Sunday, March 18, 2018

Why a constitutional convention is a bad idea

Today's blog originally appeared on March 18, 2018 in the Pioneer Press.

Anger with Washington, D.C., gridlock is understandable. Bipartisanship is gone; straight party-line votes are the norm; and special interests and their money dominate the political process. Many see our Constitution and Bill of Rights as out of date. Some hate the Second Amendment right to bear arms, the Electoral College or abortion or see the president as too powerful or Congress as trampling on states. The system needs to be fixed.

Yet a constitutional convention is a dangerous and uncharted mechanism to address these problems. In fact, it might be distorted by the very special-interest money that reformers want to fix, doing serious damage to our government and individual rights.

Minnesotans should reject resolutions currently before the state Legislature calling for a constitutional convention.

Article V of the U.S. Constitution describes two ways it and the Bill of Rights may be amended. One is where amendments are passed by two-thirds of both the U.S. House and Senate and ratified by three-fourths of the states. So far, every amendment to the Constitution has been done this way. But Article V also allows for two-thirds of the states to call for a constitutional convention, with a vote of three-fourths of the states necessary to adopt any amendment at the convention. This process has never been used.

If a constitutional convention were called by the states under Article V, it is not clear how much could be done to prevent the process from being captured by and dominated by special interests. The reason is both because current law is inadequate in its ability to control special interests and because there is no framework of law that addresses what role groups or money would have in a constitutional convention process.

Because no constitutional convention has ever been called under Article V, exactly what rules govern are in question. One theory would be that the existing rules of the Constitution, Bill of Rights and federal law would apply, including the existing legal precedents of cases such as Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). This means that corporations and wealthy donors could expend unlimited amounts of money to affect and influence the deliberations that would take place in such a convention, as well as to influence the ratification of any amendments that would be proposed.

Nothing would prevent any groups from expending money to influence the calling of the convention, the deliberations or the process of ratifying any of the amendments proposed. All of these would be protected by the First Amendment as either issue advocacy or a legitimate activity to petition the government.

It is also not clear that the courts would have the authority to review or monitor any of the activities or deliberations that would take place in the conventions. In cases such as Baker v. Carr, 369 U.S. 186 (1962) and Coleman v. Miller, 307 U.S.433 (1939), the Supreme Court declared that the issue of amending the Constitution is a topic textually committed to Congress. It simply may not be possible for the courts to review any claims that special interests had undue influence over anything that happened in the convention deliberations.

At present, there are no rules regarding who can participate, give money, lobby or have a voice in a constitutional convention. There are no rules about conflicts of interest, disclosure of who is giving or expending money. No rules exist that address political action committees, corporate or labor union involvement or how any other groups can or should participate. Not only might legitimate voices of the people be silenced by convention rules, but special interests may be given privilege to speak and affect the deliberations.

Finally, there are no rules limiting what can be debated at a constitutional convention. Given the potential domination by special interests, who knows the result? The Second Amendment gets repealed … or strengthened.  Abortion outlawed, freedom of religion or speech limited or search warrants abolished. All this is possible and could not be controlled by the courts or the people.

While a constitutional convention sounds good in theory, it is a dangerous idea that should be rejected nationally and in Minnesota.

Friday, March 16, 2018

Shake Ups with the Trump Foreign Policy Team Continue to Weaken the US Internationally

What can we make of the recent shake ups with US President Donald Trump’s foreign policy team?  The simple answer is it is a further sign of confusion within the administration that only will
contribute to ineffectiveness in foreign policy and, second, it is a further retreat from soft policy defining American international strategy.  The new result is a continued weakening of the US on an international stage, especially dangerous as Russia and Putin seem embolden.
First, there is no surprise that Secretary of State Rex Tillerson is gone.  He never seemed to have much support from Trump and in the last few months his position and status have dramatically eroded.  In part this reflects Tillerson’s lack of diplomacy skills and also the fact that Trump did not seem to view diplomacy as a major aspect of his administration.  Evidence of that is that many State Department positions are unfilled even to this day and many careerists have departed.     Moreover, Trump seems to prefer a more muscular or militaristic or hardpower aspect to foreign policy as opposed to the use of soft power.  His administration was full of generals (for now). Thus, no surprise Tillerson is gone except to ask why it took so long.
What will it mean now that Tillerson is leaving?  Obama was criticized for his pivot toward Asia and ignoring Europe but in many ways this is what Trump has done so far and will continue to do as president.  He has made China a major trade and economic enemy and North Korea is a major focus of conflict bordering on military action.  There will be little change here with Mike Pompeo from the CIA taking over.  In fact, he may complicate possible talks with North Korea which will require the Chinese to cooperate. 
How the new Secretary of State tries to push China while also trying to do talks with North Korea will be interesting to watch.  If he does not change his rhetoric toward China one can expect that there will be increased tensions with China and perhaps more trade tariffs on China.   Moreover, there is no indication that there will be a renewed focus on Europe and Russia.  Yes the US did issue new sanctions against Russia to punish it for its interference in its 2016 elections, but Trump himself did not act, it was the foreign policy establishment.  While the foreign policy bureaucracy in the US is powerful, Trump seems to be ignoring it, leaving open how effective it can be going forward.
Tillerson’s departure is not the only one.  A week ago Gary Cohen, Trump’s chief economic advisor, left in protest of the steel and aluminum tariffs.  He and Tillerson were free traders, Trump is not.  Signs are the Trump administration is ready to start a trade war by pulling back on international agreements in the interests of pursuing US economic nationalism. Look at how Trump just prevented Broadcom, a Singapore-based chip maker, from purchasing Qualcomm, as an indication how nationalistic trade policy will also dominate US Asia-Pacific foreign policy into the future on the new Secretary of State.  The free-traders, diplomats, and multilateralists have left the administration.  This suggests for Asia and the rest of the world a more confrontational US foreign policy.
Rumored now also that Trump’s national security advisor H.R. McMaster, another former military officer, is on the way out.  John Kelly, his chief of staff and also former military officer, is probably also on his way out.  Others may leave.  An administration once  full of generals suggested a presidency dominated by hard or military power except the generals did not agree with Trump’s whims.  They came from the foreign policy establishment that Trump is rejecting.   He now seems ready to pick those who  have no experience in foreign policy–people just like him.
Where the Trump administration seems headed is toward foreign policy people who know even less than him, having neither military nor diplomatic skills.    These people too will not last long, further contributing to the ineffectiveness of the Trump administration internationally.

Tuesday, March 13, 2018

The Limits of Free Markets, Both Economic and Intellectual

Today's blog originally appeared in Counterpunch on March 13, 2018.

