.  I have also seen too many people I know better move way beyond offering cogent discussions into politics, demonizing those who support rivals (even of the same party) as stupid or worse.
There is something just wrong with our political system this year and Trump and Clinton are the face of all that is flawed and the are really a by product of all that has gone wrong.  Realistically, can’t we do better than this?

Sunday, April 10, 2016

Inconvenient Federalism: The Dangers of States’ Rights and Travel Bans

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

The Republican and conservative call for states rights and federalism is a creature of the 1970s rooted in two issues.  The first is a reaction to the expansionist federal government during the New Deal under Franklin Roosevelt and the Great Society under Lyndon Johnson.  Both were  liberal enterprises that significantly expanded the role the federal government in ways that conservatives and Republicans did not like.  The other call for federalism was in reaction to the liberal Supreme Court policies of the Warren Court which expanded constitutional protections to a host of issues, including criminal due process, civil rights, privacy, and eventually under Chief Justice Warren Burger, reproductive rights and abortion.

The call for states rights and federalism was an effort to limit the federal government’s power, at least its liberal bent.  Let states do it, so the claim is, and they will do it better.  They are the laboratories of democracy, capable of innovating and more in touch with their local needs and people.  States’ right in theory is about local democracy, ostensibly at least.  In reality, the belief among many Republicans back in the 1970s when the “New Federalism” was first championed, and even today, was that states rights would weaken the national government, undo the liberal agenda, and allow for conservative outcomes to prevail.

In many cases federalism did work.  A weakened national government meant states could again pass anti-abortion, anti-gay, and just about any other anti-something legislation that they wanted. Yet it was an inconvenient and inconsistent  federalism.   When Reagan appointed Antonin Scalia to the Supreme  Court and for the last 30 years when he and it became a reliable institution supporting conservative outcomes there was no complaint about the federal government.  The same was the case when Bill Clinton signed welfare reform, the Defense of Marriage Act, or when George Bush increased federal powers to wage the war on terrorism.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutional a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law.

But now there is yet another face to federalism that brings mixed blessing to conservatives and Republicans. Consider on the one hand decisions by the states or North Carolina and Mississippi to pass bathroom legislation restricting transgender individuals to use facilities that correspond to their gender birth.  Or Indiana’s recent decision to place new restrictions on abortions.  This is clearly what state righters had hoped for.  But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to tow the policy line.  Doubtful this is what states’ rights advocates envisioned.

But there is something dangerous with this new federalism–it invites retaliation or use for less than noble reasons, and thus is not good news for Democrats. At what point will North Carolina or Mississippi retaliate against Minnesota and issue its own travel bans?  Or what if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.  Freedom and equal opportunity means freedom equality of opportunity for everyone, regardless of where they live.  This is what E Pluribus Unum is supposed to stand for.

The new federalism movement is both a failure when one thinks of nationalism and building a UNITED States of America, but is also showing how the states’ rights movement has not lived up to what many conservatives and Republicans envisioned.

Tuesday, April 5, 2016

Bathroom Politics and Transgender Discrimination

Prejudice always seems to start in the bathroom.  First it was the separate but equal doctrine that
forced African-Americans to use segregated facilities, including bathrooms.  Then it was Phyllis Schlafly and those opposed to the Equal Rights Amendment for women who raised the fear of men using women’s bathrooms as a way to defeat the amendment.  Opposition to gay rights was flamed by visions of sexual predators lurking around bathrooms. Now it is the opponents of transgender rights using the bathroom as a way of furthering prejudice by supporting legislation requiring individuals to use bathrooms designated for them based on their birth gender.

Yes privacy is an important legal right in America and should be respected.  Yet often times concerns of privacy masked underlying hostility and discrimination.   But privacy claims too often are incorrectly are invoked to thwart another powerful legal claim–the right to equal treatment.  When one looks at the Minnesota House bill HF 3396–The Bathroom Bill–requiring individuals to use the bathroom that corresponds to their birth assigned gender, it is clear that the proposal should be considered unconstitutional under both the US and Minnesota Constitutions, and illegal under both federal and state law.

