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.

Friday, August 11, 2017

MAD to NUTS: US Nuclear Strategy, Donald Trump, and North Korea

Asking are we on the brink of war with North Korea is the question of the day.  For many the fear is that we have two leaders–Kim Jong-Un and Donald Trump–who are  hotheads, willing to engage in public threats and not private diplomacy.  They look like two drunks in a bar at 2:00 a.m., standing chest-to-chest with one another, neither really wants a fight but neither can back down, and the conditions are ripe for the confrontation to tip out of control.  Yet the conditions for why this confrontation are so unstable reside in the evolution of US nuclear strategy which has gone from MAD to NUTS, and because so many of the conditions that actually mad the Cold War stable are not present here.

The stability of US nuclear strategy during the Cold War was MAD–mutual assured destruction. In a bipolar world divided up between the USSR and the USA, part of what kept either country from using nuclear weapons and going to war was that both countries would face certain  destruction.  Neither country would be able to prevail over the other without also suffering significant damage.  Fear of mutual assured destruction prevented nuclear war.  But the stability of the Cold War also was premised on several other factors.

First, neither country seriously questioned the regime legitimacy of the other nor that it genuinely contested each other’s core spheres of influence.  Yes there were surrogate battles across the world such as the Congo or Vietnam, but both he USA and USSR generally acknowledged the security interests of one another and did not try to cross it.  The one major instance where that line was breached was the Cuban Missile Crisis, nearly resulting in a major war.

Second, in part as a result of the Cuban Missile Crisis, the USSR and USA developed communication strategies to stay in contact.  The Hot line in one famous example.  The point is that the two countries talked to one another, they had ways to try to resolve conflicts through diplomacy.  Without talking to one another, the USSR and USA would have been locked in the classic prisoners’ dilemma where acting alone there was incentive to confess (go to war) instead of remaining silent  (Maintaining peace).  While the Cold War era was scary, MAD worked and it prevented nuclear war.

Yet beginning in the 1980s and especially into the post-Cold War era US nuclear strategy went NUTS--Nuclear utilization target selection.    NUTS was about the idea that the US had the capabilities to engage in limited nuclear war.  It could do so because of the precision of our missiles, the overwhelming force the country had, or the defenses that it had to repel an enemy attack.  In addition, as a result of the demise of the USSR, the USA as the “winner” of the Cold War felt that it potentially could make limited nuclear war just another option among others in its military menu because it did not face the threats of mutually assured destruction.  In effect, the USA could win a  limited nuclear war.

What successfully prevented nuclear war during the Cold War is missing from the confrontation with North Korea.  MAD is missing.  The US will win a nuclear or any type of confrontation with North Korea, and that alone is destabilizing because it creates incentives to take a chance and escalate a shouting match into a military confrontation.  In the case of Trump, he may be convinced we win a limited nuclear battle if it escalates to that, or that because of his apparent indifference to our third parties, a battle that inflicts damages to Japan or South Korea is acceptable.  In effect, a false or genuine belief that the USA will not face assured destruction is destabilizing,  thus moving North Korea from MAD to NUTS.

In addition, it does not help that in the last few days Trump and his Secretary of Defense have threatened the legitimacy or existence of the North Korean regime.  This too is destabilizing, but it also fits into North Korea’s game plan.  That country is an oppressive totalitarian state whose legitimacy in the eyes of its people resides in constantly stirring up fears that its very existence is under threat from outside forces such as the USA.  This appeal to fear makes it possible to extract the sacrifices the regime gets from its people.  The more Trump responds to blusters with blusters, the more it both feeds into the ability of North Korea to maintain a tight gripe on its people but also  it fuels insecurities about regime existence that can escalate into conflict.

Finally, unlike during the Cold War era, there is little in terms of back door communication channels to prevent the prisoners’ dilemma miscalculation.   Many of the statements from North Korea are blusters directed more for internal than external purposes and historically have been dismissed as such.  Yet now Kim Jong-Un’s rhetoric may be backing him and Trump into corners they cannot escape.  Neither Trump not Kim may know how far to go before their words get away from them.  In an era now (as opposed to even a year or so ago) where the two nations must deal with one another as nuclear powers, it is simply not clear how past behavior controls or directs the current conflict.

Overall, Kim and Trump may be hotheads but they face a context far different from the Cold War or from what has defined North Korean-US relations for 70 years.  It is the uncertainty of this new context that is what makes this situation so dangerous.

Final note:  Take a look at this blog of mine from last year--a work of political fiction involving Trump, North Korea, and nuclear weapons.

Saturday, August 5, 2017

The problems of the Trump presidency are real but distracting.    While the media is focused on the
Russian connection, criminal investigations, political impotence, White House staff changes, and insulting tweets, what is given short shrift are the fundamental problems with the US economy that gave rise to the Trump presidency, and how little is being done to address them.
The latest economic news superficially is great.  The unemployment rate has dropped to 4.3%, as 209,000 jobs were added in July.  This is the lowest unemployment rate in 16 years.   The economy has added job for 83 consecutive months–a record–and it now appears that all of the jobs lost during the 2008 economic crash have been recovered.  Conversely, the Dow Jones is over 22,000.  Democrats will credit Obama for the jobs report, Trump supporters will take credit for both the jobs and stocks.  But these rosy numbers do not tell the entire story.
The labor force participation rate is 62.9%.  This number measures what percentage of the eligible workforce is working.  This number remains low and has changed little in the last year.  Part-time employment has changed little over the last year, the number of discouraged workers (those who have stopped working for work) has changed little over the last year, the percentage of long-term unemployed (more than 27 weeks) has not changed much in the last year, and this group represents more than 25% of those unemployed.  In terms of wages, the average increase over the last month was 9 cents, and only a total of 2.5% over the last year.  Essentially, the Obama (-Trump) job recovery stalled at least a year ago.  It has never produced much in terms of significant wage growth, and it has not done much to bring back many new workers or the chronic unemployed back into the job market.
When it comes to the stock market, many experts argue that there is no good reason for the Dow to be at 22,000, at least this is the argument by Forbes, where the claim is that stocks are over-valued.  One traditional measure of stock value to determine if it is over-inflated is the price-earns ratio.  Historically it is about 15–a value less than that means a stock under 15 means it is under-valued, over that it is inflated.  In July the PE ratio for Wall Street was 20-way over value and comparable to the PE ratio in the late 1920s and 1990s before crashes occurred then.  It was also over 21 in January 2008, right before the current crash. Irrational exuberance might be the appropriate description here.
However, even if stocks are priced right they point to a continued economic trend in the US over the last 40 years–more and more income is being generated by stock and capital than by labor.  As the economist Thomas Piketty has pointed out, this is the recipe for why the gap between the rich and poor in the US has exploded over the last two decades.  Simply put, workers are making less money in terms of wages and the affluent more in terms of stock investments.
The recent unemployment figures coupled with the 22,000 Dow highlight the fundamental problems in the US economy that fueled the election of Trump.  He, along with Bernie Sanders, pointed to the failure of the Republicans and Democrats to do much to help the poor and working class over the last 40 years.  Good paying jobs have been lost, the gap between the rich and poor has increased, and Wall Street fiddles while Main Street burns.  Trump correctly pointed to the job anxiety of White working class America who have been left out of the economy (as have people of color but Trump never talked about that), but there is no indication in the recent unemployment reports or stock market gains to suggest that things have changed.
And there is no indication that either Trump, the Republicans in Congress, or the Democrats have viable ideas to address the problems of chronic unemployment and the rich-poor gap.   Efforts to repeal and replace Obamacare would have hurt working class America more, the proposed immigration reform does nothing to help American workers in terms of address wages or increase employment, and what little one hears about tax reform in terms of cuts to capital gains similarly will do little to address the wage and inequality gap.
The problems of the Trump presidency are many, but they distract from a deeper set of economic problems that have existed for two decades and which no one wants to fix.