Both in economics and speech, the market is a powerful metaphor.  Free economic markets are
efficient, and produce the greatest good for the greatest number of people by the fair interplay of sellers and buyers.  The marketplace of ideas is supposed to produce truth, and maximize free inquiry of ideas through the competition or rival ideas.  Both marketplaces are supposed to support contrasting forms of individual freedom.  Except the truth is that neither work in practice compared to theory, fixing their externalities and preventing one from corrupting the other  is challenge and task of contemporary western politics.

The market is a metaphor of modern western politics.  Belief in the efficiency of economic free markets dates at least to Adam Smith’s 1776 The Wealth of Nations.  For some economists, free markets maximize individual freedom producing both what is called Pareto efficiency (no one can be made better off without someone being made worse off) and Kaldor-Hicks efficiency (overall greatest net wealth for a society).  Government regulation interferes with economic markets, damaging both individual freedom and both forms of efficiency.  Market fundamentalism in the guise of contemporary Republican or neo-liberal politics, ascribes to this belief.

Yet there are limits to this economic market fundamentalism.  The same Adam Smith who wrote The Wealth of Nations also penned The Theory of Moral Sentiments and argued how economic markets are circumscribed by ethical values and virtues.  The Wealth of Nations in book five recognizes an important role for the government investing in infrastructure.  Later on, other economists have described unregulated markets as producing externalities such as pollution or monopolies.  Others see externalities to include the mal-distributions of wealth and income in the world or racial and gender discrimination.  Economic markets are also  plagued by problems such as free riders or collective goods.  These problems necessitate government action.  Even Milton Friedman recognized the need of the government to enforce the rules of the marketplace against force and fraud so that it would work properly.

The point is markets are not architectonic.  Markets are not inherently self-regulating or natural.  Karl Polany’s 1944 The Great Transformation made this point.  It took enormous state power to construct and maintain market capitalism. The logic of both capitalism and human nature is often against free markets, wanting to produce collusion, monopolies, or engage in rent-seeking behavior or political action to favor oneself.  Pure self-interest left on its own, as Nobel Prize economist Kenneth Arrow pointed out, cannot be aggregated to produce collective goods for a society.

The marketplace of ideas is also powerful.  John Milton writing in his 1644 Areopagitica argued against censorship and suppression of religious views in the belief that the competition among religious sects would reveal the truth.  John Stuart Mill’s 1859 On Liberty similarly believed that the free play of ideas would yield the truth if there was a “chance of fair play to all sides of the truth.”  And in American constitutional law, it was Supreme Court Justice Oliver Wendell Holmes, Jr. who in his 1919 Abrams v. United States dissent first introduced the market metaphor to the First Amendment when he contended that “the best test of truth is the power of thought to get itself accepted in the competition of the market.”  Since that decision, the hall mark of free speech jurisprudence is the belief that the marketplace of ideas will produce truth and inform the public.  Competition among rival ideas will filter truth from falsehood.

Yet if economic markets are flawed, so is the marketplace of ideas and they too may not be architectonic.  Beyond the fact that some are questioning whether truth even exists, what we learn from recent surveys is that faith in  free speech is waning.  Not a day does not go by that some group argues for restrictions on racist, sexist, or offensive speech or how the press should be regulated.  And a recent study by MIT professors points to something that many have suspected for some time–falsity or fake news  spreads more rapidly than truth on-line.  Because of the natural  tendency for people to be attracted to novelty, falsity is retweeted or posted more than truth.  The enduring power of myths such as vaccines cause autism is proof of this.  For a democracy to exist, its members must have the ability to express their views and search for truth.  Yet if the marketplace of ideas is not  working, democracy is in peril.

The problem then is that the marketplace of ideas too is producing externalities that must be addressed, but doing so without compromising the right and ability of individuals to think for themselves and access the information they need to do so.   How to regulate the marketplace of ideas to address externalities without censorship is a dilemma.   But this marketplace is also plagued or affected by the economic marketplace, allowing rich and powerful actors to use the resources they have acquired in there to adversely affect the marketplace of ideas.   The challenge is how both to preserve the marketplace of ideas from destroying itself while at the same time preventing the economic marketplace from destroying itself and corrupting the marketplace of ideas.

Friday, March 9, 2018

No Matter What Happens in November, the Democratic Party Agenda is Already Dead

No matter the electoral results this November, the Democratic Party agenda in Congress is already dead.  Dead because Democrats yet again will have to pay the price of Republican irresponsibility,
giving them and the nation no fiscal room to act.  Yet this irresponsibility is no accident, it is the playbook of the Reagan era, and Democrats have yet to figure out how to respond.
Republican Congressman John Anderson’s 1980 presidential debate performance against Ronald Reagan was devastatingly accurate when asked of  him “How is it possible [for Reagan] to raise defense spending, cut income taxes, and balance the budget, all at the same time?,” he said it was possible only with “smoke and mirrors.”   David Stockman, Reagan’s budget director, confessed famously in an Atlantic Monthly article and later in his book The Triumph of Politics, that supply-side economics was simply a facade for tax cuts for their rich supporters and that the fear of a large federal deficit would be used to leverage down the size of the welfare state.  They both told the truth about a Republican strategy that continues into the Trump era.
As a result of the Reagan era, the federal deficit exploded, the national debt expanded, and ever since  the real legacy of the Reagan era has been to leave a fiscal mess that has constrained the ability of the federal government to act, crippling efforts by Democrats to enact their own agenda who are hemmed in by low taxes, large deficits, and little fiscal room to manoeuver. History is now repeating itself, this type not just as a tragedy but a farce since we ought to know better.
Many seem astonished now that the Republican Party has  abandoned  fiscal austerity for deficit spending by enacting large tax cuts and spending proposals.  There should be no surprise here.  When Republicans were the party in power during both the Reagan and second Bush eras they spent heavily without regard for the bill to benefit their supporters.  They generated the largest deficits ever. Second, as David Stockman pointed out, running up deficits was a strategic decision.  Generate huge deficits and it will eventually place pressure on both discretionary spending and entitlements, serving as a ratchet to cut them.  Big deficits also will limit the ability of Democrats, when they eventually take control, to push their agenda.  They will be forced to deal with these deficits by either cutting spending or raising taxes. Pressed into this situation, Democrats either cannot move their policies, reward their supporters (to stay in power), or are required into raising taxes, thereby reinforcing their image as the tax and spend party.
This is what happened to Bill Clinton and Barack Obama.  Republican spending sprees forced Democrats deeper into their neo-liberalism.  They had to be the party of fiscal austerity, tax cuts, and  minimal government.  Clinton spent most of his time cleaning up the Reagan-Bush era, Obama did the same for the second Bush.  Republicans under Trump have and will ass trillions to the deficit and national debt, already dooming the agenda of Democrats whether they seize control in 2018, 2020, or later.  Additionally, the exploding budget deficit will strength Republican calls for cuts to social welfare programs.  Already Speaker Paul Ryan has said that the exploding deficit (since the passage of the tax cuts) are a result of social spending. 
Should Democrats fail to capture at least one house in Congress come November, Republican-induced fiscal irresponsibility will provide the cover for a new round of cuts.  But even if Democrats do manage to take over, their economic room to maneuver is just about gone.  They will not have a large enough majority to make major tax policy changes to shift spending priorities.  Trump will veto them.  And assume that Trump’s trade wars backfire and that repealing restrictions on bank regulations help bring an end to economic growth.  Democrats will then inherit a recession
that just about closes the door on anything they can do to move public policy.

