Saturday, October 14, 2017

Governing by Executive Order: As Obama goes, so goes Trump

This was the week of  the Trump executive order presidency.  Frustrated with his own inability to
govern and work with his Republican Congress, Trump used executive orders to dismantle the Affordable Care Act (Obamacare) regarding contraception, minimum coverage for health plans, and subsidies for the poor.  If the Obama presidency is precedent, it is not clear that Trump has the authority to do all this.  Instead, one legacy of Obama may be passing on to Trump a weaker presidency when it comes to the use of executive orders.


As candidate, Donald Trump criticized Barack Obama for governing by executive order, bypassing Congress and instead leading by fiat. Now that Trump is president executive orders look good to him. Democrats lauded Obama’s efforts to do an end run around Congress, which Republicans condemned. Now the reverse is the case.

Consider first who has used more executive orders.  According to CNN, by October 11, into his first year in office, Obama signed 26 executive orders–the fewest of any president going back to Eisenhower.  Trump has already signed 49–the most since Lyndon Johnson and on pace to be more than any president since Franklin Roosevelt.  Trump has become the executive order president.  For his supporters this is no doubt good–it is a sign of taking charge and being a leader.  But the criticisms that applied to Obama apply to Trump–it is side stepping the Constitution or at the least,  it is illegal or demonstrates contempt for the concepts of checks and balances and separation of powers.

At least this is what many Republican attorney generals thought when Obama was president.  Presidents have no inherent powers.  Their authority derives from either Article II or the Constitution or what Congress has delegated to them via the Administrative Procedures Act and other laws.  Executive orders in many cases carry the force of law and once issued, especially if they go through  a rule making process,  cannot easily be repealed without going though a series of procedures.  When Obama issued executive orders regarding immigration and rules for power plants, Republicans successfully challenged them in court with decisions that limited presidents going forward.  Among the principles these lawsuits established  is that presidents may not use executive orders to sidestep laws made by Congress.

This may exactly be what is happening now with Trump. Unable to get Congress to do his bidding when it comes to repealing Obamacare, he is governing by edict.  In some cases the orders seek to alter Obama executive orders, in others they go against congressionally-authorized law.  But in both cases, Trump  needs to do more than issue an order.  No president, including Trump, can say  “Make it so” like captain Picard from Star Trek, and make it happen.  Already Democratic attorney generals are using the same tactics against Trump their Republican counterparts used against Obama.  Time will tell if the legal results will be the same.

Saturday, October 7, 2017

Gunfight at the Second Amendment Corral

Like it or not the Second Amendment exists and the Supreme Court has ruled that its language guarantees an individual right to bear arms.  Like it or  not , the best estimates are that 40% of US households have guns and there are perhaps 270 million guns privately owned in the country.  Like it or not, guns are not going away and even if the Supreme Court were to reverse itself and declare there is no individual right to bear arms, all the existing guns are not going away.  Like it or not, banning guns in a mass way will produce a firearms bootleg problem that will make alcohol smuggling during Prohibition look like child’s play.  Like it or not, for much of the country, guns are rooted in political culture of the United States–it’s God, guns, and the Constitution.
So what do we do after the Las Vegas killings?  There are no simple solutions even though there are the usual recitation of simple slogans that are more about political posturing in the next election than they are about real policy solutions.  We already are hearing talk from one side that we  need more gun control, with predictable opposition from the other side.  One side will say “Guns don’t kill people, people kill people” or the way to “stop a bad guy with a gun is with a good guy with a gun.”  The other side will embrace universal background checks to screen out criminals or those with mental illnesses, or will, as is now the solution de jour, a ban on bump stops for guns as a remedy.
The gun debate is complicated for two major reasons: the politics and the multifaceted nature of the problems surrounding the causes of gun violence.  The politics is about how the debate has been constitutionalized around the Second Amendment and weaving of guns within parts of the US into the very fabric of cultural identity.  Urbanites, northerners, and liberal-Democrats largely are clueless about this. Moreover, the gun debate has been defined by the NRA which has taken an absolutist position of the Second Amendment.  For many of its members, guns are the defining issue for them and they turn out to vote.  For the opposition, there is no equivalent.  The NRA has also captured the Republican Party, making guns, along with cutting taxes, the two defining issues for itself.  So long as the NRA and the Republican Party define their raison d’etat around guns, little will change in terms of the politics.
But even if the politics were to change, defining both what the problems with guns are and  what are the solutions is not easy.  Right now the media is hyperventilating over the NRA saying it could support a ban on bump stocks.  This is brilliant politics.  Banning the stocks will do little so long as assault weapons are available.  Gun manufactures no doubt love this proposal–instead of letting some people spend just a few dollars to modify a regular gun, make them spend more to buy a real assault weapon.  Moreover, the focus on bump stocks takes the political focus over other reforms, and the NRA looks outright reasonable in favoring the bump stock ban.  At best, a symbolic idea that solves nothing and which also plays well with some swing voters in 2018.
But what would actually work to curb gun violence?  This of course is complicated.  Part of the solution is understanding the underlying nature of the violence.  Yes, some of it is rooted simply in the availability of assault and other weapons and they do need regulation.  And regulation is constitutionally possible.  At no point has the Supreme Court said that reasonable regulation of some weapons is not possible.  Lower courts have upheld some regulations.  Not even in the case of the First Amendment has the Supreme Court said that free speech is absolute–time, manner, and place restrictions are possible, and not all utterances qualify as constitutionally protected speech.  There is nothing inconsistent in saying that possession of bazookas (which are arms) is unconstitutional, and the same is true for assault or automatic and semi-automatic weapons.  Such regulation might solve some problems but certainly not all.
Increased penalties for weapons use is not a solution.   There is little evidence, as I and others have show several times, that many people who commit crimes are rational actors deterred by the calculation of prison time.  Moreover, the experience and failure of mandatory minimum and three strikes laws demonstrates the futility of this approach.
The call for background checks, especially if instant and without some waiting periods, will solve only a small part of the problem, if at all. Do we screen for mental illness and past criminal behavior, for example?  When it comes to mental illness, are all who have a mental illness dangerous?   The American Psychology Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) lists hundreds of conditions that count as mental illness, with estimates that more than 42 million qualify.  To say that everyone with a mental illness is dangerous is a gross stereotype and demeaning.  Moreover, what is a mental illness?  Remember at one time the DSM listed being gay as a mental disorder.  Additionally, are all those with felony records dangerous, and what about the idea of people having paid their debt to society?  Finally, keep in mind that the Las Vegas shooter had no record of mental illness and no criminal record.  A background check would have done little to deter him.
Finally, what do we do about all the guns that are used in cases of domestic abuse, suicide,  crime, and street fights?  Yes guns make such killings and violence easier, but the underlying roots are located in alcohol and substance abuse, in problems surrounding poverty, or in cultural values about manhood, masculinity, and honor.    Decreasing the supply of guns will help, but there are underlying  socio-cultural problems at play. One hypothesis worth testing is the connection between areas that have high levels of alcohol dependency or poverty and gun violence. There may be other  correlations, but more research is needed and the NRA and the politics of guns has prevented that.
The point that is being made here is that the problems of guns are complex. The politics of guns makes solving the problem of guns impossible.  The problem of guns is in part availability of  some types of weapons and where, but it also about regulation of human behavior.  Guns do kill people, but people also kill people, and any viable solutions must disaggregate the variety of problems surrounding gun violence into viable policies that have identified problems and solutions.

