Guilt, Truth, and Politics in the Age of Hyper-Democracy

Sexual harassment and assault are wrong.  But it is not so clear that the court of public opinion is

the best way to adjudicate the truthfulness of any allegations or statements about public figures and officials  in era where alternative facts seem to be facts of life.   The problem here is that there is a fundamental confusion among  the concepts of the marketplace of ideas, the court of public opinion, real courts, and how all of them operate in a hyper-democracy that the United States has become.
Determining what is truth or true is never easy.  But in law and democratic politics there are rival notions of finding the truth.
In US law the adversarial process and courts are the mechanisms at arriving at truth.  Questions of guilt or innocence in criminal law or culpable or not in civil law are determined in a structured setting where there are formal procedures that determine what is admissible evidence, factors to consider when determining the credibility or witnesses, and there are procedures put into place that seek to guard against bias.  The adversarial process is not perfect, but it does usually provide a structured reliable path that determines the truth of a matter.
Democracies are messy.  At their best truth is determined through the marketplace of ideas as described by philosopher John Stuart Mill where competing ideas challenge one another in a process that allows for truth to emerge.  The marketplace of ideas presupposes truth exits, that there are ways to find it, and that rules can guide its discovery.  Truth is not necessarily what 50% plus one of the population thinks. Yet the marketplace of ideas does not always work, instead degenerating to simply where majority rule decides what is true via the court of public opinion.
There is a long line of political thinkers, historians, and scholars ranging from James Madison, Alexis deTocqueville, James Bryce, and even to Elizabeth Noelle-Neumann who worried that in America the powers of public opinion would produce a tyranny of the majority.  Passions aflamed, majorities might rush to judgment and suppress the rights or others.  When it works well, public opinion and majority rule are great ways to determine who should be the next president of the United States, or for the public  to adjudicate rival claims made by candidates to decide which they prefer, but it is not clear that either are good mechanisms to decide guilt, culpability, or truth.
In most cases there is a big different between whether someone is legally guilty or liable for an act versus whether someone is fit to serve in office.  This is the difference between law and politics. Law is about real courts, politics is about the court of public opinion.  But when the two are merged–as in case of determining whether allegations against Senate candidate Roy Moore or Senator Al Franken are true and how they address their fitness to serve in office–then the rules are  unclear.  What standards of proof do we need to decide if the accusers are telling the truth and are credible and how do their stories overall fit into defining whether Moore or Franken should be senators is not clear.
And the problem is now exacerbated in our hyper-democracy.  Here accusations are flung  out immediately into the social media without any serious vetting in a world where it is all about being first to report, maximize hits or likes, or generate audience and profits..   Accusations, rumors, and innuendo can be shot immediately through Facebook and Twitter, distorted by partisan politics, confirmation biases, and cognitive dissonance.  Accusation is enough to render someone guilty, liable, and unfit for office.  Image the Salem witch hunts and the McCarthy communist accusations in a social media era and that is what has emerged.  It is tyranny of the majority, the pressures of uncontrolled public opinion operating through an unconstrained court of public opinion judging individuals in ways that make it impossible for them to prove their innocence.
The court of public opinion in a hyper-democracy is not suited either to determine legal or real truth as real courts or the marketplace of ideas can.  In the court of public opinion there are no rules, no definitions of truth, no standards of conduct that provide clarity.  What we are left with  are rival ideologies and pronouncements of opinion masking as truth.