Wednesday, March 7, 2018

Sex, Lies, and Trump Videotape–The Ethical and Legal Problems of the Trump-Daniels Contract

Donald Trump’s attorney Michael Cohen has major ethical and legal problems, potentially meriting
disbarment and prosecution for crimes.  In addition, in light of Ms. Daniels’ lawsuit challenging the enforceability of the agreement, was this contract even valid?
I have taught legal ethics in law school for nearly 15 years.  As I tell my students, attorneys are expected to conform to the law.  They also must follow ethical rules as lawyers, mandated by the states where they practice.  These rules generally follow the American Bar Association’s Model Rules of Professional Conduct (MRPC).  Failure to follow them invites disciplinary action, including in New York where Cohen is licensed.
In the circumstances surrounding his paying Stormy Daniels hush money out of his own pocket to silence her about her alleged affair with Donald Trump during the 2016 presidential election, Cohen may have broken several laws and ethical rules.  First, Cohen seems to be admitting that he did make this payment.  If this admission is being made without the express or implied authorization of Trump, Cohen has violated MRPC 1.6.  Specifically, if Cohen is revealing information protected by attorney-client confidentiality without permission this is the first ethical problem.
Second, in paying money to Stephanie Clifford (Stormy Daniels), he is violating MRPC Rule 1.8 (e) that bars an attorney from providing “financial assistance to a client in connect with  pending or contemplated litigation.”  While it is not clear if there would have been litigation surrounding the possibility of Ms. Daniels disclosing the affair, suits for defamation of character or a contract not to disclose the affair could have been possible and therefore paying her to settle would have been a potential violation of 1.8 (e). Moreover, if Cohen badged Daniels into this settlement, that is a violation of Rule 3.4, fairness to opposing party.
In addition, Rule 1.8 (d) prohibit an attorney prior to conclusion of representation of a client from negotiating an agreement to get media or literary rights to issues relating to the representation.  The basis for this rule is to prevent attorneys from compromising their zealous advocacy for a client and perhaps altering their legal strategy or advice in the hope that a different outcome would make for a more profitable story.  This is an issue of conflict of interest.  Cohen is reportedly shopping a book about Trump, potentially including the telling of the story of the latter’s relationship with Ms. Daniels.  Not only might the book include information protected by attorney-client information, but it is possible that the representation with Trump is not done and that he violated this rule.  Even if the representation is done, if Cohen paid off Ms. Daniels or did anything in representation of Trump with the idea that he might be able to personally profit, that is a conflict of interest that violates Rule 1.8.   
It is also possible he violated Rule 1.1–competence–in not providing appropriate advice or representation to Trump and also perhaps committed malpractice in acting in a way that under-minded a duty to his client.  In fact one can also argue that if the payment was made to Ms. Daniels without Trump’s knowledge or consent, Cohen violated Rule 1.2, acting beyond his scope of representation for his client, and Rule 1.4, failure to communicate with his client and keep him informed about the status of a matter.
Another problem for Cohen is that if he made an expenditure of $130,000 to Ms. Daniels with the purpose of silencing her so as to prevent her disclosure from affecting the 2016 election, this might violate federal law.  This is an argument that Common Cause is making.   Federal election law would require expenditures such as this to be reported.  If Cohen then tried to hide this payment by working with Trump or others, it might constitute aiding and abetting or conspiracy to obstruct justice, both of which are violations of federal law.  Breaking the law is also a violation of Rule 8.4, in that such acts are either prejudicial to the administration of justice or that speak to the honesty or trustworthiness of an attorney.
Aside from raising the questions about the ethical and legal behavior of Trump’s attorney,  was this contract even valid without Trump’s signature.  On the one hand yes–this is the argument  based on detrimental reliance.  Did all the parties act in a way that they assumed there was a contract?  Yes, all parties did it seems act that way and it really is not required to have the agreement signed.  Many oral agreements are enforceable and since this was not a contract for goods the statute of frauds does not apply and no written agreement is needed.
However, I am still questioning whether there was a contract from the start that is enforceable.    By that, if the contract was made where money was exchanged for the purposes of silencing Ms. Daniels, that very contract may be illegal and void.  How so?  The exchange of money to silence her was done so with the intent of affecting the 2016 election.  Moreover, that silencing  includes, as alleged in Ms. Daniels’ suit, preventing her from releasing some materials (videotape?) about the affair. If that is the case and it was not reported as a campaign expenditure, this is a contract for an illegal purpose.  Conversely, if Ms. Daniels  was  paid money to remain silent about her sexual relationship with Trump, this may be a form of bribery meant to influence individuals to vote in a specific way, or to vote at all.  The quid is silence about the sexual relationship, the money is the quo, and the purpose is to affect voters.  Trump and his attorney bribed Ms. Daniels to remain silent about a sexual relationship in other to affect voting.  It is awkward, but a possible bribery case can be made here.
Finally, remember agency law.  Except in rare cases, we attribute the actions of lawyers to their clients.  Trump may be estopped from arguing that he did not know that his lawyer was doing all this unless he can show there was neither explicit not implicit authority from him for his attorney to bribe Ms. Daniels.
Overall, Cohen appears to have committed a lot of ethical and legal mistakes and it will be interesting to see what disciplinary action he faces and which actions of his cn be attributed back to  Trump.

Saturday, February 24, 2018

No Right to Atomic Bombs or to Fight the Government: What the Second Amendment Really Means

Contrary to what many think, the courts have not ruled that the purpose of the Second
Amendment is to take up arms against the US Government or kill lots of people. It instead supports a narrow notion of personal self-defense.