Monday, July 31, 2017

Alternative Facts and Public Affairs

Note:  For nearly eight years I have served as the editor of the Journal of Public Affairs Education
For each issue, I write an introduction.  For the latest issue, I did an intro called “Alternative Facts and Public Affairs,” speaking to the latest battles in politics over science, truth, knowledge, and public policy.  Here is a portion of that intro.

What is a fact and how do we know when something is true? These are not just philosophical questions. In this era of intense partisan polarization, especially in the United States, the very notion that objective facts and truth exist is contested, and it seems acceptable for elected officials, policy makers, and the media to eschew real facts and opt instead for alternative facts. Contrary to the assertion of former US senator Daniel Patrick Moynihan, who once declared that everyone is entitled to his own opinion but not to his own facts, it now seems that everyone and each political party do have their own facts and truth. Why? Simply put, scientific facts and truth are not the same as political facts and truth; democracy and science are often in conflict, and the differing groups that support the Democratic and Republican Parties have vested interests in endorsing rival conceptions of truth. This is a dangerous proposition for governance and public affairs, where belief in knowledge, facts, and the pursuit of best practices premised on these is the mainstay of what we teach and encourage in our students as we prepare them for careers in public service.
For 30 years, I have taught American politics, law, and public policy. As someone with graduate degrees in astronomy, philosophy, law, and political science, my research and teaching centers on how policy making can be more evidence-based. In most aspects of our lives and in business, we are taught to draw on the best available evidence before making decisions. The same should be true for politicians and government. Decisions crafted out of political myths and faulty or no evidence yield bad public policy, wasting taxpayer dollars and leading to failed or ineffective programs. Yet too much policy is created without real evidence.
There are many reasons for this. One can clearly point to intense interest group politics and the corrosive impact of money on politics as possibilities. But there is also a profound difference in how scientists and politicians gather facts and think about the world.
Scientists (and most social scientists) subscribe to the scientific method. This is a rigorous approach, ideally using controlled experiments and the inductive process of gathering discrete data, which are then aggregated to test hypotheses. Scholars also often use statistical sampling to estimate how representative their samples are in terms of the phenomena being studied. One cannot examine every molecule in the universe, and good samples allow for generalizations. But there is always a slight probability of error.
For scientists, facts are rigorously tested but cannot be proved with 100% certainty. Science is about falsifying claims. Scientific knowledge is also incremental, built on what is previously known, as bricks laid one upon another to construct a wall. Scientists have built a wall of knowledge, facts, and truth. The laws of gravity, Einstein’s famous E = mc2, and 1+1 = 2 are examples. Scientific facts and truth have made possible telephones, television, the Internet, and the cure for polio. If one denies scientific truth, one might as well deny civilization. While we may not have a social science or public affairs equivalent of E = mc2, we do have an impressive trove of data and knowledge about the world of public policy and administration. We may not know truths that are etched in stone, but we do know what has failed and often what should not be done. In many cases, we have the lessons of history to guide us, or we simply do the best we can in a world of bounded rationality—we act based on the best knowledge we have and perhaps, in Charles Lindblom fashion, muddle though.
But (social) scientific knowledge is different from political knowledge. What is political truth, especially in a democracy? It is what 50% plus one of the population says: majority rule. For elected officials, what counts as facts and truth is what they learn from their constituents. A politician’s world is not one of controlled experiments, hypotheses, and statistically valid samples; what counts as valid evidence in making policies are the stories and interests of voters. This can be powerful evidence to someone who may need support in the next election. What is true in this sense has less to do with rigorous methods of investigation than with how well an assertion plays with the media or voters.
On occasion, scientific and political truth converge, resulting in good public policy. But historically they do not. The tension between scientific or expert knowledge culled from rigorous testing versus political knowledge based on majority rule is deep and has existed since Plato discussed it nearly 2,500 years ago. This is the technocracy/democracy gap. Some have more or specialized knowledge compared to others. Should the people defer to the experts or choose for themselves what they consider to be true? This is where political leadership comes in—to guide the public and make decisions based on the best knowledge at hand.
While science and democracy are in tension, how do we explain the partisan war on science between Democrats and Republicans in the United States? Battles over global warming and alternative facts are sourced in competing economic interests that support or sustain specific biases or factual worldviews. The two parties represent divergent interests that in turn have financial interests in rival conceptions of truth. Right now, Republicans are representing interests generally hostile to science, including energy companies that wish to deny climate change or workers who fear that automation will un-employ them. But this could change.
The gap between scientific and political knowledge might be bridged with more scientific education in schools. It might also be good if we elected more scientists to office. Together, this might create conditions that would make the political process more hospitable to science, yet there is no guarantee. Differing economic interests drive scientific skepticism, as do fear and prejudice, and something needs to be done to address both tendencies. The challenge for scientists and their allies is to convince the public and politicians that science is not a threat but rather enables and enriches our society.