Moore, Franken, and the New Politics of Sex

Sexual harassment, discrimination, and assault are wrong.  But there is a difference between accusations of the three and guilt.  Yet in a post-HarveyWeinstein world, we are dangerously close to treating accusations as guilt, pushing our culture into another Salem witch hunt or McCarthy era that will damage many individuals, permanently labeling them as modern day witches or communists who can do nothing to prove their innocence or redeem themselves.
Fear and prejudice has led America to do many ugly things.  It all started in Salem, Massachusetts in 1692.  Told brilliantly by Arthur in the Crucible, 20 individuals–14 of which were women–were accused of being witches, and hung or died as a result of the accusations.  Those accused were done so because they were unpopular, or scapegoats given up by those who wished to blame others for offenses they were accused of and were able to save themselves by implicating others.
Salem is the story of the ugly side of American society.  Overtime we have had many Salems.  The city and its witch hunts are the backdrops for Miller’s Crucible, written at the height of the McCarthy era in the 1950s, where congressional hearings and the question “are you now or have you ever been a member  of the community party?” denounced individuals as guilty simply by accusation or invocation of the right to remain silent.  Thousands lost their jobs, Hollywood decimated, often because they held views, joined organizations, or supported causes, sometimes many years earlier, which some deemed objectionable.
Some will claim false equivalence in  equivocating sexual harassment, discrimination, and assault with accusations of being a witch or communist.  Witches don’t exist and the McCarthy era  was about an attack on the First Amendment.  But Salem and witches are metaphors.  Many live in Salems–closed communities or bubbles of like-minded people who fear outsiders and condemn  them with nary a hint of real evidence of something heinous.  It is guilt unless improbably they prove their innocence.  It is judging someone as evil regardless of the gravity of the action simply because they did something objectionable somewhere or sometime in their life, regardless of the circumstances.
For nearly 20 years I have taught professional ethics.  Among the questions I ask is how to we judge the relationship between the personal and professional role of public officials?  Can one be an ethical Senator, for example, even if one is not so in his private life?  Or what if someone did something wrong years ago–perhaps at a time before they held office–should that action continue to define their character for the rest of their life or career?  At one point does something we did perhaps in our youth years ago define who we are today, rendering us unfit to serve?
None of us are angels.  We are all human and make mistakes. Yet to let one mistake condemn us to purgatory or hell may be wrong.  At some point what one did, when, why, how many times, and how matters.  How and whether it interconnects our personal and professional lives are matters of judgment and fine moral distinctions.  We also need to distinguish between bad acts and what the philosopher Aristotle labeled habits of character which define who we are.  Judge based not necessarily on one or several mistakes but on how they define a person’s overall character.
There is a moral or ethical difference between crude sexual jokes and sexual assault and treating them all as equally disqualifying for office does a disservice to how we judge culpability for bad behavior.  There needs also to be recognition of the changing standards of conduct that define the ethics of actions. There is a slippery slope here.  At one time being gay, divorced, having an affair, or even smoking a joint were considered damning grounds to exclude one from public office or declare one to be a witch.   Yes, sexual assault and discrimination should always have been wrong, and the same might be said of sexually offensive gestures or statements.    But in some cases it may be unfair to judge people by contemporary standards for actions that occurred along time ago when standards were different, or when individuals were young, immature, or simply different people from whom they are now.
Portia in William Shakespeare's The Merchant of Venice declares that “The quality of mercy is not strain'd,” Forgiveness is our better virtue in many cases.  Our society and prisons are jammed with many people whom we  refuse to forgive, condemning them for life for mistakes that they have  made at one time in their life, perhaps long ago.  Might as a society it be more just and fair we give some a second chance?  Might as a society we be more just and fair and not jump on the bandwagon and condemn equally all who said or did something we find offensive.  There are powerful differences among what Roy Moore, Al Franken, Donald Trump, and others did, or allegedly did, as well as what many in Hollywood are accused of.  Treating them all the same–as witches with equal culpability –is too crude of a way to address the problems of sexual harassment, discrimination, and assault in our society.