The language of the Second Amendment is cryptic.  Among the questions surrounding interpretations of it are whether the Amendment protects an individual right to bear arms and what  type of restrictions, if any does it permit.  Unfortunately, the US Supreme Court’s legal history regarding the Second Amendment is thin, with less than a half-dozen opinions on it.  Prior to 2008 in three separate decisions, the Supreme Court largely rejected or ignored claims that the Second Amendment protected an individual right and that the government–at all levels–was powerless to regulate guns.

But in 2008 in Heller v. District of Columbia the Supreme Court ruled that the Second Amendment did protect an individual right to bear arms.  Drawing upon historical evidence of the constitutional framers and a close reading of the sentence structure of the amendment, the Court concluded that: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”  But in reaching that conclusion the Court made two important qualifications.

First, the Court said that the right to bear arms is grounded in the right of confrontation or self-defense.  We have a personal right to bear arms to protect our personal security.  The law that was challenged in Heller encroached upon that personal right of guns for that purpose.  At no point did the Court assert–as some claim–that we have a right to bear arms to take up defense or fight against the United States government.  Waging war against the United States, as the Constitution declares, is treason, or at least a serious crime.  The entire idea of a right of revolution against the government is located not in the Constitution but the Declaration of Independence.  This right to armed revolution  against the government is a concept found in British political theory and the struggle against a tyrannical king.  Thomas Jefferson and others invoked this language as then British  subjects against King George III in England, but the Declaration of Independence really has no constitutional or legal significance.   The Constitution provides for the ballot box and not bullets as a means to resolve political grievances.

Second, the Supreme Court in Heller was clear that the Second Amendment was not absolute.  It pointed out that “the right was not unlimited, just as the First Amendment's right of free speech was not.”  The First Amendment imposes, for example, time, manner, and place restrictions on speech, and certain types of expression, such as child pornography or extortion are forms of speech devoid of any constitutional protection.

Heller declared that they did “not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.”  While the Court refused to enumerate what types of  restrictions it would permit, it did say that among others, laws restricting the “possession  of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” would be permitted.  Subsequent to Heller, lower courts have upheld many other restrictions on guns.  In short, the Second Amendment is about personal self-defense, and that does not include the right to own automatic or semi-automatic weapons, or many of the other arms of choice used in mass killings.

The point is that the Second Amendment is no barrier to the types of public safety, common  sense restrictions on guns that large majorities of the population support.  Reasonable efforts to regulate gun violence are permitted.  The real problem then is not the Constitution, it is the lack of political will in Washington, D.C. and across the country to defy special interests and do their job.

Monday, February 19, 2018

Minnesota's Flawed Budget Process--The Case for Automatic Budget Resolutions

As the Minnesota Legislature reconvenes on February 20, it is important to remember at least one simple fact–the state budget process is flawed and the risk of future government shutdowns is more than probable.  That is why as a fail safe the state needs to adopt an automatic continuing resolution rule to keep the government funded in the event that the legislature and governor cannot reach agreement on funding.

There is almost no chance this year the state will have a government shutdown this year.  The budget is made in the odd-numbered years.  However if the governor and the legislature do not resolve funding for the latter, or if federal tax changes and the fiscal forecast show a deficit necessitating budget cuts, a crisis could precipitate a partial shutdown.  But in the last 20 years the state has experienced three partial shutdowns, more than any other state in the country.  Add to that overtime special sessions, constitutional battles over gubernatorial unallotments under Governor Pawlenty and line-item vetoes of legislative funding by Governor Dayton, and one can really conclude that the budget process is broken.  Yes increased partisanship and differing political priorities are a major cause, but in reality the root of the problem is an antiquated way to do the budget.

Starting back in 2001, I argued that the budget process in use was built for the horse and buggy days trying to operate in the 21st century. Government is so much more complex, the budget numbers so much larger, the functions more diverse, that it is perhaps impossible to reach consensus and make decisions between the beginning of January and ending on the first Monday following the third Saturday in May as specified by the State Constitution. These are deadlines from the nineteenth and twentieth centuries and reflect a different era for the state. There simply may not be enough time to do the budget by law in the 21st century.

            But think also how flawed the current budget process is right now.   We have elections in November. The state then receives a fiscal forecast at the end of November telling the governor what the economic assumptions and budget situation in the state will look like in the coming months.  The governor then finalizes a budget premised on these assumptions.  If there then is a new governor (as there will be in 2019) then that person finishes the budget of the old governor once taking office.

            Now the new legislature comes to work in early January and then it waits until late January or so for the governor to release the budget. Then they all wait until late February for the updated fiscal forecast. Thus, it is really not until late February or March that the work on the budget commences. And even then, there are separate hearings in the House and Senate, forcing conference committees to act. The budget also is really ten separate bills, with spending distinct from taxation, and no real work gets done until there are agreements on the different spending targets for each of the areas such as HHS, K-12, and so on.

            Sound confusing? It is. It is also inefficient. At least two months are wasted at the beginning of every budget cycle waiting for the governor’s budget, the fiscal forecast, and then agreement on budget targets. Now add more wrinkle–budgets are created right after state elections when often many new legislators or constitutional officers are elected. They are green, often learning on the job while creating a new budget. This is what happened in 2011 after the 2010 elections.  The same  was true in 2013 when the 2012 elections produced a legislature with at least 25% of the legislators being new.  It was also the case in 2014 when party control of the legislature shifted. These new legislators are barely in office, barely understand the state government when they are asked to review the budget.  This makes no sense. In a distant past when life and budgets were less complicated (and smaller), perhaps it was possible to do all this with a part-time citizen legislature. But those days have passed. A new budget process is needed, with new time lines and ways to move the work along.

            Is there a better way to do the budget?   Again, since 2001 I have argued that the current budget process is backwards and that a new mechanism is needed.  Many of these reforms are found in our neighbor state of Wisconsin.  What are these reforms?

            In Wisconsin there is a joint House (Assembly)  and Senate committee that does the budget.  It is one bipartisan committee and not separate committees in the two chambers as in Minnesota.  Moving to create one budget with one committee primarily but not exclusively responsible for it is a necessary correction and centralization to the highly decentralized process that currently occurs in Minnesota.  Additionally link the budget and tax bill together.  Spending and revenue need to be connected.

            But in addition, one of the best ideas from Wisconsin is that of an automatic continuing resolution.  By that, if the budget is not passed on time in Wisconsin then the existing budget continues in force until the budget is agreed to.  This reform alone would prevent a shutdown.  Recently Randy Jessup has introduced such a bill.   Revenue Commissioner Myron Frans does not support this idea, but appears open to other reforms to get the budget done on time.   I disagree with the idea that the resolution only funds the state at 90% level (it should simply continue funding at the current level) because such a mechanism could be used for political purposes to force budget cuts, but the basic idea is good.