The Fourteenth Amendment’s Equal Protection clause declares that “ no state shall deny to any person within its jurisdiction "the equal protection of the laws.”  While originally adopted after the Civil War to prevent discrimination against African-Americans, the Supreme and lower federal courts have used the Equal Protection clause to apply to many forms of discrimination, including that based on sex.  Courts have also used the Equal Protection Clause to address discrimination against gays and lesbians, and in recent years it has been invoked to protect transgender individuals.  In  Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a federal court of appeals ruled that the termination of a transgender person by the State of Georgia because she was transitioning from one gender to another was a form of sex discrimination that violated the Fourteenth Amendment.

The Minnesota Supreme Court has yet to adjudicate and rule on a transgender discrimination  claim under the state constitution.  Were it to do so it would reach arguments similar to that in Glenn.  The reason is that in cases such as State v. Russell, 477 N.W.2d 886 (Minn.1991) the Court has argued that the State’s Equal Protection Clause effectively provides as much or more exactly  scrutiny or protection against discrimination when compared to the US Constitution. If that is the case one can make a strong argument that the Bathroom bill also violates the Minnesota Constitution.

Turning to statutory claims, Title VII of the 1964 Civil Rights Act bans workplace discrimination based on among factors, sex.  The law has been invoked to prohibit discrimination against transgender individuals.  The basis for applying it that way started in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), where Justice Scalia ruled for the Court that title VII applies to any form of sex-based discrimination.  Discrimination against transgender individuals is sex-based.  In cases such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004),  Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), and Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), three different  circuits of the federal courts agreed that Title VII applies to transgender discrimination.

Most directly and recently, in January 2015 Deluxe Financial Services settled a Title VII case arising out of the company and its employees harassing a transgender person including forcing the individual to use the bathroom as determined by her birth gender.  The federal Equal Employment Opportunity Commission had ruled in favor of the transgender person saying the company violated Title VII of the Civil Rights Act of 1964 by subjecting her to “a hostile work environment and disparate treatment because of her sex, including because Ms. Austin is a woman who is transgender…”

Finally, at the state level, the clearest indication that the bathroom bill is illegal resides in the how it seeks to amend the Minnesota Human Right Act (MHRA) which, among other things, bans discrimination based on “sexual orientation.”  HF 3396 explicitly changes that law to create a bathroom exception. The Minnesota Supreme Court in Goins v. West Group, 635 N.W.2d 717 (2001) the Minnesota Supreme Court adjudicated a claim that a company had violated the Act when it required a transgender person to use the bathroom that corresponded to her birth gender. The Court ruled no in a bizarre case.

On the one hand the Court declared that the MHRA defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness,” therefore suggesting that a transgender individual may make out a potential claim under the Act.  However the Court then went on to argue that the employee had failed to establish that she had a right to use the bathroom designed for use by her biological gender and therefore her sexual orientation claim failed. Logically the case made no sense–the case was not about a transgender person wanting to use the bathroom designed by her birth gender and whether she had a right to use it. Goins is ripe for reversal and that too in part explains the reasons for the Bathroom bill.

Overall, there are strong reasons to think that House Republican Bathroom bill is legally suspect for several reasons at the federal and state level.  One should not let false claims of privacy  trump civil rights.  Prejudice has no place in the bathroom.

Saturday, April 2, 2016

Go Wisconsin! The Coming Presidential Primary Showdown

Unlike Minnesota, Wisconsin matters in presidential politics and we shall see that again this Tuesday
.  In so many ways the primary there is significant, portending the direction that four presidential campaigns will take and whether the Dump Trump movement or the momentum of the Sanders’ campaign will continue.

In presidential general elections since 1976 Minnesota has reliably voted Democratic in every presidential election and it probably will again do so in 2016.  Were this a seriously contested state that the Democrats had to defend then it is going to be a bad year for them and their presidential candidate.  Wisconsin though is a presidential swing-state, although a weak one. Democratic Presidential candidates have consistently one it since 1988 but the margins of victory are often close and Republicans have campaigned hard to flip it.  Come this fall the presidential nominees will be there but not in Minnesota.

But Wisconsin matters too in a different way.  This coming Tuesday the Wisconsin presidential primary will matter for both parties.  Consider first for the Republicans.