As editor of JPAE and as a professor, I remain committed to the old-school idea that facts matter and truth exists and that both should guide the teaching and practice of public affairs. My goal has been to make sure that each issue of this journal contains articles that enhance our teaching and knowledge, helping us in the quest of producing the next generation of scholars and administrators who have the skills and knowledge to do their best to serve their constituents.

Saturday, July 29, 2017

The Lessons of the Health Care Repeal Failure: It Sucks being an Adult

Scores of lessons are to be had from the failure of Trump and the Republicans to repeal the
Affordable Care Act (ACA or Obamacare).  One of the most important is that governance is hard, or that it really does suck when you are in charge and have to be an adult.  This is the alternative reality that both Trump and the Republicans live in, and it is not clear they have learned anything from their mistakes...and it is also not clear that the Democrats have either.
Obamacare is flawed and it needs to be fixed.  It failed to do much when it came to the overall cost curve facing health care in the US (as a percentage of the GDP) and it created premium problems for those who made too much to qualify for subsidies but who were not employed or rich enough to afford to buy their own insurance.  Many of these individuals were Trump supporters–the individuals left behind by the changes in the American economy over the last generation and which neither political party helped.
However, the Republican goal in repealing Obamacare was never about fixing it.  The same was truth with Trump.  If there was one defining or uniting goal of the Republicans in the 50+ times they voted to repeal the ACA when they knew Obama would veto it, it was that they wanted to obliterate the president’s signature accomplishment simply to deny him a political success.  The same is true for Trump.  It was never about the flaws in the ACA, having a better plan, or even something as noble or principled as ideological belief in free markets and less government, it was simply to play politics, mobilize a hostile Republican base, and simply negate Obama’s legacy.  In Trump’s first six months as president, the few accomplishments he has had have all been aimed at erasing the Obama legacy.  Cancelling the Trans Pacific Partnership, railing against the Iran Nuclear Deal, banning transgender from the military, and arguing that the 1964 Civil Rights Act does not extend to sexual orientation, all had that singular focus.  There was no alternative theory, policy agenda, or grand plan regarding what to do.  The narrative was entirely negative.  All this works, perhaps, when in opposition, but not as a prescription for governance.
Many will point to the divisions between moderate and conservatives within the Republican Party as the reason why the ACA repeal failed.  There is some truth to that.  But in general, the GOP and Trump lack a governing agenda and vision for what they wish to accomplish.  In addition, there is a lack of leadership from Trump down to McConnell and Ryan.   Real leadership, as presidential  historian James MacGregor Burns defines it, is authority guided by principle.  Neither Trump nor  GOP leadership  displays that.  This leadership is about respecting the Constitution, its procedures and rules, it is about understanding checks and balances and separation of powers.  None of this is understood, especially by Trump.  He still thinks he is a CEO and not the president.  His first six months in office  demonstrate a startling ignorance of what it means to govern and there is no indication that he has learned any lessons from his failures.  He thinks, as in the case of a tweet saying transgender are barred from the military–that such pronouncements are governance and binding as law or policy.
The failure to repeal the ACA is a crisis of leadership in many ways.  It was Trump who never had a vision for what he wanted thinking that the art of the deal was s imply threatening and blustering others around.   He never understood how to negotiate.  Moreover, when push came to shove, his misogynist statements about women and saying prisoners of war were not real heroes perhaps came back to hurt him when Susan Collins, Lisa Murkowski, and John McCain voted no.  They had good reasons to oppose the ACA repeal bills, but how much was payback we shall never know.  But for the other Republicans who voted against the repeal, they were among the few adults in the Party who saw the consequences of what the bill would do.  However, for the 49 Senate Republicans who voted for repeal, they still failed to appreciate or care about how what they did would hurt not just Americans in general, but their own constituents.
The infighting in the Trump presidency is further proof of a lack of leadership.  Lacking leadership, everyone is going in their own direction and for their own interests.  No one seems to have loyalty to anyone, and that includes Trump.  The lesson if at all Trump learns from his failures is that others are to blame and that the Apprentice solution–“You’re fired”–is the solution.  Alea  iacta est–the die is cast on this administration and there is no sense that things will get any better.  No one seems to be growing up, taking responsibility, acting like an adult because, frankly, that sucks for this administration.
But the Democrats should not be so gleeful.  They seem in the Trump and GOP failures a 2018 success, but that approach of thinking Republican ineptness as the road to power is what cost them their leadership.  Faintly the Democrats realize that, trotting out a meaningless promise of a “Better Deal,” a narrative devoid of real substance and policy.  Democrats yet again seem to think that being “Republican Lite” is their salvation, instead of their problem.
The lessons of the ACA repeal failure demonstrate that it is hard being in charge.  Governance and leadership ask people to be adults who care about others, who care about the country, and who are capable of looking beyond simple personal self-interest and partisan advantage.  Right now, it is not clear that there are many elected officials in Washington who gets that.