            There are other possibilities for reform.  One would be to pass the Truth in Budget Act. It would do two things.  First, it would undo the current asymmetry or stupidity in the law that counts inflation for the purposes of revenue but not obligations in Minnesota.  This law dates back to the 2002 when Roger Moe and Tim Pawlenty, in running for governor while they were still in the legislature, creating the gimmick to avoid having to deal with the real budget problems during the election.  The Truth in Budget Act would also ban spending shifts (shifting spending obligations past July 1, to push the matter off in the next budget year) and “borrowing” from schools and other entities with the false claim of paying them back in the future.  These are truly gimmicks.

            But even other reforms could take place.  Why should the legislature do the budget in the odd years right after the election?  Why not move the budget year to the even years and give legislative members a year to learn about the state government before tacking it?  Other possibilities include changing the timing of the budget, or when the legislature is called into session.  Instead of the legislature coming into session in early January, then waiting for the governor’s budget and then the fiscal forecast, change the timing of one or all of these to create a process that makes more sense.

            The point here is that there are many ways to fix the budget process to avert future government shutdowns.  Up until now the backup to solving budget impasses has been to let the courts order temporary funding.  It is not so clear that the Minnesota Supreme Court will bail out the political process in the future.  The budget process needs to be fixed and a good starting point is with adopting an automatic continuing resolution process to make sure the state does not shut down in the future.

Tuesday, February 13, 2018

The Coming Republican State of Minnesota?

Minnesota Congressman Rick Nolan’s surprise decision not to seek re-election underscores how his state is at a political tipping point.  This most Democratic of states in 2018 could finally turn
Republican, following the path of Wisconsin and other Midwestern states.  What happens in Minnesota this year could also decide which party controls the US House and Senate, making the state ground zero in this year’s elections.
Minnesota is thought of as the liberal state of Hubert Humphrey, Eugene McCarthy, Walter Mondale, Paul Wellstone, and Al Franken.  It is the most reliable Democrat state when it comes to the presidency; the last time it voted Republican was for Nixon in1972.  Tim Pawlenty in 2006 was the last Republican to win a statewide election in Minnesota.
Yet there are many signs that the state is turning Republican.  Since 1999, the Minnesota House of Representatives has been controlled by Republicans fourteen out of twenty years.  Since 2010 party control of the State Senate has flipped three times.  Since 1999 a Democrat has controlled the governorship only eight years out of twenty.  When Democrat Mark Dayton won the governorship in 2010 he was the first of his party to win that office in Minnesota since 1986.
In 2016 Hillary Clinton beat Donald Trump by 45,000 votes–the closest presidential race in the state since 1984 favorite son Walter Mondale barely eked out a victory over Ronald Reagan. That year Minnesota was the only state in country to vote Democratic.  Her close victory should not have been a surprise–exit polls put Minnesota at 37% to 35% in terms of Democratic/Republican affiliation, similar to the 36% to 33% split nationally.
From 2008 through the 2012 and then into the 2016 presidential elections, the actual number of votes and the percentage of votes received by the Democratic candidate declined.  In 2008 Barack Obama received 1,573,454 votes compared to John McCain’s 1,275,409–a difference of 298,045.  In 2012 the gap between Barack Obama and Mitt Romney narrowed to 225,942.  Then in 2016 it was 44,765 between Hillary Clinton and Donald Trump – a steady narrowing of the gap between the Democratic and Republican candidate.   In 2008, of the 87 counties in Minnesota, Obama won 42 of them.  In 2012 Obama won 28, and in 2016 Clinton only won nine counties.  In comparison, in the 2014 gubernatorial election, the Democrat Mark Dayton won 34 counties.
As with nationally, the Democrat’s base appears to be eroding, contracting to simply urban areas.  The reasons are multifaceted. There is the Democratic appeal to educated urban liberals, often more affluent who look down on or disdain as stupid their rural and suburban counterparts, or those who are working class because they do not share their same interests or lifestyle preferences. There is also the failure of both parties to pay attention to the class and economic concerns of white-working class America.  They abandoned  class for identity politics.   Democrats seem also to have a one-size fits all campaign strategy that works well with urban populations but which is not tailored to the suburbs and rural areas.  Democrats have also embraced a “demographics with destiny” argument that often assumes that history in on their side and that eventually voters will return to their senses and vote for them.  Finally, Republicans  have well exploited the economic and cultural fears of rural, suburban, working class America, offering a narrative resonates with those who feel ignored.  All this is true nationally, and is being played out too in Minnesota.
Minnesota may be ground zero for national politics this year.  There is an open race for governor and two US senators up for election.  While Amy Klobuchar is favored to win, Tina Smith–who replaced Al Franken after he resigned–faces a tough election and is no shoo-in.  Nationally there are only about 25 swing House seats in the country, but four of them are in Minnesota.  Two of them–Minnesota’s First and Eighth–are currently held by Democrats Tim Waltz and Rick Nolan and neither are running for re-election.  These are open seats that have flipped party control over the years and are leaning Republican; both went for Trump in 2016.  There are two other House seats, the second and third, respectively held by Jason Lewis and Erik Paulsen, that are rated competitive by the Cook Report as competitive, but still leaning Republican.  The fate of the partisan control of Congress might rest with who wins Senate and House races in Minnesota.
Finally, at the start of the year the Minnesota State Senate were respectively 34-33 and 77-57 Republican.  A court fight over whether a Republican state senator must give up her seat when she became Lieutenant Governor to replace Tina Smith (who held that job) may decide in the next few weeks partisan control of it.  Short of a wave election Republicans will maintain state house control.  If Republicans can win the open gubernatorial seat this November, they would perfect their control of Minnesota much like what happened in Wisconsin when Scott Walker won. Such a prospect would then set up all the conditions for major policy change in Minnesota, along with a real possibility that in 2020 it would finally flip Republican in the presidential election.

Saturday, February 3, 2018

Hack Jobs and Rule of Law: What the Nunes' Memo Threatens

The Nunes-Republican memo on the Trump campaign Russian investigation is a political hack job.
    If its purpose was to expose flaws in the investigation it failed.  But if its aim was to provide cover for firing special prosecutor Mueller and sowing more partisan alternative facts, then it might have succeeded.  But the real danger with the memo is actually deeper–it is about the rule of law and the independence of the Justice Department to do its job, including investigating the president of the United States.