Unfit to Hold Office: Sexual Harassment and the Minnesota Legislature

Are Minnesota legislators who sexual harass colleagues or members of the public unfit to hold office? The answer should be yes, and both the Minnesota House and Senate should be prepared to reach this conclusion if Representative Cornish and  Senator  Schoen do not resign  and the two legislative bodies are required to judge the fitness of these two members to remain in office.
There appears to be a sea change afoot in politics when it comes to gender discrimination.  Inspired by the accounts of the like of Bill Cosby, Harvey Weinstein, Roy Moore (Senate candidate in Alabama), and Donald Trump, it is possible that there is a new political standard emerging in politics that make the creation of a sexually hostile environment by elected officials wrong.  If that  is the case, then the standard of conduct expected of public officials is only 30 years behind the times.
In 1986 in Meritor Savings Bank  v. Vinson,  477 US 57 (1986) the US Supreme Court ruled that sexual harassment in the workplace was actionable as sexual discrimination  under the 1964 Civil Rights Act.  Prior to that decision, short of actual unwanted  physical conduct, women (who are mostly the victims) had little recourse against their bosses or co-workers when they made unwanted sexual advances or engaged in unwanted sexual language.  Meritor Savings changed that.  It, along with rulings by the Equal Employment Opportunity Commission (EEOC) said that there were two forms of sexual harassment or discrimination.
The first is quid pro quo–conditioning employment upon the exchange of sexual favors (“Sleep with me if you want to keep your job”).  The second is hostile environment–creating a workplace where  unwelcome conduct based on sex or gender that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  Such conduct need not br specifically directed at a particular person, but it can include offensive jokes, remarks, pictures, and general discussion by employers, managers, or coworkers.
Across the public, private, and non-profit sectors, most people get it, sexual harassment is wrong, and grounds for discipline and dismissal.   But some still do not, and among those who don’t, it appears some are elected officials.  It should not only be wrong to harass your staff, but also your legislative colleagues and even lobbyists and members of the public.  While the public may not always view legislators and lobbyists  favorably, they should not be sexually harassed.  For legislators, unwanted sexual advances are part of the good old boys club that pervaded for so long, and which appears to persist.  It sends a signal that women are second rate, and that they, their work, and the legislation they advance is  judged not on it merits but how they look in a dress.
Lobbyists advocate for their members and they should not be hit on when doing they job.  While not employees of the legislature, they nonetheless are in a power differential position when it comes to legislators, potentially feeling that  they must  acquiesce to sexual overtures as a condition of doing their job.   Such behavior  sends signals also to constituents and the general public that if they too are female they may to exercise their First Amendment rights in a sexually hostile environment..  The point here is that sexual harassment by legislators  undermines democracy by chilling half the population out of exercising their rights to free speech.
So what should be done?  Ultimately the conclusion should be that all forms of sexual harassment by Minnesota State Legislators is wrong and grounds for removal from office by the House and the Senate.  The Minnesota Constitution, Article IV, Section 6 declares that: “ Each  house shall be the judge of the election returns and eligibility of its own members.”  This clause gives each house the power to set and judge the ethical standards of its members, setting their own standards on evidence needed to prove violations.  It need not be a standard of beyond a reasonable doubt found in criminal law, but something less than that in the judgment of the House and Senate.  The level of proof demanded in many ways sets the standard of ethical conduct for its members.
Senate Rule 56 declares that it may discipline members who display behavior that “violates accepted norms of Senate behavior, that betrays the public trust, or that tends to bring the Senate into dishonor or disrepute.”  House Rule 6.1 says the same thing.  One would hope that the two chambers would conclude that sexual harassment of not just staff but other legislators, lobbyists, and the general public, would be something that violates these standards, rendering members who do this unfit to serve.

Advice to Mayors-elect Carter and Frey: Ten Lessons about Successful Governance

Dear Mayors-elect Carter and Frey:

Congratulations on your elections as mayors of St. Paul and Minneapolis, respectively!  Your elections mark many important transitions for the two cities, not the least being the beginning of the shift of political power from the Baby Boomers and GenXers to the Millennials.  This generational shift brings with it new ideas, politics, perspectives on the world, and an ideology about governance.

 In many ways your election reminds me of when I worked on a mayoral campaign back in New York where I grew up, helping to elect a then 37 year-old woman who became the city’s first female and Baby Boomer elected as mayor.  I served on her transition team, and then in her administration as the city director of planning, zoning, and code enforcement.  What I learned then and over my years as a professor and as someone who continues to work with local governments is that there are some basic rules or values of good governance that never die, even if politics or values change.  As the two of you prepare to take office, I hope these ideas are useful.

First, remember a city is all its people.  Not some of the people in part of the city but all of the people across all of the neighborhoods of Minneapolis and St Paul.  For too long mayors of both cities have failed to commit development and resources across the entire city, leading to uneven development.  As a result, parts of the city are developing and others stagnant.

In many ways, 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 have been in part 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, and all the anonymous individuals who are victims of race and poverty.

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 were ensnared in the demands of downtown urban development.  The same is true for Chris Coleman and before him Randy Kelly and Norm Coleman.

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.

Second, stick to the basics.   Cities are about the delivery of basic services.  It is about housing, streets, sewers, water, parks, putting out fires, and arresting the bad guys.  It is not about world peace and global issues.  Recent mayors have forgotten that.  Mayors can do little directly to help schools or improve education but they can stabilize neighborhoods and develop social service and community programs to support schools.

Third, Minneapolis and St Paul have finite resources.  In the two cities  property taxes are going up rapidly, and the traditional middle class feel squeezed such 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 always  the solution.  If one wants to raise the minimum wage to a living wage, then one also needs to think about creating the businesses and jobs that will provide these types of wages.

Fourth, remember the demographics.  Minneapolis and St Paul are demographically and generationally changing.  Build your political base and plans for a future–do not seek to look backward and simply aim for holding together a coalition from the past but look to what you can do to work with our new residents and future leaders to develop the next generation of leaders to follow after you.