Wednesday, July 19, 2017

No Surprise, Dayton Loses: The Legal and Political Implications


It should come as no surprise that a Ramsey County judge ruled that Governor Dayton’s line item veto of funding for the state legislature violated the Minnesota Constitution.    But with that decision, the respective powers of the three branches of government are reshuffled, leaving the governor in a far weaker position than it was before, both in the short and long term.
Dayton’s line-item veto was at best ill-advised, at worst a foolish political gambit with enormous political and legal implications.  Dayton’s use of the veto demonstrated how the legislature  had politically outmaneuvered him once again.  Not willing to take the chance of another government shutdown, Dayton refused to use his veto on several of the omnibus bills, thereby throwing away his most potent weapon to force the Republicans to do what he wanted.  Dayton blinked, signed the bills, and then used the line-item veto to try to force the legislature to do what he wanted, as evidenced by the memo he sent to them describing why he did what he did.  This memo would come to haunt him in the final court decision.
During oral arguments it was clear that the governor’s attorney was on weak ground.  As I tell  my law students, never make a legal argument asserting that you have unlimited discretion to act.  That was essentially the governor’ position–there was no limit on the power of the governor to use the line-item veto.  Unbridled discretion is never a good argument.
No surprise then  in the ruling by the judge.  Minnesota case law was clear that one branch or part of the government could not take action that would impede or prevent another constitutionally created branch of the government from performing its constitutional functions.  Second, in the original court hearing and its preliminary decision a few weeks ago the judge strongly hinted that the governor would lose.  Thus, from a legal perspective this opinion is not a shock or surprise.
Longer term, the implications here are interesting.  Between this decision and the Brayton  v. Pawlenty decision from a few years ago when the Court ruled against the governor’s use of his unallotment authority to balance the budget and end the legislative session,  decision a few years ago, the power of the Minnesota governor vis-a-vis the legislature is now weaker.  In both cases the governor overplayed his hand and now the courts have placed limits on what the governor can do on his own.  In both cases governor’s acted impulsively, in both cases they were ruled against.  The  two cases limit the constitutional powers of the governor.
At the same time, both of the cases strengthen both the legislature and the courts.  In the case of the legislature, it is stronger s a result of the governor’s constitutional wings being clipped and because it emboldens them to act and take more chances in the future.  The judiciary is stronger because it yet again became the final arbiter of who has power and how Minnesota government works.  Not only does this decision reinforce the notion that the Minnesota Courts get the final say on what the state constitution means, but with this decision they got to decide how to allocate political power in Minnesota.  This decision redrew the lines of separation of powers in Minnesota.
Short term, Dayton now is even weaker going into his last year than he was before, and Daudt even stronger, thereby enhancing his status as a gubernatorial candidate.   The decision has huge implications for the 2018 governor’s race.  Notice how Attorney General Swanson stayed out of this  case–she was smart politically not to defend the governor in a case she must have known he would lose.
Finally,  notice how the DFL Legislature sold out the governor.   Dayton’s use of the line-item veto was also a result of the Republicans’ flagrant violation of the single-subject clause in the State Constitution.  Dayton could not argue that point in his defense because he signed the bills he objected to.  However, if the Democrats had raised a single-subject objection to the bills in a separate case, it would have been possible for court to join the line-item and single-subject arguments together.  Historically, the two clauses have common histories in terms of their goal in policing legislative corruption and abuses.  Yet while John Marty tried to get support for this challenge, his DFL colleagues failed to support him, demonstrating how much the political and legal interests of  them and Dayton had departed.  What will be interesting to see is the political fallout of this failure to support the governor, both in the remainder of Dayton’s term and in how it plays out for the 2018 legislative and gubernatorial elections.

Saturday, July 15, 2017

Abandon Trump? The Republican Party Dilemma

No question more perplexes political pundits, the news media, and Democrats than “When will
Republicans abandon Trump?  The simple answer is that the odds of Republicans–both those in Congress and his base–abandoning Trump is like waiting for Godot.  In both cases, one can hope that Godot appears or the Republicans will flee from Trump and impeach him, team up with Democrats, or do something else, but the reality is that it just may not happen.
Now nearly six months into the Trump era the carnage of his presidency persists.  This week the Russian connection revelations continued to mount, depicting  patterns of illegal or unethical collusion between Trump campaign officials and family and Russian nationals if not the government.  Revelations of Trump family conflicts of interest intensify, Trump embarrasses himself and the USA across the world, his travel ban takes another court hit, and his policy agenda including efforts to repeal Obamacare look like one mistake after another.  Allegations  of obstruction of justice engulf the administration as the FBI probe continues, and to many, Trump tweets and alternative facts simply add to a narrative of a largely failed presidency unable to get anything done.  With the Republicans tasting policy victory last fall and only to see it slipping out of the fingers now and facing a potentially fatal 2018 election, why haven’t Republicans abandoned Trump?
Many look to the lessons of Watergate as hope that the GOP will reject Trump.  Back when Nixon was president his resignation was the product of not just political pressure by Democrats but also by notable Republicans in the House and Senate calling for his impeachment or resignation.  Public opinion support for Nixon also eroded, and he could not count on his base to support him in sufficient numbers to prop up his presidency.  Even his own Supreme Court abandoned him in U.S. v. Nixon and the mainstream media was nearly of one voice in going after Nixon. Surely, some assert, this should be Trump’s fate any day.  Not necessarily.
The 1970s is a different era from today.  Most significantly, the level and strength of partisanship today is far more powerful today than then.  Back in the 1970s about one-third of the members of Congress came from swing districts, those which were capable of flipping from one party to another.  The percentage of swing voters–those who split tickets voted or switched from one party to another when voting was about 15% of the electorate.  The Republican and Democratic parties were ideologically more mixed and straight party-line votes the exception and not the rule.
Today, there are fewer than 20 or so seats in the House of Representatives that are swing.  The number of seats  where Clinton won the presidency but a Republican in Congress is very small.  Party-line voting is the norm and not the exception in Congress and the Republicans and Democrats are so polarized such that the most liberal Republican in Congress still votes more conservatively than the most conservative Democrat in Congress.  The percentage of swing voters has dropped to about 5%, with swing meaning now swinging into votes or not voting, and not split ticket voting.  Partisan preferences have hardened, especially at the presidential or national level, and political scientists now note how individuals will change their policy preferences to conform with their party identification, and not vice versa.
Why is all this important?  Despite all of Trump’s problems, partisanship is more powerful than presidential performance.  Republicans have embraced Trump as their president, flaws and all.  This was no different from what the Democrats did with Clinton in 2016.  Despite all the clear warning signs that Clinton was a flawed candidate, Democrats stuck with her no matter what.  Democrats went down with Clinton as the captain of their ship, Republicans may do the same here.
Don’t count on Republicans abandoning Trump.  They still support many of his policy objectives and see a better chance of getting what they want if they are with as opposed to him. They still want to repeal Obamacare and may still succeed.  Consider some one such as Senator Susan Collins.  Depicted as a moderate, yet whenever push comes to shove, she votes the Republican line.  The same might be said of John McCain.  Right now they oppose the yet again revised version of the Senate health care bill and it looks doomed, but the same was said a few months ago about the House bill.
Moreover, don’t count on fear of what could happen in the 2018 elections as a motivating  factor for Republicans.   The latest public opinion polls (Gallup)  still show that 38% of the voters support Trump.  This percentage has not varied much in two months. His core base is still with him.   The Democrats are defending 25 Senate seats in 2018 (23 Democrats and two independents) than Republicans at eight, and there does not seem to be too many swing seats for Democrats to pick up in the House.  Trump’s core base is concentrated in enough congressional seats such that fleeing him there would invite Republican primary challenges from the right.  Finally, Democrats lack a narrative, plan, and strategy for 2018, they are still counting on Trump’s unpopularity to the springboard to victory.  This is Clinton’s 2016 mistake all over again.  Finally, the news media is not universal in  its condemnation of Trump; Fox national news provides alternative facts to the Trump base that reinforces partisan support.
It is possible that the Republicans will abandon Trump, but it is equally possible they will not.  Hoping it will happen is simply like waiting for Godot.