Saturday, September 30, 2017

Trump, Lies, and Tax Cuts: Why they Will Not Help the Economy

Among the most enduring political-economic myths is the claim that tax cuts on the wealthy
stimulate the economy and will benefit all of society, including the middle and lower classes. This is the central claim of supply-side economics, and this is the logic behind the Trump tax cuts.  One might as well believe in the tooth fairy, big foot, and the Loch Ness monster.  The truth about taxes–especially income taxes on individuals and corporations–is that there is no correlation between tax rates and economic growth.  There is also no evidence that taxes serve as potent tools to encourage business relocation decisions. History has repeatedly proven both of these claims wrong, yet both ideas fails to die, enduring as a chicanery that continues to waste public money, benefiting only the rich.

Two issues place the role of taxes in the economy back on the agenda.  The first is the Trump tax plan, the second is the scramble across the country to use tax incentives to lure Amazon to locate its corporate headquarters to a specific state and community, such as Minnesota.

Turning first to the Trump tax plan, there are multiple frauds and myths here.  First the plan calls for an elimination of the  estate and the alternative minimum tax as well as increasing the standard deduction.  The three are described as helping the middle class.  In reality, none of them will do anything for the middle class or poor.  Right now few individuals pay estate taxes.  As of  2016, there is no estate tax if it is less than $5.45 million.  There are not too many poor or middle class people I know who are worth more than $5.45 million.

Second, the alternative minimum  tax only applies to the likes of billionaires like Donald Trump or major corporations who are able to use creative tax formula to avoid regular incomes taxes.  The alternative minimum tax was meant to impose taxes on the rich and no poor or middle class pay it.  Finally, for most middle class families, the doubling of the standard deduction will not be used because either they make too much or, in the case of the poor, make too little to qualify.  The trump tax cuts will do little to help most middle class.  If any tax cuts would help them and the poor, it would be cutting the payroll taxes which are regressive.  For example, change the Social Security taxes from a flat tax into a progressive one, or lift the income cap on the maximum taxable income for Social Security.  These options will actually put more money into the hands of the poor or middle class.  The same would be true by increasing the Earned Income Tax Credit.

But the bigger fraud is the believe that taxes are efficient and effective tools to stimulate the economy and encourage business investment decisions.  Do high taxes really hurt the economy as much as they believe and will lowering them have much of an impact on stimulating it?  Anecdotal stories and illustrations confirm the tax fallacy.   High tax states such as Minnesota have generally fared better in terms of economic growth, unemployment, median family incomes and location of Fortune 500 companies, than low tax ones such as Mississippi and Alabama. If taxes were the only factor, Mississippi would be thriving, Minnesota in the tanks.  At best, there is little correlation between taxes, income, and unemployment rates, but in many situations high taxes, and with that, government expenditures on education, workforce training, and infrastructure, correlate positively with income and low unemployment and business retention.  One needs to look not just at one side of the equation—taxes—but the other side too—what taxes buy—to see what value businesses get out of them in terms of educated workforces and infrastructure investments. Most debates fail to do this.

Using statistics gathered by the Bureau of Economic Analysis one can also examine how economic growth is related to tax rates.  One can compare annual economic growth as measured by the percent change in the gross domestic product (GDP) percent based on current dollars, comparing it to the highest federal individual marginal tax rate and the top corporate tax rate since 1930.  Effectively, look at the tax on the wealthy and corporations. If taxes are a factor affecting economic growth, one should see an inverse relationship between growth of the U.S. economy and higher tax rates.  The GDP should grow more quickly when top individual and corporate tax rates are lower.  If taxes are a major factor deterring economic growth, lines on a graph should go in opposite directions:  As tax rates go up the GDP should go down.


No such pattern emerges between high taxes and GDP growth over 80 years. During the Depression era of the 1930s corporate and individual taxes rates increased but in 1934 through 1937 the GDP grew by 17%, 11%, and 14% annually.  Top corporate tax rates climbed to over 50% through the 1960s, again with no discernible pattern associated with decreased economic growth.  The same is true with top tax rates on the richest which were as 91% into the 1960s. Conversely, since the 1980s after Kemp-Roth and then after 2001 with the Bush era tax cuts, there is no real indication that the economy grew more rapidly than in eras with significantly higher tax rates on the wealthy and corporations. Looking at time periods when tax rates were at their highest, GDP often grew more robustly than when taxes were cut.  Visually, the graph simply fails to demonstrate that tax rates negatively impact economic growth.

Pictures are worth a thousand words, but statistics are priceless.  Statistically, if a tax hurts economic growth, the correction with it is -1. If they positively facilitate growth the relationship is 1, and if they have no impact the 0.  The correlation between GDP and top individual taxes is 0.29, between GDP and top corporate taxes is 0.32, and among the three it is 0.14.  Statistically, there is a slight positive impact on either top individual or corporate taxes or economic growth, but overall almost no connection between tax rates on the wealthy and corporations and economic growth in the United States.

But what about taxes as job killers?  Again running similar statistical tests, there is little connection.  Using Bureau of Labor Statistics data on unemployment rates since 1940, the correlation among top individual and corporate taxes and the annual unemployment rate is -0.02—essentially no connection at all.