Fifth, it is about balancing economic development with housing, downtown with neighborhoods.  There are connections between the economic strength of Minneapolis and St Paul and how well their  housing does.

Sixth, be realistic.  Develop Minneapolis and St Paul as the cities they  could be, not the one a fantasy pines for.  Make decisions based on real data, realistic projections, and not on political rhetoric and hope.

Seventh, have a plan.    Have a real plan for your cities. By that, talk to residents and business people.  Construct a serious Comprehensive Plan with realistic zoning specifications.  Let your planning staff do its job and project what makes the most sense and what is the best use of property, land, and space.  Do not let the market alone dictate what happens–using planning to guide markets.

Eighth, think regionally.  Minneapolis and St. Paul are the largest cities in the state if not in the upper Midwest region.  They are the drivers of the metropolitan economy and what happens in these two cities has a far wider impact than simply what happens within the borders of Minneapolis and St.  Paul.  Think about building regional alliances and strategies not just with one another but also with your suburbs.

Ninth, not only is a city its people, but the public is your customer, your citizens or residents, and your partners. Successful mayors understand that the people they serve occupy all three roles and realize that they cannot succeed unless all work together.

Finally, govern to lead and not simply to get reelected.  Ambition is good but first of all, you are trustees for the public good, with your first mandate being to serve the communities and people you represent.

Understanding the Minneapolis and Saint Paul Elections: First Draft

What did we learn from the Minneapolis and St. Paul elections, specifically with Jacob Frey and Melvin Carter, respectively, elected as the new mayors of the two cities?  The simple answer is that what happened in these two cities has significance well beyond their borders.

Turn first to Minneapolis.  It is less clear that this is an election endorsing Frey or voting for him than it was one rejecting the incumbent Betsy Hodges.  After the first round of voting Hodges received 18.1% of the first-choice votes, meaning more than 80% voted against her.  The voters clearly did not like her style, handling of issues such as police use of force or crime or her oversight of the construction on Nicollet Mall.  But that did not mean that any one candidate emerged as the alternative to her.  Council member Jacob Frey did not even receive 25% of the vote.  In fact, the top five candidates split up 96% of the vote, with each receive more than 15% of the vote.  

What emerged was a city polarized and divided.  It is not clear that Frey enjoys widespread support of most of the constituencies in the city, and he clear has a long way to go in terms of his ability to reach out to the business community.  In addition, given his lack of administrative experience and really, his general lack of experience in government (only his tenure as a city council member), and the fact that the mayor’s position in Minneapolis is relatively weak, it will be a challenge for him to govern.  This is especially the case when it looks also as if the city council will have several new comers and it too is divided.  Frey won less because of his positions (in many ways his positions were not so different from Hodges) and campaign and more because Hodges was unpopular, the opposition was divided, and he was the strongest of those who were not the mayor.

But perhaps one of the less appreciated or overlooked events that took place in the Minneapolis elections was that City Council President Barb Johnson lost.  This is an enormous blow and loss of institutional knowledge and skill in Minneapolis.  She held together a factional city council since 2006, and her loss means both a new mayor and council president taking over at the same time.  The challenge will be to figure out how to govern in Minneapolis.

St. Paul’s election was a surprise in the sense that almost everyone thought it would be a close election between Melvin Carter and Pat Harris. In the end Carter won for several reasons.  He had a better campaign, name recognition, and more DFL endorsements that were meaningful.  But also, Pat Harris’s campaign was not as good as many assumed.  But the real game-changer was an ad by the Police union (Building a Better St. Paul) that accused Melvin Carter’s stolen guns as being involved in crimes.  This was perceived as a Donald Trumpish type of race-baiting that backfired.  It energized many to vote and probably also turned away some from Pat Harris who was stuck.  If he fully disavowed the group and ad then he repudiated his base, if he did not act aggressively enough he would be seen as endorsing this attack.  In the end, he waffled, and it hurt him.

Electing Frey and Carter as mayors of the two largest cities in the state is significant for several reasons. First, they are young, and it signals a passing of the DFL leadership mantle to a new generation.  This started already in Minneapolis four years ago.  In St. Paul, with Carter elected and Coleman out, the latter may well be the last White Irish Catholic mayor in the city, recognizing the changing politics and demographics in that city.  Second, both are liberal.  There liberalism will push the two cities further to the left on a range of issues.  This will have an impact not just in the two cities, but both regionally and state-wide.  Regionally, if both cities move to establish living wages for employment in their towns it could have an impact in terms of how other cities in the region have to respond.  Additionally, if the two cities move further to the left, it potentially causes a political schism between the DFL there and across the rest of the state.  It also sets in motion a potential stronger urban-rural or DFL-Republican conflict in the state.