Friday, July 7, 2017

Trump at the G20: The End of the American Century

If  Donald Trump’s presidential goal was to “Make America Great Again,” he has a funny way
of going about doing that.  If anything, the G-20 Summit demonstrates how after barely six months as president the United States is a weaker country than it was before he took office.  The weakness resides in the decline of American soft power internationally.
Two elements were critical to the creation of what LIFE magazine editor Henry Luce declared in 1941 as the coming  American Century.  First, coming out of World War II the United States was militarily the strongest nation in the world.  That position was only enhanced by it being the first nuclear club member and persists today as the United States spends more on defense at $611 billion than the next eight countries combined spend at $595 billion.  US hard power is the greatest in the world.  The US simply has the fire power to muscle its hegemony across the globe.
But equally if not more important to creating the American century has been its soft power.  The term soft power was developed by Harvard scholar Joseph Nye in his 1990  Bound to Lead: The Changing Nature of American Power.  It is the power to influence world opinion by way of its culture, political values, and foreign policy. In many ways, soft power is the international equivalent of Richard Neustadt’s power to influence in Presidential Power–both describe the less coercive but equally important and effective ways that power is leveraged.  Paul Kennedy’s The Rise and Fall of the Great Powers credits the dominance of the United States as building a world in its image via both the strategic use of hard and soft power.  Soft and hard power work together much like carrots and sticks.
From World War II to the president there has been a Washington consensus on how to maintain American power.  Beyond significant military spending, supporting free trade, relatively liberal and democracy values, and exporting US culture have been instrumental.  So has been inviting foreign students to study in the US, allowing for business investment overseas, and pursing foreign policies and multilateral treaties.  While the US has not always been consistent in it values and goals, and the benefits and burdens of its policies have not always been equitably been distributed, there is no question from Truman to Obama there has been more consistency that disruptions in US foreign policy.
Trump’s presidency is challenging all of that, and not for the good. Pulling back on free trade and retreating from the world means less influence for the US.  To be the dominant player in the world the US has to be a player, and Trump does not want that.  At the G-20 summit the European Union and Japan have finalized a trade agreement that leaves the US out.  Trump has decimated the State Department making it difficult to engage in diplomacy.  He has pulled out of the Paris Accords, questioned NATO, bashed our allies, and alienated partners that we need to bring stability to the world.  North Korea’s recent missile launch show how with a decline in soft power the US options are narrow.  Even a military solution seems fraught because without soft power, hard power is vastly weaker too.
It would be easy to create a laundry list of all the things Trump has done to damage America’s reputation and soft power.  But the point is that entering G20, the meeting with Putin, the crises with North Korea, Syria, and maybe ISIS, Trump has undercut the very conditions that made it possible for the US to be great, powerful, and influential.  His presidency is proving less about making America great again and instead it relegating the US to a more marginal player in an international chess game that once placed the country at the center in terms of its influence.

Wednesday, July 5, 2017

Is Minneapolis Ungovernable?

Is Minneapolis ungovernable?  Increasingly critics, usually conservative,  point to a host of factors
suggesting that the city has become ungovernable.  The culprit in this indictment is party or partisanship.  While the ungovernability charge may be overblown, it does speak to an issue than no one is talking about in this year’s mayoral election–how the city is changing and why a rethinking of the structure of city government may be desirable and necessary to accommodate these changes.
The symptoms of ungovernability are many.  Look to the endless and overdue completion  of the construction on Nicollet Mall, or the increased traffic jams downtown caused by ill-planned or coordinated road construction.  There are racial disparities in educational outcomes, the persistent segregation, high taxes, the economic imbalance among races and across neighborhoods, and what some would allege are a police department out of control, or at least a police department where the mayor and the police chief seem out of sync.  And then some would point to a mayoral election four years ago producing 38 candidates, or on a policy level, adoption of a $15 per hour minimum wage.  For some, these and other examples point to a city out of control, one needing limits placed on its ability to legislate as was the aim by Republican state legislative bills this past session.
Many of these examples do point to problems within Minneapolis, but they may be symptoms of deeper issues.  For Republicans and conservative critics the problem is single-party DFL rule.  There is some truth to the concern that single-party dominance fails to provide sufficient checks on political excess and perhaps it might be good if the city elected one or two Republicans to the city council or even the state legislature.  If the latter, then perhaps Republicans might have more interest in the city because a member of their own party would be advocating for Minneapolis.  Yet Minneapolis is not completely single-party rule; the DFL is generationally divided between the old  Baby Boomer farmer labor party and the Millennial identity politics parties.  Yes, Minneapolis is a leaning left city, but simply to argue that it is ungovernable because of that is not accurate.
Many of the other problems that Minneapolis has are not unique to it.  Road repair and construction coordination is a regional issue in Minnesota and it demands better planning across jurisdictions.  The concerns about policing in Minneapolis are not new.  Lincoln Steffens’ 1904 The Shame of the Cities lists even back then Minneapolis and its police department to be corrupt or poorly managed.  Problems of segregation and the racial disparities across many benchmarks are metropolitan- if not state-wide; the suburbs and failed state policies are as much if not more to blame  than anything Minneapolis has done.  The symptoms of ungovernability some point to are not the fault of Minneapolis and may light in the need to rethink and expand regional governance or coordination as once was the dream of the Met Council.
Finally, one can also assert that the city is not ungovernable.  But most national accounts,  the city works and produces a quality of life that is outstanding for most residents.  It has a strong economy, great parks, a vibrant arts sector, and many decent neighborhoods.  Yes, many–especially the poor and people of color are being left behind–but that is not unique to Minneapolis.  This is the sad story of how race, class, and gender divide America and how neither the Democrats nor Republicans nationally over the last 30-40 years have done much to address these issues in a satisfactory way.  The failures of Minneapolis are the failures of the United States.
But if Minneapolis is ungovernable perhaps it is time to reconsider the structure of the city government.  More or less, the basic structure of the city government has not changed in a half of century of not more.  By charter, it is a city with a weak mayor and a strong city council.  The basic duties of the two have not changed over time, but the challenges facing the city have grown ever more complex in the last half century.  The complexities arising from changing demographics, economic conditions,and generations.  The population alone now is the largest it has been since the early 1970s, and there are more cars in the city and around it ever.  Minneapolis is now the economic hub of 16th largest metropolitan statistical area in the US, and the population surrounding the city is greater than it has ever been.  In many ways, Minneapolis faces pressures and challenges it has never  previously confronted, yet it is still trying to do that with a political structure that may be dated.
The solution is not clear but a serious charter revision may be in order.  Perhaps the city should consider creating a stronger mayor form of government, or even consider a city manager option.  There may be other options too.  But the simple answer is that Minneapolis may wish to rethink how it governs itself, assessing whether the structure it presently has is the one it needs to face the present and future needs of the city and its people.