Now some will claim that the 1963 Kennedy tax cuts are an example of how changing tax rates will stimulate the economy.  Contrary to the folk legends, there is little evidence they helped the economy.  And even if tax cuts do stimulate the economy, presently the US economy is doing well with near 3% GDP growth.  The cuts will do little to help the economy, especially if concentrated in the hands of the wealthy  or corporations.  If anything, targeted cuts to help those currently unemployed, or incentives to invest to increase worker productivity, will be more helpful.
 Cuts in taxes without cuts in spending inflate the national debt and that may not be beneficial.  Conversely, cuts in taxes along with cuts in government spending will depress the economy.

Finally,  now think about the bidding war  by states to lure the new Amazon headquarters to their communities.  Again, there is little evidence that tax incentives are a major determinant of business location decisions.  Businesses, when looking to locate, look to the quality of the workforce, access to markets and suppliers, infrastructure, and other amenities (such as the arts) are far more important factors influencing location decisions than tax cuts.  Literally hundreds of studies and interviews with  businesses confirm this.  Businesses ask for tax cuts for one reason--because t hey can--and  governments are foolish enough to oblige.

The belief that tax cuts make much of an economic difference is a lie that is hard to kill off. Trump's tax plan, along with the Amazon scam, are just the latest examples of policy ideas that do no more than enrich the wealthy at the expense of the rest of us.

Sunday, September 24, 2017

Trump and the NFL–The Constitution Dictates no Political Orthodoxy

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
West Virginia v. Barnette,  319 U.S. 624, 642 (1943) (Justice Robert Jackson)


As a society we owe a debt of gratitude to the Jehovah Witnesses.  They taught us that the government cannot force us to salute the flag and why.  It is their famous case of West Virginia v. Barnette  that tells us why Trump has it wrong when it comes to  hi.s fight with the NFL.
        No matter what sports teams, players, or owners do when it comes to politics, it is none of the business of President Donald Trump or the government.  This is true whether they stand, salute, kneel, or refuse to take the playing field.  It would also be the case that it is none of the government’s business what private companies or individuals believe or do when it comes to politics.  For all of them to refuse to bow to the government or to hew to orthodoxy, this is exactly what the First Amendment protects, and the Supreme Court declared such a point nearly 75 years ago.  All those who defied Trump–including Stef Curry and LeBron James–they are real patriots and deserved to be applauded.
Donald Trump’s call to fire or bench sports players who kneel during the National Anthem is simply one more instance of how he fails to understand that there is this amazing thing called the Constitution and the Bill of Rights that restrains the government.  His failure to comprehend the basics of separation of powers, checks and balances, bicameralism, and federalism are at the root of his inability to get anything done as president of the United States.  But his failure too to comprehend v that presidents are not kings, that the US is a constitutional representative democracy that respects individual rights, is also deplorable.
What does it mean to live in a constitutional democracy? Among other things, it means that the government cannot tell us what to do.  There are limits or walls that define the scope of governmental authority over private individuals or businesses.  At the end of the day, what both individuals and businesses believe and do is not something the government can or should dictate.   Freedom is freedom from external restraints, from a government telling us how to think, hope, believe, pray, and act.  This is what the US stands for, and everyone regardless of their political beliefs and ideologies should support the idea that the NFL teams, players, and owners should be free to express their beliefs, not having to fear a government or president telling them what to do.
The present fight between Trump and the NFL is reminiscent of a controversy underlying  arguably the greatest Supreme Court opinion in American history--West Virginia v. Barnette.  That 1943 case was all about a state law that compelled students to say the Pledge of Allegiance in school.  Members of the Jehovah Witnesses religion objected to the law on First Amendment grounds, and the US Supreme Court agreed with them.
Writing for the Court, Justice Robert Jackson penned two of the greatest lines in Supreme Court history, both of which captured the essence of what it means to live in a free society.  The first  was to say that:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted  to vote; they depend on the outcome of no elections (319 U.S. at 638).

No election can or should determine who has what rights.  Majorities do not get the right to tell minorities what rights they have.  The very essence of American constitutionalism is majority rule balanced by minority rights.  Not only does the Constitution restrain the ability of majorities to dictate to minorities, it more importantly restrains the ability of the government to tell people what to do.  Again, as Justice Jackson said in Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein (319 U.S. at 642).

Barnette was about telling the government telling a religious group they had to salute the flag, and all of us should be angered by that proposition.  The same should be the case here with Donald Trump–he and the government have no right to tell an individual sports players or teams that they should salute the flag.  For if today the government can do that with sports teams and players, why not tomorrow tell Catholics, Protestants, and members of other faiths, as well as small businesses, and anyone else, what they should believe and  do.
It is the task of the government in the US to remain politically neutral when it comes to the political beliefs of individuals, respecting their right to criticize the government, even if the choice of words or views are repugnant.  Donald Trump as an individual may have his own political beliefs and he is free to express them. But as president he is not free to use the coercive power of the presidency to chill the political expression of others.

Friday, September 22, 2017

What is Ranked Choice Voting and How does it Work?

After Minneapolis first adopted and used Ranked Choice Voting (RCV) in its 2009 elections, the
Minneapolis Elections Bureau asked me to do an evaluation.  In that report, I drafted a description of RCV in terms of the pros and cons and how it is supposed to work.  Now that the early voting in Minneapolis and St. Paul has begun, I decided it was time to reprint this section of the report. 


What is RCV?
In November 2006, voters in Minneapolis adopted RCV as their preferred method for running elections and selecting candidates in their city.  The decision to make this switch came as a result of several years of lobbying and mobilization by individuals and groups such as Fair Vote Minnesota (FVM).  The voting mechanism that RCV voting replaced is known as first past the post (FPTP) or simple majority rule.

FPTP is a simple voting system.  It states that whenever there is an election for a single member seat, such as for mayor or a city council seat, the candidate who receives the most votes wins the seat.  Thus, in a two-person race, the candidate who wins 50% of the votes plus one wins the race.  In races with three or more candidates, the one who receives the most votes wins, even if that candidate wins less than 50% of the total vote.  In non-single member races, such as where two candidates are to be elected, the top two vote getters are elected, again whether or not they receive more than 50% of the vote. 