The Nunes-Republican Thesis
Much to-do was made in the anticipation and release of the Nunes memo. Written by the House GOP and authorized for release by Trump, the basic argument boils down to saying two things.  First, the original FISA (Foreign Intelligence Surveillance Act) Court warrant to follow Carter Page (a volunteer with the Trump campaign) was flawed because it was based on a dossier by Christopher Steele, a former British spy who confesses to have wanted Hillary Clinton to win, that this information was also used as opposition research by Clinton, and the court was not told of this bias.  Second, the FBI and Justice Department was biased against Trump.

The Memo’s Alternative Facts
There are many problems with both of these claims, both factually and legally.  Factually among the most significant, Carter Page was under inquiry about his Russian connections even before the Steele dossier.  Second, not all the material in the Steele dossier was flawed or biased and instead, some had been independently corroborated.  Third, as the Washington Post reports, the FISA Court did know of the Steele-Clinton connection.  Fourth, there was independent evidence beyond the Steele dossier used to support the warrant.

Legal Flaws in the Memo
Legally, there are also many flaws.  While in general one should be concerned about the integrity and respect for individual rights involving the  closed FISA court proceedings, this is the law of the land that Congress created to address national security concerns.  The basic process  here is the same used in all other proceedings so to criticize it in the Page-Trump case is to indict the entire process.  Second, assuming factually all the Nunes’ memo alleges is true,  none of that legally renders the warrant invalid.  Witness bias in and of itself is no reason to discount evidence or testimony.
For example, I do not like the person who robbed me but the court is not going to reject my statements when I testify against him in court.  Second, while tainted evidence may not be used in court to prove the guilt of a person, the courts do allow tainted evidence for warrant and witness impeachment purposes.  There are also many other warrant exceptions.  The point being is that even if the original testimony to secure the warrant was flawed, the law does not say that everything that flows from the original poisoned fruit is also tainted.  Lastly, even if there was some tainted evidence in the original warrant, FISA rules require warrant reviews every 90 days and such a review would have provided checks in investigation (not to mention the fact that new evidence obtained in the investigation would then have provided new support for the warrant).
In the end, the Nunes-GOP memo comes down to saying that everyone is biased against Trump and therefore that bias outweighs any real evidence that there was Trump campaign collusion with Russians n the 2016 elections.  How ironic.  For how many years have the law and order Republicans  complained that technicalities in warrants let criminals go free?  They have long invoked the old adage first stated by Justice Cardozo in an attack on Fourth Amendment Exclusionary rule: “The constable blunders and the criminal goes free,” but now seem to embrace its logic.

But Does it Matter?
If you head is spinning with names, facts, accusations, and what not, then the memo achieved its purpose in sowing doubt. The Nunes memo was meant to cast doubt on the investigation, making it look like a partisan job.  The Democratic Congressional memo will reinforce that image.  For the vast majority of the public, the GOP memo means nothing (especially releasing it on Super Bowl weekend after a stock market collapse) because no one is paying attention to this insider baseball game.  But  this memo is aimed at two audiences: First, it is a very small general public of swing voters who may decide the outcome of the 2018 elections.

The Real Issue–Rule of Law
Second, it is set up to provide cover with the national Fox news of the world so that they can help Trump discredit the FBI and Justice Department investigations. This is the real issue.
Dating back to Watergate when a special independent prosecutor brought down the Nixon administration, a rallying cry of conservatives have been for what they call a “unitary executive.”  Taking language from Alexander Hamilton’s Federalist Paper number 70 (“The ingredients which constitute energy in the Executive are, first, unity”), they argue that the presidency comprises the entire executive branch over which the president has complete control.   Beyond the obvious conflating the presidency with a corporate CEO, such a view ignores history such as the Pendleton Act and civil service reform as an effort to depoliticize the executive branch.  It ignores the New Deal constitutional revolution, the introduction of the Administrative Procedures Act, and the concepts of checks and balances as means to mitigate abuses of power.
The Nunes memo is an attack against all this. It challenges the independence of FBI and the Justice Department to do its job.  It politicizes these agencies much in the same way Trump did by asking key members in their leadership whether they voted for him.  This memo is really about the integrity of rule of law, of the independence of law enforcement to do its job.  This is the real issue and one hopes that the hack job of the memo is revealed for what it is.

Monday, January 29, 2018

In our post-television age, a new opening for campaign finance reform

This blog originally appeared on January 27,  2018 in The Hill.

The current laws on campaign finance and money and politics are dead. Dead not because of rulings by the Roberts Supreme Court which have overruled much of the current laws in place since the 1970s. Their death is a result of the United States moving into a post-television era where the assumptions that defined much of the law on money in politics are rapidly losing or have lost their validity. This suggests a rethinking what campaign finance reform should look like moving forward.

The constitutional framework structuring the role of money in politics was articulated in the Supreme Court’s Buckley v. Valeo, 424 U.S. 1 (1976) decision. In ruling upon the constitutional validity of congressional post-Watergate reforms, the Court declared that while money was not equivalent to speech, its use in politics nonetheless “implicate(s) fundamental First Amendment interests,” such that limits on contributions or expenditures were only permissible if the government could show that contributions either corrupted or lent the appearance of corruption.

While the Court was willing to say that contributions to candidates and other entities met this standard, it did not see how expenditures by candidates, political parties, or other groups did.

In reaching that conclusion, the Court drew upon a famous analogy — the gas tank. Drawing an equivocation between how much money a person or group can spend and how much political speech they have, the Court said in the famous footnote number 18 that:

“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.”

Money was analogized as political gasoline. This happened at a time when the Court noted the “electorate's increasing dependence on television, radio, and other mass media for news and information.” Money in 1976 in fact might have been correlated with political speech.

But when the Court made this argument, it was in the middle of the television-centric era of American politics, especially at the presidential level. Writers such as David Haven Blake in “Liking Ike: Eisenhower, Advertising, and the Rise of Celebrity Politics,” argued that Dwight Eisenhower’s presidency was the advent of the merger of television and presidential politics, with it perhaps not really starting until 1960 with the Kennedy-Nixon debates or even 1964 with Lyndon Johnson’s famous “Daisy” ad. Television, especially network level, was the place to go for politics, news, and political advertising. It was a limited forum in terms of time and space to run political ads and therefore money was essential to buying and allocating scarce time.

By the time Buckley was decided in 1976 the television-centric era of American politics was in full swing. But already it was being eclipsed by what media scholar Elana Levine labels a post-television or at least a post-network television era with the rise of cable. And then in the late 1990s and 2000s the rise of the Internet and the social media moved America even further beyond the television-centric era.