Friday, June 30, 2017

Trump's America

The best thing one can say about Trump’s America as we approach the fourth of July is the
practice for free speech he exudes in his tweets!  He is willing to say whatever is on his mind, no matter how sexist, demeaning, juvenile, or small it may be.  Case in point, his latest attack on Mika Brezinski.  But that may be the extent of Trump’s knowledge or respect for the Constitution and Bill of Rights–rights for he but not for thee.
No one should be surprised by Trump’s crassness and sexism.  It was on display during the election. It is embarrassing enough to have a juvenile-in-chief as President of the United States, but it is even worse to think about the contempt or ignorance he has shown for the rest of the Constitution and Bill of Rights.  Abusing the press by blocking cameras from press conferences, spewing alternative facts, and Muslim travel bans, are only part of the vision of Trump’s America.  But it also how he is providing a role model for a culture that feels it is okay to be mean toward others with whom you disagree.  All this is bad enough.
But now pity the Republican and Democratic parties.  For the Republicans this should be their hour.  They control all the institutions of federal power, many of the state ones too, yet they look perfectly inept.  When given the institutions of power to govern they look worse than the gang that could not shoot strait.  Trump has no major legislative policy victory yet and it still may not happen with health care.  And even if it does, it will do little to benefit the very constituencies that elected him and so many Republicans.  Republican governors and members of Congress, confronting the reality of their policy rhetoric and proposals for the last few years, are blinking.  They can actually do what they want and either are scared to do it or realize they have no plan, no narrative, no clue to how to govern or rule.
I remember late last fall after the election when I was asked to give a talk about what the election meant and what the future would look like under Trump.  The other speaker was simply a  former Republican lieutenant governor candidate in Minnesota who described how “giddy” Republicans were in Washington at the prospect of doing what they wanted.  Not sure giddy is the word I would use now.  Trump has proved to be one of several impediments to the GOP getting anything done.  Trump is a diversion from Republican governance, preventing them from getting anything accomplished.  Throw in the Russian probe and it is intra-party gridlock through 2018.  And if the Democrats manage to get their act together and take back the Senate in 2018, gridlock  through 2020 and into 2021.
But the Democrats getting their act together is a big if.  They are the party without a narrative, a strategy, and a clue to how to win again except in the cities and communities where any Democrats can win.  While opposition to Obama was enough for Republicans to win, opposition to Trump is not enough.  The Democrats are a party on the run, lacking an alternative narrative to free markets and no government über alles and to the insufficiencies of the watered-down neo-liberal welfare state  policies they embraced for the last quarter century that failed to benefit the working class who fled them for the GOP.
Trump’s America is not just about Trump.  It is about a United States that is less than believing that all of us are created equal.  It is one that is about a divided country where the democratic institutions are still working, although barely, but certainly not in the way we hoped they would be.  It is about a failure of leaders, parties, and even people to act responsibly and work together.  Trump is not the cause, he is the symptom of something more deeply wrong in America  right now.  Making America great again should not be a slogan, it should be about addressing the racial and economic gaps in the country, about making it possible for people to afford to buy health insurance, eat, live in a decent neighborhood, raise children and send them off to an affordable college, and be able to drink clean water and inhale clean air.  It is about everyone having a place at democracy’s table.  This is what July 4, 1776 was about, not what it has become under Trump.

Wednesday, June 21, 2017

Trump, Congress, and Georgia: How the Democrats created their own political disaster