In voting, citizens are allowed only one vote for each office holder to be selected.  If voting for mayor, each eligible voter is allowed to case one vote.  In multi-member races, such as when citizens are allowed to elect two school board members, each voter is allowed to vote for up to two candidates.  They may not cast more than one vote for a specific candidate.  FPTP is often described as simple majority rule—yet, as noted above, there are no requirements for a candidate to receive a majority of the vote unless that is an additional stipulation imposed by law.  Minneapolis prior to 2009 employed FPTP in all of its elections.



Criticisms
There are several criticisms of FPTP.  One is that the lack of a majority requirement means that candidates elected in single member districts may take office even though only a plurality of voters cast ballots for them.  The concern here is that candidates do not enjoy the legitimacy of majority support if they take office with less than 50% of the voters having supported them.

A second criticism is that FPTP creates disincentives for third party candidates to run for office and get elected.  The reason for this is that voters, fearing that a vote for a minor or third-party candidate would effectively result in the candidate they desire the least being elected.  Thus, third party candidates are viewed as spoilers who voters are reluctant to support.  For example, in the 2000 Florida presidential election, many argued that Ralph Nader was a spoiler.  By that, some argued that votes cast for Nader came from otherwise Democratic votes that would have gone to Al Gore had the former not run.  Thus, Nader votes effectively produced a victory for George Bush, the candidate some contend who was the last choice for Nader or Gore voters. 

While there is mixed evidence that Nader served as the spoiler as described above, the argument is that in general voters will not vote their first choice (a third-party candidate) if they perceive that the candidate does not have a real chance of winning, for fear that it would lead to the election of the candidate they least desire.  This in turn means that it will be difficult for third party candidates to run, thereby insulating Republican and Democratic parties as the two major parties.  Thus, FPTP decreases incentives for voting for third party candidates and effectively limits voters to a choice among the two major parties.

RCV is supposed to address many of maladies of FPTP.  At its most basic, RCV involves three candidates, A, B, and C, all running in a single member district.  Voters are asked to rank choice their candidates, indicating on a ballot who their first, second, and then third choices are.  In order to be elected, a candidate needs to win 50% plus one of all the votes cast.  Assume that there are 100 voters, one could have this scenario.

A receives 51 votes.
B receives 30 votes
C receives 19 votes.

Under this scenario, candidate A is the winner.  However, assume a different situation where

A receives 45 votes.
B receives 30 votes
C receives 25 votes.

Under this scenario using RCV, no candidate is initially declared the winner.  Instead, the candidate with the least number of votes—C—is dropped from the ballot and her votes are transferred to A and B based on the expressed preference of the voters when they ranked their preference for candidates.  Whoever then receives 51 votes is declared the winner.

RCV does not give voters multiple votes; it merely allows voters to rank their candidate preferences.  Votes are then transferred from voters’ first choice to their second choice (or third if there are more candidates) until someone receives the 50% plus one votes.  At no point does any individual voter receive more than one vote or have more than one vote counted in single-member districts. 


Benefits of RCV
Advocates of RCV contend that this voting procedure is superior to FPTP.  They argue first that RCV addresses the problem of candidates being elected with less than 50% of the vote by mandating a real majority to take office.  This addresses the issue of minority (less than 50%) candidates taking office, thereby ensuring that majority rule is actually honored.  Second, the argument is that RCV deals with the spoiler psychology.  Specifically, because voters know that they can rank choice their candidate preferences they have a greater incentive to vote their first choice, even if a minor party candidate, because the candidate cannot be a spoiler.  If no candidate in the first round of voting receives more than 50% of the vote then votes are transferred from one’s first choice (a third-party candidate, for example), to the remaining candidates.  Assume for a voter her first candidate choice is C, second choice A, third choice B, and assume:

A receives 45 votes.
B receives 30 votes
C receives 25 votes.

Under this scenario, since C received the least number of votes, that candidate is removed from the ballot and votes for her are transferred to the voters second choice.  In the case of the voter above, her vote would transfer to A.  If enough second choice ballots from those who voted for C are transferred to A then, A wins.  If more second choices go to B, then B wins.  There is no guarantee that a voter’s second choice will win, but RCV supposedly creates an incentive to support one’s first candidate choice and not view a ballot cast for her as a wasted vote.

As a result of RCV, voters are potentially encouraged to support third or minor party candidates, minority parties are therefore encouraged or given better opportunities to run and win, and voters are therefore given more choices beyond the two major parties.

Criticisms of RCV

There are also criticisms frequently directed against RCV.  The first is that this voting mechanism is biased in favor of political parties on the left.  Second, that this voting procedure is non-monotonic.   Specifically, using RCV it is possible to vote in such a way that a specific voters’ ranking that their candidate will yield election of a lesser-ranked or preferred candidate. Third, that RCV violates the one person, one vote standard for the counting of votes.  In response, to these criticisms, there is no empirical evidence that RCV favors candidates of one political persuasion or another.  Second, while RCV is non-monotonic, so is FPTP.  Third, no voters have their ballots counted more than once (by that, each voter gets only one vote per round counted in a single-member race) and there is no double counting of ballots. 

Thursday, September 21, 2017

Do the Math: Despite Herself, Betsy Hodges is Still the Favorite to Win Reelection in Minneapolis

Betsy Hodges may be inept as mayor and as a candidate, but she has a great chance of winning a second term as mayor.  The reason for this is divided and weak  political opposition and the logic of ranked choice voting (RCV).
There was so much hope for Hodges when she was elected mayor of Minneapolis four years ago.  She inherited from R.T. Rybek a city generally headed in the right direction.  Yes, the city was challenged by uneven economic growth, racial disparities, crime, and other big city problems, but  these maladies were solvable with good leadership.  That did not happen.