A Note on my Predictions

            So how well did I predict the mayoral elections in the two cities?  In the end I got some things right and some wrong.  There were no surveys or polls to use to help make election predictions, so I was shooting in the dark, so to speak.  In a September 21, 2017 blog I made the following predictions:

Predicted:

Frey 26%
Hodges 24%
Dehn 20%
Hoch 15%
Levy-Pounds 10%

Final first-choice votes

Frey 24.97%

Hoch 19.27%

Hodges 18.08%

Dehn 17.34%

Levy-Pounds 15.06%

The final order of votes after RCV was applied, had Frey winning, followed by Dehn, Hoch, Hodges, and then Levy-Pounds. I clearly overestimated support for Hodges and underestimated that for Hoch and Levy-Pounds.  I let you decide how good my predictions were.

And the Winners of the Minneapolis and St. Paul Mayoral Elections Are...

I don’t know.  But I think it is still Betsy Hodges and Pat Harris, but it is still too close to call.
For two major elections in Minnesota it is odd that there is very little data upon which to make decisions.  Perhaps that is good–not letting pollsters drive an election.  But for those of us wishing to make sense out of elections, the absence of any polling or survey data on Minneapolis and St. Paul makes predictions and analysis difficult. Not only do we not have polling data on who is likely to vote, which candidates are the first choice of voters, and which candidates are the second and subsequent choices of voters, but will also do not have some other basic data about the electorate. 
By that, even though both cities are overwhelming Democratic, we do not know what the real percentages of the electorate are in terms of Republican, Democrat, and Independent.  Even among Democrats, how they break down into how liberal, or whether they are pro-business, environment, or civil rights orientated, or how race factors into voting preference, we do not know.  Largely, unless the campaigns have data they are not sharing, there is little in terms of good research available to make meaningful predictions.  Even more–as someone who worked on or managed more than 50 campaigns in the past–having good data is critical to strategy and get-out-the-vote plans.  Without such data campaigns are simply guessing to what will happen or what to do.  In an era of big data and political micro targeting, on the surface it looks as if the mayoral campaigns in the two cities are largely operating in the dark.
In St. Paul it is a two-person race between Harris and Carter.  For weeks I thought there would be no first round winner and that RCV would be decisive.  At one point I thought Carter wins the first round but Harris takes it subsequently.  The Building Better St. Paul attack on Carter explicitly injected race into the campaign and it perhaps looked to be game changer to give the election to Carter.  That may still happen, but more than a political week of eternity has passed and I am not sure that the racial attack will be as big a game changer as thought.   Race will still be a factor in the election, but in different ways.  Will Dai Thao’s voters come out and only cast a first choice for him?  Will the old White Irish Catholic vote come out strong for the safe white guy Harris?  How motivated is the party base to make Carter their version of Obama?  With a possible 20-25% turnout, the logic of small numbers kicks in and slight shifts in turnout will decide the outcome.
In Minneapolis Hodges is unpopular and has run an inept campaign but she probably remains the favorite to win.  She does so because the DFL machine, if there is one still, favors her, and because still no candidate has emerged as the clear anti-Hodges alternative.  As I said several weeks  ago, Hodges can poll in the low to mid 20 percent in the first round of voting and still win if she is the preferred second choice of most voters. That assumes that among other voters they do not know the other candidates will and prefer Hodges as the devil  they know as opposed to the devil they do not know.  But there is also a chance that Hodges is so disliked that “anyone but her” is the option of most voters, again in an electorate that may be in the 30% range.
We also do not know what the voter ID bell curve looks like in Minneapolis.  Among those who will vote, how liberal and what type of liberals will they be?  For those who are not DFL, pro-business,  or more centrist, if they turn out to vote, Tom Hoch is the likely choice.  If the voters are  looking for the Hodges alternative with name recognition, then Frey is the likely choice and winner.  Minneapolis’s liberalism and voting patterns are much more difficult to predict than St. Paul this election, in part because there are three to maybe four candidates that have a real chance of winning,  and with a total of five who could possibly top 10% in the first round voting.  Perhaps for the first time since RCV was adopted in Minneapolis, it may actually make a real difference in who becomes mayor.
Given the above factors and the lack of real data, predicting who will win on Tuesday is complicated.