Democrat Jon Ossoff lost in a special congressional election in Georgia. It should have meant nothing but instead it meant everything for all the wrong reasons.  The Democrats transformed something that never should have mattered into yet another crisis for themselves.
The special congressional election in an affluent Atlanta suburb to fill the vacancy created by Republican Tom Price was foolishly blown out of proportion from the start by Democrats.  They made it into a referendum on Trump and created all the hysteria and expectations about victory. The media and other political pundits across the nation did the same.  Wrong.  As I have repeatedly argued, one special election should never be treated as a harbinger or referendum on anything beyond what happens within that district.  As former House Speaker Tip O’Neill once said, all politics is local.
Yes, national issues may intrude, but local races are ultimately decided by local issues.  Candidates and parties who think there are national, one-size-fits-all, cookie cutter strategies to winning across the country are doomed to lose.  Each race is unique, no special election is a proxy for the nation. To think otherwise ignores the reality of statistics and not generalizing from one election to the rest of the nation, and it simply ignores demographics and trends that define each district.
But yet again Democrats could not resist.  They made Georgia a do or die.  They saw a district that Trump won last year by 1.5% and thought they could win the congressional seat even though the then incumbent in 2016 won a blow-out victory.   They assumed Tuesday there would be a coat tails effect (Trump did not win by much and so perhaps they could win this congressional seat) even though there was no coat tails effect last fall. They declared probable victory, dumped money, time, and other resources into it.  But mostly they dumped hype into it.  What they did not dump into it was a narrative and strategy.  Instead, they yet again pinned hope on dislike for Trump, changing demographics, and believe that Democrats and other voters will come to their senses and vote for a Democrat would be enough of a strategy.  It wasn’t, and it should not have been a surprise.  After all, this was Clinton’s strategy and she lost.
Because Democrats made such a big deal of this race, creating expectations wildly beyond the probable, losing the special election is now devastation. It is seen as a victory for Trump, a loss for the Democratic Party, and the pundits will declare it as just that.  Democrats would have been smart not to have nationalized this race, instead treating it as a special local election and developing a candidate, narrative, and strategy suitable for the race. They should have said it was a long shot to win in the South, that the Republican was heavily favored, and then if they won or got close they could have declared a victory if they wanted.  At the end of the day, did anyone seriously think a Democrat was going to win in Georgia?
So a race that should have meant nothing now means everything.  It shows Democrats learned nothing from the Clinton lose and Trump victory last year.  Democrats going into 2018 have no narrative to win except to say Trump is terrible.   They have no agenda or policy platform to appeal to working class voters who fled the Democrats for Trump.  They still think demographics is destiny, and that they will win simply by being a reasonable alternative.  The Georgia loss is meaningful because it reveals all these flaws in the Democratic Party game plan and now they will have to suffer through the Trump and Republican gloating and pundit pounding for creating their own hyped-up disaster.

Friday, June 16, 2017

A Tale of Two Cities: Reflections on the Minneapolis and St. Paul Mayoral Races

Minneapolis and St Paul are two cities.  No, not two separate cities, but two cities each within
themselves. Both are shining cities on the hill for those who are white, affluent, and live in the right neighborhood.  They are cities of concentrated poverty, racial disparities, and lack of opportunity for  people of color, the poor, and those who live in the wrong neighborhoods.  The defining issue for the 2017 Minneapolis and St Paul mayoral elections ought to be about rectifying the difference between the two cities–providing justice to all to prevent the conditions that led to the deaths of   Jamar Clark and Philando Castile, but so far that has not been the case.
Minneapolis and St. Paul are great cities with a wonderful quality of life, for some.  But both are  hugely segregated by race and income.  It was that way nearly 20 years ago when I worked for the University of Minnesota’s Institute on Race and Poverty and we documented that segregation.  Over a generation little progress has been made. They remain cities with  neighborhoods torn by concentrated poverty, race, crime, and disparate educational outcomes.  They are cities where wealth is concentrated in the urban core and in a few neighborhoods, leaving many others behind.  Mayor Hodges, and before her R.T. Rybek and before him Sharon Sayles Belton, all promised to put money into the neighborhoods, to delivery economic development for the least advantaged, and either failed or ensnared in the demands of downtown urban development.  The same is true for Chris Coleman and before him Randy Kelly and Norm Coleman.
This year, largely  the candidates are failing to talk about the other cities within Minneapolis and st Paul that have been left behind.  The candidates do not seem to run on the quality of city services such as making sure that the streets are safe,  plowed, and pot hole free, that the garbage is picked up, housing codes are enforced, or the police respond when called.   Instead they are running against Donald Trump, talking about bringing more events such as the Super Bowl or other sports events to their city, or being the greenest city in America.  All lofty goals but not what cities are about.  Or in the alternative, when they do discuss the core issues of poverty, homelessness, or city services, they fail to mention something simply–how to pay for it.  Minneapolis and St Paul have finite resources, property taxes are going up rapidly, and the traditional middle class feel squeezed that they cannot afford to stay in their homes anymore, or that they cannot buy or rent a place in the city.  Raising taxes is not the solution.
The issue for Minneapolis and St Paul is social and economic equity. Fundamentally, the defining issue for the two cities is creating economic opportunity for all.  It is making it possible for individuals, regardless of race or neighborhood, to have a decent job, a choice of where to live, a voice in where to send their children to school.  The role of the mayor is steering investment, encouraging economic development, making it possible for people to create their own businesses.  Expand the economic base for all, especially those who are left out already, and that is they way to generate the resources both to finance the city and help those who have been left behind.
Such a vision for the two cities requires several things.  Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood.  Rethinking the two cities’ comprehensive plans is one step.  Allowing in some places for more intensified or mixed development, to allow some people to  invest in their own neighborhoods will help.  Yet private investors and banks will not act on their own to finance this.  Both cities need to think of their own investments in terms of streets, sidewalks, and  other services such as code enforcement.  The cities can help foster the conditions for economic development in their various neighborhoods, but they can also do things such as provide micro-financing to help some communities and guarantee loans in some situations.  Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity-based.  Thus, both place-based and mobility strategies are needed.
But that is not enough.  Businesses or people invest where there are skilled workers.  Strategies to attract and remain college graduates and provide real training for those lacking skills too are important.  Better partnerships among the local colleges, employers, and workers to train and connect businesses to people should be on any mayoral candidate’s agenda.    Quality services, the amenities of parks, libraries, and the arts are too what candidates should be discussing.  So too should they be talking about schools.  No, mayors cannot improve schools themselves, that is not their job.  But they can provide the conditions that make it possible for children safely to go to schools, or to live in neighborhoods that support learning though the maintenance of libraries and communities centers, for example.
Finally, both cities must directly confront the discrimination that exists within their borders.  More aggressive human rights enforcement is one answer.  The tragedy of the deaths Minneapolis  and St. Paul residents Jamar Clark and Philando Castile is a story of both racism and failed economic opportunity.
I certainly do not pretend to have all the answers. Yes, I have worked as a city director of code enforcement, zoning, and planning, been housing and economic planner, consulted and trained many local governments, and taught and researched planning and urban politics and local economic development for years.  None of that means I have all the answers.  But what I do know is that a city is its people, that all neighborhoods should have opportunity, and that what the mayoral candidates in both Minneapolis and St. Paul should be talking about is how to grow the economic opportunity  for all and how they plan to pay for the visions they have.

Saturday, June 10, 2017

Trump and Obstruction of Justice: What did the President do and why?