Repeatedly Hodges failed when it came to managing the city, including rebuilding Nicollet Mall, working with City Council, overseeing the police, and addressing the core educational and socioeconomic disparities she pledged to combat as candidate.  Her tenure as mayor included a tin ear when it came to stories about her frequent travel while ignoring city business, inept dealing with developers of the land near the new Vikings stadium, she has been embroiled in court disputes about releasing a timely budget, and her reelection campaign has suffered two major mass resignations.  She ought to be doomed as a candidate for a second term.
Yet Hodges may be the luckiest person in the world.  As much as she may be disliked in the city, her opposition is generally weak and divided.  Consider the candidates.  With the singular exception of Tom Hoch, there is no major candidate running who has the political or executive experience to run the city.  Jacob Frey, Raymond Dehn, and Nekima Levy-Pounds lack executive experiences, and none of them seem to have the leadership capacity to unite voters or the city. No single anti-Hodges candidate has emerged, and there is no sign that votes are coalescing around any of these candidates.  In addition, given that the news cycle is dominated by Donald Trump, it is possible that many Minneapolis voters have not heard of all or any of the other candidates running against Hodges, the mayor may be the best or only known candidate by many in the city.
But even if Hodges is disliked and voters have someone else they prefer to her as mayor, they may not have someone else as a second choice beyond her.  Hodges may be many voters’ second choice simply–as the old saying goes–better the devil you know than the one you do not.  This is where RCV comes in.
Consider the following scenario in the mayor’s race.  Assume these are the election results with Frey getting 26% of the vote, Hodges, second at 26%, and so forth.  Assume also that Hodges is the second choice for all voters.

26:Frey>Hodges>Dehn>Hoch>Levy>Other
24:Hodges>Frey>Dehn>Hoch>Levy>Other
20:Dehn>Hodges>Frey>Hoch>Levy>Other
15:Hoch>Hodges>Frey>Dehn>Levy>Other
10:Levy>Hodges>Frey>Dehn>Hoch>Other
5:Other>Hodges>Frey>Dehn>Hoch>Levy

Using a RCV predictor tool, Hodges wins the election.

Now assume Hodges is second choice with these results where Frey is the clear frontrunner and Hodges is tied for second.  Hodges still wins the election.

28Frey>Hodges>Dehn>Hoch>Levy>Other
22:Hodges>Frey>Dehn>Hoch>Levy>Other
22:Dehn>Hodges>Frey>Hoch>Levy>Other
15:Hoch>Hodges>Frey>Dehn>Levy>Other
10:Levy>Hodges>Frey>Dehn>Hoch>Other
5:Other>Hodges>Frey>Dehn>Hoch>Levy

Finally, consider a third scenario where  Hodges is a third choice but still comes in a close second.  Frey wins.

26:Frey>Dehn>Hodges>Hoch>Levy>Other
24:Hodges>Frey>Dehn>Hoch>Levy>Other
20:Dehn>Frey>Hodges>Hoch>Levy>Other
15:Hoch>Frey>Hodges>Dehn>Levy>Other
10:Levy>Frey>Hodges>Dehn>Hoch>Other
5:Other>>Frey>Hodges>Dehn>Hoch>Levy

Many other scenarios will produce different results and many will show Hodges losing.  But if one assumes Hodges is a top three finisher in a close race and she is the second choice of most voters, she wins a second term as mayor.

Monday, September 11, 2017

Dayton v. Legislature: The Minnesota Supreme Court Punts

The  Minnesota Supreme Court's Dayton v. Ninetieth Minnesota State Senate and the Ninetieth House of Representatives was not a decision, it was a  punt.  The Supreme Court did not really decide the case in favor of Dayton or anyone, contrary to what the media reported; instead it pushed it down the road, hoping to avoid having to make the real decision.  It did so perhaps to avoid revealing  something deeper and more troubling in the case–a Court that is divided politically by the case with Dayton appointees voting for him, the other Justices against him.
The Dayton non-decision had something for everyone, and both the governor and he legislature can claim to be winners.  It both declares that the governor’s line-item veto of the legislature’s funding is constitutional but in the very next sentence it says this “conclusion does not, however, end the matter.”  The Court then describes how the Constitution requires three functioning branches and then the governor and the legislature are ordered into mediation to resolve disputes over funding and perhaps other matters.  The Court notes the tension between the two conflicting provisions of the State Constitution yet it never  resolved it.  This is the essence of judicial review, and the Supreme Court punted at the most critical spot.
The Court really did not want to decide the case and it made that clear when it stated that:  “The other Branches should resolve these doubts through the political process.”  The real decision here was to declare this dispute a political question, one that the Court did not have to or consider legitimate to decide.  In ordering mediation, the Court hopes that the two sides will work out their differences.  Paradoxically, one has to wonder whether the Court can order them into mediation, especially given that this is the same Court in oral arguments and in this decision which questioned whether it had the authority to order temporary funding when the governor and the legislature are deadlocked.
Another sign that the Court did not really decide the case–there was no vote.  This was an order signed by the Chief Justice.  The Minnesota Supreme Court can issue per curiam unsigned opinions, but they generally only do so when very divided and all they can agree on are some basic points.  This is what happened here.  One hypothesis is that the four Dayton appointees wanted to rule for him, the other Justices against him.  A Minnesota Supreme Court ruling for the governor  with votes supplied simply by his appointees and divided by political party and who appointed the justices would have done lasting damage to the Court and questioned the legitimacy of the decision.  Thus instead, the Dayton Justices got a part of a decision that said the governor should win, the other Justices favored the Legislature, and the political deadlock on the Court produced an opinion with language to make everyone happy while not deciding the case.
Institutionally this non-decision may have been the best choice for the Court if it wishes to  protect it political and legal legitimacy.  Yet for those hoping that the basic constitutional questions would be resolved, it was not. And for those worried about the Minnesota courts becoming politicized, this case speaks to a potential fear that the Supreme Court may be at that point.