We know now that network television viewership is down, that Millennials are not watching it, and that candidates, parties, and political organizations are increasingly moving into Facebook, Twitter, and other on-line or cell phone modes of connecting with people.

Buckley thus came near the halfway or high water mark between the rise of the television-centric era of politics and its coming demise. These alternative forms of reaching voters do not suffer the same scarcity problems as network television did. The longer-term cost curves for communicating ideas to voters, or fundraising, is dropping, with candidates such as Bernie Sanders and even Donald Trump showing the changing dependence on money and traditional television. Over time, television will simply be less important to politics.

What does it mean then to be in a post-television era? The assumption that Buckley made in drawing an analogy between money, gasoline, and political speech is less viable now than it was in 1976. One could question whether such an analogy ever made sense back then but soon, at the presidential and perhaps at the state and congressional level, the television-centric world is ending. The central claim, then, that campaign donations implicates First Amendment interests may be less the true today, and rests on unstable grounds.

If the above is true, the core premises of Buckley that provided the framework for the linkage between the First Amendment and money in politics have eroded and the precedent might be overturned, as it is no longer empirically or conceptually valid.

That decoupling of money from the First Amendment does not mean the former is not still important in politics or that it does not influence campaigns and elections. Instead it suggests that if money is no longer connected to free speech in the way it was during the television-centric era, then perhaps it would be possible to regulate it in ways consistent with this new reality.

Sunday, January 21, 2018

“It could have been worse.” Assessing the Trump Presidency One Year Later

“It could have been worse.”  That may be the nicest thing to say about the first year of the
Trump presidency, but that’s much of a compliment.  A year into Trump, America is hardly better off now than it was a year ago, with the damage he has wrought domestically and internationally mostly encapsulated in three words–polarizing,  incompetent, and transformative.
Donald Trump may be the most polarizing president since Abraham Lincoln.  A new ABC public opinion polls place his overall approval at barely 36%–a record low for any president at this point in office– and approximately half think he is mentally unstable.  But dive deeper, this and other polls show that barely 5% of Democrats approve of his performance while 80%+ Republicans approve.  On a range of issues from the economy, health care, the Russian investigation, and even the government shutdown, polarization is the word of the day.  Trump both reflects and exacerbated the cultural and political divides in the United States that have been growing since the 1970s that have so far produced 12 partial government shutdowns, two presidential elections with a split between the Electoral College and popular vote winner, and divided control of the presidency and Congress that now makes straight-party line votes the norm and not the exception.
Nationally Trump’s America has a clear map.  One sees a country divided by race, age, gender, religion, and location.  Trump’s America is older, whiter, poorer, more Christian and religious, more likely to hold only a high school degree, and it hates immigrants.  It watches Fox national news, embraces alternative facts, still believes Obama was born in Kenya, and it hates Obamacare while being the prime beneficiary of it.  They also hate the federal government and taxes yet live in regions that disproportionally benefit from federal largesse.    These people voted for Trump but a year into his office he and the Republicans have done little to help them. While Wall Street is at record highs and unemployment at record lows, it is hard to say Trump is responsible for either alone or that the legislative and political agenda that he has pursued will do much for them or America in general.  And throw into that his divisive rhetoric about just about anybody and any country and polarizing is who Trump is.
Before Trump took office, I argued that those who support or loath him will realize much to their hopes or fears, that he would be a far weaker president than expected.  There are these things called the Constitution and the Bill of Rights that contain principles such as checks and balances and separation of powers that will domestically constrain Trump.  That has mostly been the case.  His travel bans and DACA actions are bogged down in court, he has been unable to move much legislation or persuade even members of his own party to act.  Trump criticized Obama for being the executive order president but has resorted to that tactic far more than his predecessor.   Trump came to Washington with no government experience and appointed the same, leaving a power and competency vacuum yet to be filled one year later.
But as the Supreme Court has declared, presidential power is different domestically versus internationally, and the Constitution does not constrain him the same one when operating outside of US borders.  This is where Trump has been freer to do more damage due to incompetence.  A year later relations with almost all nations except where there are other authoritarian strongmen (North Korea the exception) are worse.    A year later the US is no better off in Syria and the Middle East than before, the moving of the US embassy in Israel will have longer-term corrosive impact on peace and America’s standing, and relations with the closest allies are worse than before (and relations with enemies no better).  Pulling out of the Trans Pacific Partnership and the Paris Accords renders the US a weaker nation, and the failure to stand up for human rights and assume a more closed-borders  isolationist stance across the world renders democracy less safe and a world that less reflects the American century that past presidents created and nourished. 
The polarizing “us versus them” attitude  that has divided America internally and applied externally, along with the basic incompetence of Trump have helped produce the final word describing his presidency–transformative.  Scholars such as James MacGregor Burns describe as transformative individuals who redefine the presidency both to alter the power of the institution and change the direction of American politics.  Examples include Abraham Lincoln and Franklin Roosevelt.    Trump is transformative but in a different way.  He is not enlarging but diminishing  presidential power–it may be hard to call what Trump is occupying is what historian Arthur Schlesinger, Jr. labeled an imperial presidency. 
But more powerfully Trump is using the presidency to alter America is horrible ways.  It is  his overt appeals to race, fear, and prejudice that will do lasting damage.  It is his disregard for freedom of the press.  It is his disregard for basic protocols of diplomacy.  All this will have a lasting corrosive effect.  But finally, Trump has changed the informal presidency.  The swamp he planned to drain is deeper and murkier than before because of his and his family’s (and appointees’) business conflicts of interests.  His Twitter use and consistent lying has damaged truth, and his use offensive language and swear words had done horrible damage informally to both the office of the presidency, American society, and the world such that the office that he exits someday will look very different  from the one he entered.

Postscript on the shutdown: Minnesota and the United States government seem woven together in  polarization.  Both have had multiple partial government shutdowns over the last few years.  The shutdowns and polarizations represent intense ideological partisan divides where finding room to negotiate is hard.
This federal shutdown may last a while.  Both sides are still in the finger-pointing stage.  Both are dug in ideologically and their political bases may make it hard to negotiate less than look weak.  Members of Congress thus have their eyes on not only the 2018 elections that impact the shutdown, but also maintaining their political bases.  How do you compromise when you have made  it an all-or-nothing negotiation with the devil?