The penultimate question of the 1973-74 Senate Judiciary Committee investigation of Richard Nixon and Watergate was Republican Senator Howard Baker’s “What did the President know and when did he know it?”  Now the question to be asked is “What did the President do and why?”
Former FBI director James Comey’s testimony on June 8, was significant in many ways.  The first was that it represented a major transformation in the debate surrounding Donald Trump and his presidency.    If before Thursday the main line of questioning was Russian involvement in US elections along with Trump or his surrogates collaboration with them (and that is still a major and important focus of the congressional and special prosecutor investigations), the Comey testimony shifted the debate to questions of whether the president engaged in obstruction of justice when he took certain actions against him or others.  Second, the testimony places Trump and his defenders on the defensive, further damaging the policy agenda of a presidency that is already dead.
Prior to Thursday partisan Democrats fantasized about a Trump indictment and impeachment.  But that was the talk of MSNBC ratings mongering and hyperventilated blog sites.  Republicans largely could ignore this talk, dismissing it as partisan chatter.  Yes the NY Times, CNN, and the Washington Post speculated on this too, but again more to sell papers than anything else.  Comey’s testimony changed that, putting Republicans, conservatives, and Trump supporters on the defense.  The focus of the public discourse , even on Fox national news, now is on whether Trump broke the law, specifically engaging in criminal obstruction of justice.  The former now are debating on the latter’s terms, and this is not good for Trump.
Too much of the debate since Thursday has been predictably partisan, breaking along Republicans acquitting Trump and Democrats convicting him.  But there is no question that the debate now centers on the two questions of what did the president do and why?  The reason for this gets down to basic criminal law–proving actus reus and mens rea.
For anyone who has every taken a criminal justice law  course they know that there are two elements to proving someone is guilty of a crime.  First one must prove that one did a specific deed in question that is prohibited by law–actus reus–and second, that the person acted with the requisite mental intent–mens rea.  Criminal liability is not strict liability–the government must also prove some level of intentionality, and do so beyond a reasonable doubt.  In a free society such as the United States, the government carries the burden to prove guilt, and a jury trial is the classic mechanism of determining that, assigning to 12 reasonable people the task of ascertaining whether the burden has been met.
Obstruction of justice is defined in various places in federal law.  18 U.S. Code § 1505 declares as obstruction of justice:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—


Section 1505 has two important requisites.  One refers to actions that seek to obstruct, impede, or influence some proceeding by any federal agency or Congress (actus reus), and the other to the corrupt purpose (mens rea).  To show that Trump engaged in both one needs to prove both elements and that there is a nexus or connection between the two.
Much of the Comey testimony centered around actus reus–what did Trump actually do.  There were accusations about whether Trump said certain things to Comey such as call him to encourage him to stop the Flynn investigation.  While Trump has called Comey a liar and vice-versa, it would be hard to impeach Comey.  Yes, he may be a disgruntled former employee with reasons to get even, but given his long track record in government there is no reason to question Comey’s veracity under oath  where lying to Congress would bring with it both a major blow to his reputation and a possible felony charge for lying to Congress.  Some of the Trump defenders are factually challenging the Comey testimony, but instead the real battle has shifted from what the president did to what he intended.
Trump’s defenders are arguing that the president did not fire Comey to impede any investigation.  They offer some alternative reasons for his dismissal.  But increasingly they seem to be arguing a case of ignorance–that Trump simply did not understand how government works and the protocols about contacts between the president and his staff, especially those who do investigations.  Such a defense is damning the president with faint praise.
Such a defense first effectively  concedes the president is clueless about how government works and what a president can do. “Trump is not a crook because he had no idea what he could do as president.”  For someone who argued his fitness to be president, this is not a ringing endorsement of the president by his defenders.   Moreover, such a defense holds Trump to a lower standard of conduct than his predecessors.  I do not recall anyone giving Obama or previous presidents grace periods to learn their job or get up to snuff in terms of understanding their legal and constitutional duties.  One is president from January 20, upon taking the oath of office.  In addition, even if the president did nothing illegal, I see no one discussing the ethics of this issue.  By that, under any code of conduct that would should hold any public servant to, Trump’s behavior with Comey (and perhaps more broadly as president) is hardly the model of ethical conduct and decorum.  It should not just be enough to hold someone up to a minimum legal standard of conduct; the ethics of public service sets a higher bar and none of Trump’s defenders seem nowhere near defending the ethical propriety of their man.
Second, how many times have we all heard the phrase “ignorance of the law is no excuse.”  I cannot commit a crime and then say I am innocent because I did not realize I am not supposed to rob, kill, etc.”  Intentionally is generally about wishing to do something prohibited by the law, not necessarily intention to break a law I know that exists.  If I intend to kill someone I am guilty of murder even if I did not know the murder statute exists.  To say that Trump may have intended to fire Comey to impede an investigation but that the president did not violate a law because he did not understand how government operates is simply besides the point.
Third, even if Trump did not understand what he could do as president, the Justice Department is full of attorneys who could have advised him.  Other presidents turn to counsel to get advice, there is no reason for Trump not to have done so.  Fourth, some argue that there is no smoking gun to prove intent, such as an actual memo or tape recording, and therefore any speculation about mens rea is merely circumstantial.  In reality, determinations of intentionality are often if not usually circumstantial; intent or what is in our hearts is often proved by what we do under specific circumstances.  Thus, to show Trump acted with requisite intentionality to violate federal law, the standard would be whether 12 reasonable jurors with open minds would come to believe beyond a reasonable doubt that Trump intended to corruptly impede, obstruct, or influence a federal investigation.  The simply answer is right now we do not know, the investigations are only beginning and they will take time.  We should neither rush to judgement nor dismiss the accusations at this point, the fact finding has only just begun.
These investigations are a problem for Trump.  Once Nixon, Reagan, and Clinton were facing investigations, their presidencies effectively ended.  But for all three in occurred in their second terms after each has achieved significant policy victories.  Trump has no legislative policy or other real victories to count, and his presidency is now hobbled from its inception.  The irony  here is that if one loved the gridlock of the Obama years, we now will face that at least as long as the Mueller and Congressional investigations continue, which certainly will be well into 2018.

Saturday, June 3, 2017

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.
            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  
             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.
            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.
            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 
In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.
While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.
The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.
Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.