Saturday, September 9, 2017

Swing Counties and Why Clinton Really Lost? It Wasn't Sanders Fault...It was Hers


So why did Hillary Clinton lose to Donald Trump?  For many this is now a “Who cares?” and it is time to “move forward” as Bernie Sanders said Thursday on The Late Show.  Yet Clinton cannot.  In her forthcoming book she describes the attacks on her by Sanders as causing “lasting damage” damage to her campaign.  No doubt, Clinton’s new book will seek the causes of her defeat in outside forces–the Russians and Sanders for example–but the roots of her defeat also lie within her own control.  Much could be written about how all the mistakes she made and how she failed to learn from them eight years later.  Yet perhaps one way to capture her mistakes is simply to look at her general election campaign, especially in terms of where she campaigned and how often.
I am in the process of doing a second edition of Presidential Swing States.  In editing that book with Stacy Hunter Hecht I realized it is not simply swing states that make the difference in presidential elections, it is the swing voters within the swing counties in the swing states that are critical.  In this second edition I am doing a chapter on the swing counties.  Looking at county campaign activity tells one a lot about the mistakes made by Clinton in the 2016 general election.
There are 3,142 counties, parishes, or boroughs in the United States.  During the 2016 general election, Clinton/Kaine made a total of 152 campaign visits to 75 counties located in 14 different states.  Trump/Pence made a total of 248 campaign visits to 142 counties in 25 states.  Total, they  made 400 campaign visits to 167 counties located in 26 states.   Between the two campaigns, they only campaigned in 5.3% of the US counties.  For Clinton it was only 2.4% of all counties, for Trump it was 4.5%.  Trump/Pence not only made nearly 60% more campaign visits than Clinton/Kaine, but they visited nearly 90% more counties.  Simply put, they made more visits to more locations than Clinton/Kaine.  Alone that tells one something about why Clinton lost–she did not campaign as much or broadly as Trump–he simply out-hustled her on the campaign trail.
But what is also interesting to consider is where the Clinton and Trump campaigns chose to  visit.
Clinton and Trump demonstrated different tactics in terms of the counties they chose to visit. For Clinton, her most frequent visits were to Democratic Party strongholds located in big urban areas such as Philadelphia, Fort Lauderdale, and Detroit.  For Trump,   the focus seemed less on big Republican strongholds and more on visiting swing areas or counties such as Hillsborough County in New Hampshire or Mecklenberg County in North Carolina.
These contrasting strategies suggest  that Clinton’s focus was either on shoring up her party base or simply trying to maximize her turnout among the Democrats.  For Trump, the focus seemed more on swing voters, perhaps reflecting the fact that either he was sure he had his base or that he was trying to expand or shift it.  All these are possible scenarios.  Yet I would also argue that what the Trump campaign did was more strategic and realistic.  His campaign understood that the key to winning an election is not just holding and mobilizing a base, but it is also going after the s wing voters in swing areas who control the balance of power in presidential elections.
Yes it is possible that Clinton had to campaign in the Democratic Party strongholds to overcome the attacks inflicted upon her by Sanders.  But a stronger argument can be made is that she simply failed to make enough campaign visits in the critical swing countries among swing voters to ask them for their vote.  If that is the case, she violated a cardinal rule of politics once enunciated by Tip O’Neill–never take a vote for granted and always ask for it.  It appears Clinton just did not ask the swing voters in the swing states for their votes, and that is why is lost.


Clinton Campaign Visits
State County Visits
Pennsylvania Philadelphia 8
Florida Broward 7
Florida Miami-Dade 7
Nevada Clark 6
Michigan Wayne 6
Ohio Cuyhoga 6
Pennsylvania Allegheny 5
North Carolina Wake 4
Iowa Polk 4
Florida Orange 3
Florida Palm Beach 3
Ohio Franklin 3
New Hampshire Hillsborough 3



Trump Campaign Visits
State County Visits
New Hampshire Hillsborough 7
Colorado El Paso 6
New Hampshire Rockingham 6
Nevada Clark 5
North Carolina Mecklenberg 5
Florida Miami-Dade 5
Nevada Washoe 5
North Carolina New Hanover 4
Arizona Maricopa 4
Ohio Cuyhoga 4

Friday, September 1, 2017

Labor Day and the Truth about Immigration

It’s September 2017 and there is still no funding or plan to build Trump’s wall along the Mexican border.  While earlier this week Trump said he would not go along with raising the debt ceiling unless there was border wall funding (I guess US taxpayers pay for it and then we bill Mexico?), he eventually again backed off from this mandate.  No surprise.  The 140-character Twitter presidency says lots of things to get supporters and opponents hot and bothered, only to see no follow up by Trump or even reversals by his staff (think of the Defense Secretary temporarily halting the ban on transgenders in the military).

Immigration persists as a tough political issue for both Republicans and Democrats.  Republican failure to support immigration reform is a way for them to dig their own graves with future Hispanic voters.  The party needs to give on this issue but its current aging and xenophobic base makes that impossible.  Instead, Republicans call for a wall along the Mexican border, or for laws to allow for law enforcement to simply stop and detain individuals whom they think are illegal.  This is what Sheriff Arpaio did and with Trump’s pardon, he got away with it.  The State of Texas wants to go after sanctuary cities and a judge has put a halt to that, and of course Trump’s immigration bans have significantly been weakened in Court.  They exist mostly as media sound bites, although they do hurt some people.

Immigration is the new race word.  At one time, affirmative action, crime, or desegregation were code words for racism.    You could not respectably run as a racist so those issues were surrogates for race.   Immigration is the same, except now it seems that it is okay to run as a racist, or at least let the racism come out.  But all this beg a question—Why the fear of immigrants?


In general, especially in tough economic times, the argument is that immigration and immigrants take jobs away from Americans and serve as a drain on the economy. They are often singled out as competing against American citizens for jobs or that they cost taxpayers money. There is a belief that the benefits of citizenship, the free schools, and other programs found in the United States operate like a lure to attract illegal immigrants to the United States.  Allowing them to work in the United States, get a driver’s license, the availability of schooling, health care, and citizenship for children, or even lax enforcement of immigration laws, sends a signal to them that they are welcome. Thus, immigrants—documented or not--flock to the United States and something needs to be done to stem this invasion.

                What is the reality?  Are immigrants a net drain on the economy; specifically, are they a bigger drain on taxes and public services than they are overall contributors to the economy? Second, immigrants are depicted as taking jobs away from Americans. What do we know about both of these claims?
First, while acknowledging that immigrants may in some local settings or jurisdictions place some short-term significant burdens upon public services, overall, they are net contributors to the economy. Several studies substantiate this point. The 2005 Economic Report of the President provided a detailed analysis of the impact of immigration upon the United States economy. The report noted that they as a group had up to a $10 billion net positive impact upon the economy. The report noted, for example, that while immigrants may be more likely than native born Americans to be on public assistance, the “net present value of immigrants’ estimated future tax payments exceeded the cost of services they were expected to us by $80,000 for the average immigrant and his or her descendants.”  However, with changes in public assistance laws, that figure had been upped to $88,000. While better educated immigrants (high school degree or better) definitely reflect this contribution, even among those not as well educated, the gains from them and their descendants’ productivity nearly, if not totally, offset the costs they impose upon public services that accrue to state and local governments. Finally, the president’s report also provided other documentation regarding the impact of immigrants upon the economy. For example, it noted that immigrants paid Social Security taxes on income of $463 billion dollars (108). Moreover, because many immigrants cannot collect Social Security, it is likely that immigrants overall pay more into this government program than they receive from it.