Dump Trump
Critical to the Dump Trump movement is beating Trump in Wisconsin.  The establishment Republicans have pulled out all the stops to support Cruz in the hope of preventing Trump from winning.  Why is Wisconsin so critical?  Right now if Trump continues on his current path of winning delegates he will either have enough to win the nomination on the first ballot at the Republican National Convention or be close.  If he has enough delegates in the first round to win the nomination then it is over–he is the GOP nominee.  If he falls short of a majority in the first round of voting then under most state laws or party rules, the delegates pledged to him can vote for whomever they want in the second and subsequent rounds.  At this point it is a brokered or contested convention and anyone can get the nomination.

The strategy behind the Dump Trump is to halt his delegate winning and Wisconsin looks like a good place to start.  Right now we know that mathematically only Trump can win enough delegates for a first round victory; it is impossible for Cruz or Kasich to do so.  Supporting Cruz in Wisconsin is something that establishment Republicans are doing not because they like him but because they dislike Trump more.    While the Dump Trump movement by establishment Republicans has so far failed they are hoping now they can succeed and eventually derail him from winning the nomination.

Whether this strategy will work is yet to be seen.  If it does, the convention will be a fight that parties normally do not want shown.  They want conventions to be four day infomercials for them.  They do not want to show off infighting.  But more importantly this year, a brokered convention will be ugly.  It will be the party establishment telling the voters in the primaries and caucuses that they got it wrong and that the candidate with the most delegates is not the one who should be the nominee.  In addition, if they stop Trump, who is the nominee?  I doubt Cruz, and Kasich is a long-shot.  Who will the party support and where will the Trump voters go?  Where will Trump go?  I doubt away quietly.

Sanders’ Surge
Clinton built up a huge lead with Super Tuesday and the Mini-Tuesday on March 15.  But since then Sanders has done very well, winning almost all of the states since then.  Some argue that Clinton’s best states were in the south and they are now behind her and that the path is there for Sanders to win the nomination.  Mathematically, he can.  If he can win approximately 58% of the remaining delegates he wins the nomination on the first round.  In the last six contests he has won by an average of about 58% and in northern states his winning margin is about 56%.  Right now Clinton has 1,266 pledged (non-super) delegates, Sanders has 1038. Yes Sanders is 228 delegates behind.  He has been closing for a couple of weeks while Clinton has been again assuming she is inevitable and turning her attention to Trump and not sealing the deal for her nomination first.

Polls at one time had Clinton with a 20%+ plus lead in Wisconsin.  Now polls suggest Sanders is leading.  This follows a pattern similar to other states that Sanders has won.  Wisconsin was supposed to be part of Clinton’s northern firewall.  It does not look that certain for her now and some rumors are that she is conceding the state to defend New York in a couple of weeks.

Sanders’ supports have many reasons to feel confident about Wisconsin.  Yet a word of caution–under Scott Walker and the Republicans the state enacted a very tough voter ID law.  It will be curious to see what impact that law has on students and Millennial voters.  The irony here will  be that if Clinton’s holds on in Wisconsin it might be courtesy of restrictive Republican voting laws.  Some also speculate that in a close contest Clinton may have the edge with super delegates.  Thus, Clinton could win not necessarily by winning the most delegates, states, or voters (although more Democrats have voted for her than Sanders so far) but through super delegates and restricted voting laws (keep in mind that Clinton wins in states too with closed as opposed to open primaries).

Mainstream pundits still dismiss Sanders.  They should not.  He can still mathematically win and in the last two weeks he has out-polled Clinton and won more delegates.  He is forcing her to defend  New York and that is something that many thought unthinkable.  Yet NY could be won by Sanders.  Clinton will not do well upstate NY and NYC has lots of very liberal voters–both Millennial and not–who might go for him.  Polls are tightening there.  A Wisconsin victory on Tuesday creates more momentum for Sanders and narrows the delegate gap more.  Never assume inevitable.

Caucus v Primary

Finally Wisconsin matters because it is holding a primary as opposed to a caucus.  In 2008 the turnout in the Wisconsin primary was 36.5%; in 2012 it was 30.9%.  Compare to Minnesota where  caucus turnout was 7.2% in 2008 and approximately 2.5%   This year again about 7-8%  of the voters caucused on March 1. Which system matters more to more people?