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.