In addition to the President’s 2005 report, other studies have noted the net economic benefit of immigrants to the United States. A 1997 National Academy of Sciences study found several net benefits associated with immigration, including a $10 billion net positive impact on the economy. Brad Edmondson’s “Life Without Immigrants” found that: “Illegal aliens in prison cost about $471 million per year, and they consume about $445 million more in Medicaid funds. But these costs are offset by about $1.9 billion in taxes paid by illegals and billions more in consumer spending.” Furthermore, the National Academy of Sciences, President’s Report, and the Edmondson study, all indicated that younger workers provided for important sources of productivity that also served the economy well. Overall, these and other studies clearly contested the myths that immigrants were a drain on the economy.

In general, broader studies on immigration in the United States also confirm that there is a net benefit of immigrants to the economy. They generally pay more in taxes than they consume in public services. They have provided critical payments to Social Security to help maintain its solvency. Heidi Shierholz  in Immigration and Wages: Methodological Advancements Confirm Modest Gains for Workers found that even native US citizens have seen modest gains in terms of wages as a result of immigration. More importantly, California, Florida, New York, and Texas, the states with the highest immigration, seem to have particularly benefitted from it. Others reach similar conclusions about the impact on workers while noting that the granting of amnesty to undocumented immigrants has benefitted the economy and increased tax revenues to the United States.
The second criticism leveled against immigrants is that they take jobs away from American workers or they negatively impact wages. Again, several studies refuted that. For example, the National Academy of Sciences study found the wage impact to be negligible, while the President’s Report found little impact on wages of native Americans. The report also noted and dismissed the argument that immigrants displaced American citizens in the labor market. Instead, they often filled labor gaps abandoned by others, such as farming and agriculture, and they definitely constituted a new source of productive labor particularly at a time when the size of the labor pool from other workers had disappeared.

In addition to the above a Pew Hispanic Center study reached similar conclusions. It compared the economic growth in selected states with high versus low immigration and found no differences in economic growth or in its impact on the labor markets. It also found that there was in fact in 12 states a positive correlation between the growth of immigrant and native-born workers. By that, there was no evidence that in states where more immigrants entered the labor market it depressed the entry of others into work. Finally, even among immigrants who were young and lacking in education, there was no indication that they directly competed against and hurt native-born workers with similar background.
                In sum, the evidence that immigrants are financial drains on the economy and that they take jobs away or hurt the wages of native-born workers is simply false.  Attacking immigrants and blaming them for society’s problems goes a long way back in American history, and the reasons for this animus lie can only be explained on xenophobic or racist grounds.
                As we enter the Labor Day weekend it is possible to be pro-America, pro-worker, and pro-immigrant.  The US economy is stronger because of immigrants and workers are not hurt by them.  The causes of why working Americans are losing ground in many cases has to do with technology and the failing economic policies embraced by both Democrats and Republicans over a 40 year period.


Saturday, August 26, 2017

Presidents are not Kings: Why Trump’s Pardon of Joe Arpaio was Wrong

President Trump was perfectly within his constitutional authority to pardon ex-sheriff Joe
Arpaio, and there is little anyone can do about it.  And that is the problem.  The concept of unlimited discretion of the president to issue pardons and reprieves is clearly inconsistent with the concept of limited government and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

The historical roots of presidential pardoning power are sourced in British monarchical power.  At one time British kings and queens had unlimited political power, subject to no checks and balances.  “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon.  To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.

Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89.  Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people.  No government official, including a king, should be given unlimited and unchecked authority.

Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson.  In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke.  So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights.  All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body.  The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.

However some kingly like powers seemed to work their way into the Constitution. Article II, Section  2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate.  These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all.  The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use.  Unfortunately the courts have not agreed to such checks.

In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the

"power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

The pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences.  While all these pardons met constitutional muster, no  doubt some could be considered abuses of presidential power.

Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford–or be subject to impeachment as Harvard law professor Noah Feldman contends.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent.  That decision and dicta are a relic from a different era and legal system.  If the American Revolution and Constitution stand for anything it is that no one is above the law.  Granting presidents unchecked pardoning power, especial in how Trump used it with Arpaio, is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt.  Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels"–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.

Saturday, August 19, 2017

The Lessons of Charlottesville: Must we be tolerant of the intolerant?

Does the First Amendment require us to be tolerant of the intolerant?  The simple answer in the United States is yes, but only up to the point of violence, and only up to the point of where it involves government efforts to suppress speech.  Beyond that, tolerance is a social issue, and that is perhaps where the real danger lies in terms of threats to freedom and free speech.
Charlottesville was ugly in so many ways.  But the central question of the week is need we tolerate the intolerant?  There is the legal answer, and the social answer.  Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law.  Do we have a right to advocate hate?  The overthrowing of the government?  Should we be allowed to burn crosses, flags, or draft cards?  Is sexually-charged language or images discrimination or harassment? Can we, as Supreme Court Justice Holmes Jr., once mused, falsely cry fire in a crowded theater, and  is it permissible for political candidates to lie?  How far can our words go before they cross a line?  When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”
The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line.  Citing a litany of precedents it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Speech is speech, and it is protected until such time as it advocates imminent lawlessness that is likely or imminently to occur.  In Brandenburg, the Court ruled the KKK did not cross the line and their advocacy was protected speech.  Many might be surprised by this decision, but the Court drew a tough line in the sand–free speech is sacred and the government ought not to censor or prosecute it, no matter how ugly and hateful, unless it crosses the line into imminent violence.  That line might have been crossed in Chrlottesville with the violence.
The price to pay for freedom is that others have a right to say hurtful things or things we do not want to hear, and the government should not be the arbiter of what it truth.  As Justice Robert Jackson well-stated it in West Virginia v. Barnette, 319 U.S. 624 (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The First Amendment prevents the government from suppressing free speech.  But what about society?  The First Amendment does not apply to private actors or public opinion.  Private employers, internet hosts, and private individuals do not have to follow the First Amendment.  I am free to shun ideas I dislike and to disapprove of them and those who hold them.  Public opinion is the ruling sentiment in the US, for good and bad.  At its best public opinion and majority rule can do great things such as advocate for civil rights and equality, but at it worst public opinion is a destructive, censoring tool.  Fifty percent plus one of the population at one time sustained slavery, denied women the right to vote, and prevented same-sex couples from marrying.
James Madison, the principle architect of the Constitution and the Bill of Rights, as described in Federalist Paper number 10,  feared the  power of the majority faction to act “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Alexis de Tocqueville in his famous Democracy in America called this as the problem of the tyranny of the majority.” It is the problem of how do we balance majority rights with minority rule. The Constitution, and the Bill of Rights, are complex machinery that help to manage intolerance, abuse of power, and freedom by restraining the government.  At the end of the day, people can believe what they want, including hurtful and discriminatory things, but they Constitution and Bill of Rights stand as guardians against that.  Again to quote Justice Jackson in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.


Individuals can believe what they want, but they have no right to have their personal prejudicial beliefs translated into public policy.  
Yet James Bryce’s American Commonwealth saw something even more fearful than a tyranny of the majority–the fatalism of the multitude.

The tendency to acquiescence and submission, this sense of insignificance of individual effort, the belief that the affairs of men are swayed by large forces whose movement may be studied but cannot be turned, I have ventured to call the Fatalism of the Multitude...But the fatalistic attitude I have been seeking to describe does not imply any exercise of the power of the majority at all..In the fatalism of the multitude there is neither legal not moral compulsion; there is merely a loss of resisting power.

Elisabeth Noelle-Neumann’s The Spiral of Silence goes even further, describing the power of public opinion to encourage people to self-silence themselves.  The problem Madison, deTocqueville, Bryce, and Noelle-Neumann all noted was the suffocating power of public opinion and intolerance to silence dissenters, the minority, or those who have contrarian opinions.
We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak.  These latter groups have an right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind.  However, simply suppressing their speech does not eliminate hate, fear, and prejudice and the tools we use today to censor our enemies can another day be used against us.

Sunday, August 13, 2017

Are You a Crackpot? Take the Quiz!

U.S. President John Adams once declared: “Facts are stubborn things; and whatever may be our
wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”  Similarly Thomas Henry Huxley, biologist and defender of Charles Darwin, stated that: “The great tragedy of Science — the slaying of a beautiful hypothesis by an ugly fact.”
At one time we declared as crackpots people who denied facts and reality.  But if only Adams and Huxley lived now in a world of alternative facts and reality it might be they who are declared crackpots for believing in truth and facts.  Yet for those of us who still naively and perhaps foolishly believe that facts exist, science produces knowledge, and that there are ways to ascertain truth, contemporary politics is challenging.  While crackpot claims and conspiracy theories are as old as human nature, crackpots seem everywhere, lurking behind every posting on the social media, stories in the news, and even press statements from the White House. Crackpotism does not discriminate, it seems to know no political, racial, ethnic, religious, or other bounds.
All of us want to think we are in the right and that others are wrong, but is it possible that you too are a crackpot?  Ths crackpot quiz or index measures the degree to which you are a rigorous tough-minded truth seeker all the way up to being a certified five-star crackpot, ready to run for political office, host a social media site, or leader a group of similarly-minded folks.  The quiz includes classic as well a contemporary questions.
Good luck!

1. The Earth is flat.  True or false.

2. Fluoridation of water was and is bad for you.  True or false.

3. God created the Earth on Sunday, October 23, 4004 BC at 9 a.m. True or false.

4. Vaccinations have been proven to cause autism. True or false.

5. Humans did not evolve from another species because evolution as a theory is wrong.  True or false.

6. Global warming is a hoax cooked up by those who hate coal and the fossil-fuel industry.  True or false.

7. You stocked up your basement with food and provisions in anticipation of Y2K. True or false.

8. Lee Harvey Oswald acted alone in Dallas. True or false.

9. Elvis is alive. True or false.

10. You think that any politician or political party that you disagree with is the Anti-Christ.  True or false.

11. You believe in the Anti-Christ.  True or false.

12. You are the Anti-Christ.  True or false.

13. You believe everything as true what you or your friends read or post on the social media.  True or false.

14. You repost things on the social media before either verifying the source and accuracy of the story, or without reading it first.    True or false.

15. Former President Barack Obama is not a U.S. citizen and his Hawaiian birth certificate is fabricated.  True or false.

16. The U.S. government is concealing information about a UFO crash landing of aliens at Area 51 in New Mexico.  True or false.

17. Neil Armstrong walked on the Moon. True or false.

18. The Holocaust occurred.  True or false.

19. Crrypto-Zoology is a legitimate science. True or false.

20. All terrorists are Muslims. True or false.

21. All Muslims are terrorists.  True or false.

22. The only good immigrants are your ancestors.  True or false.

23. Donald Trump won the presidency with one of the largest Electoral College victories in US history.  True or false.

24. Al Gore invented the Internet.

25. Life begins at:
a) Conception
b) Birth
c) When you get your driver’s license.
d) None of the above
e) All of the above

Answers (If you believe in facts and truth, if not go on to the score section).
1 F. 2 F. 3 F.4 F. 5 F. 6 F. 7 F. 8. T.  9. F. 10.  F. 11. F.
12.  F.  13. F. 14. F.  15. F. 16. F. 17. T.  18 T. 19 F. 20 F. 21. F
22. F.  23. F. 24. F. 25. E.

Score:
If you even took the test raises questions about whether you have insecurities about being a crackpot, or conversely, you actually believe in truth and facts.  Nonetheless:

If you got 23-25 correct you are a tough-minded truth seeker, not fit for politics or working as a pundit in the national media.

If you got 20-22 correct you generally believe in facts and truth but you could be convinced to buy a deed to the Brooklyn Bridge.

If you got 17-19 correct truth and facts are challenges for you and you could either become a university professor espousing epistemological relativism or addicted to Sunday morning talk shows or tele-evangelicals.

If you got 14-16 correct truth and facts are matters of opinion and you believe that black helicopters are ready to land at any minute.

If you got 13 or less correct truth and facts are only what you believe and congratulations, you are  certified five-star crackpot.