Saturday, January 13, 2018

You’re Stupid, I’m Offended!: How Not to Make Friends and Influence People

The state of political discourse in America is no better than watching a Jerry Springer show.  We have
known that for years. Rush Limbaugh dropped that bar more than three decades ago by  reducing political argument and persuasion to insulting others.  Since then the tone of much cable news and social media has degenerated into nothing more than name calling.  All that was bad enough, but now we have a president who manages with each statement to reduce the quality of political rhetoric even further.  Referring to Haiti and African counties as “sh-thole states” is the latest low.  With that statement, and the media actually using the word on air, the seven dirty words that you are not supposed to use and for which Pacifica Radio was fined when it aired George Carlin’s famous routine, was reduced to six.
The point is not about the word itself but about how the president confuses logic with profanity, reason with outrage, and argument with insult.  But guess what?  He is only the personification of what culturally so many others are doing–both politically right and left–in America.
I am a professor with a Ph.D. in political science.  But I am also a law professor with a J.D. and have a masters degree in philosophy.  My world is one of evidence and logic. It is a world where, as I originally learned from my sixth grade teacher Grace Dale, that name calling is not the way to win an argument.  She used to say you can make any argument you want but once you state your claim the beginning of your next sentence must start with the word “because.”  This next sentence  must provide the evidence–logical or empirical–to support your claim.  Simply saying “I feel” or “you are stupid” are not arguments.  Both are just examples of emoting, not thinking, and asserting or declaring either of them are not persuasive to getting others to changing their mind of supporting your argument.
In philosophy there is what is called logical fallacies–argumentative techniques that are not valid.  Among them are the concept of ad hominem or calling people names as a way to try to win an argument, and ad motum or the appeal to emotions to win an argument.  These arguments often are accompanied with red herrings or shifting the argument to something else that is irrelevant, false  moral equivalence or equating two events as being of the same degree, and either/or arguments or  forcing people into thinking the only choices are binary.  None of these from a logical point of view are logically valid ways to argue, yet they seem to be the basis of so much political argumentation today, starting with Donald Trump all the way down to simple Facebook postings.
Political discourse and debate seems one big logical fallacy.  Too much of political debate is concluded with someone simply saying “Your stupid or Trump’s supporters are stupid, or racist, or sexist.  Even if true, do you really think you will win an argument by calling someone else stupid or racist? Long ago Dale Carnegie’s How to Win Friends and Influence People pointed that out too, offering great advice from a tactical and not logical perspective on how to persuade people. Similarly, arguments also seem to be concluded with someone pulling out their Ace card by saying they are offended.  Point out in a tough argument that someone may be wrong and the retort is “I’m offended.”  Again, that does a lot of good in terms of resolving a dispute.  But it is not enough simply to call someone stupid or say you are offended, everything seems to be of the most extreme moral equivalence–thereby equivocating everyone to the level of being a Hitler or racist for  whatever they did or said.
Now take all of the above fallacies and combine them with the political and cultural bubbles we live in, and the difficultly of some of the political choices we have to make and the problem is compounded.  Surround ourselves only with those who share our views, reinforcing and egging on beliefs until they become extreme.  Every little slight, every effort to engage in tough talk or debate  becomes an us versus them, good versus evil, an epic manichean battle where there can be no political compromise or middle ground and where even the thought that the other side might have a good idea is wrong.  “You are either with us, or against us,” as Joseph Stalin used to say.
This is not another essay pleading for civility in politics.  Emotion and passion are okay, we are not robots.  Philosopher David Hume was perhaps right in arguing that “reason was a slave to the passions” and that emotion cannot be stripped from persuasion.  We should be passionate about our beliefs, but passion is not argument.    It is also okay to engage in difficult debate and argument;  we live in an adult world with adult problems and need to have thick skin at times.  But if the goal is to persuade and reach agreement and not simply insult or emote there are better ways to persuade, and simply saying “You’re stupid” or “I’m offended” is not going to do the trick.

Monday, January 8, 2018

Oprah Winfrey for President? Trump Sets the Bar Low for the Next President

Is Oprah Winfrey any less qualified to be president than Donald Trump?  The answer is no.  But that is the wrong question.  The correct one is she any more qualified to be president?  The answer is no.
One speech by one celebrity does not render one qualified and competent to be president of the United States.  For many Donald Trump sets a low bar for presidential qualifications–have a famous name and win and you are qualified.  But should we not expect some from our leaders than that.  The unfortunate story may be no.
Years ago I wrote about the emergence of politainers and politainment.  Politainment is the cultural merger of politics and entertainment, and politainers are individuals who blend and use their celebrity status for political and self-interested purposes.  It is their celebrity status that gives them the advantage in running for office because of their name recognition and ability to manipulate pop culture media   Franklin Roosevelt did it with radio, Eisenhower an Kennedy with television.  Nixon appeared on both Jack Paar and Laugh-In to help his career, Reagan was an actor, Bill Clinton appeared on Arsenio Hall, Sonny (of Cher Fame) parleyed his fame into Congress as did Fred Grandy (Gopher from Love Boat), as did Arnold Schwarznegger, Jesse Ventura, and many others.  Politainers are personas, not persons, their qualification for office often is simply famous for being famous.  People vote for them because of their identity, not necessarily because of their qualifications, stance on issues, or ability to govern or lead.
Trump is a politainer.  Like many others he is a caricature of himself.  Fame from his celebrity shows and self-promotion.  As with many politainers, he used his private persona to enhance his political career and is also using his political career to enhance himself personally.  The conflicts of interest are significant in terms of the allegations and reality of how he and his family are intermixing the Trump© business empire with the Trump© presidency.  Part of the failure of the Trump presidency is that he and his administrators are novices to government, often clueless to how Washington works, that a Constitution exists, and that the worlds of government and business are so different.  Trump’s presidency is a failure so far simply because he lacks the skills and competency to be president.
Far cry from the days when Adlai Stevenson ran  as the most qualified to being president.  Running for office is not a merit system, ever and especially now it appears.  Moreover, being smart does not always mean one will be a good public official, read David Halberstram’s Best and the Brightest about the Kennedy and Johnson presidencies for proof of that.
Say what you will about Secretary Hillary Clinton, by most measures she was qualified to be president of the US.  Excluding her stint at First Lady, she served eight years as US Senator and six as Secretary of State.  Few if any GUYS who ever ran for president can match those credentials.  Clinton ran on competency, but competency is not exciting or, it appears, anymore, a requisite to being a serious presidential candidate. Moreover, competency should be the bare minimum in running for office, at least at the presidential level.  Clinton’s failure (beyond the obvious sexism) was that she was a bad candidate who made many mistakes and who embraced a series of policies and proposals that wrote off much of America.   Trump’s victory was both a tribute to the power of politainment, the weakness of Clinton as a candidate, and a revulsion against competence. 
So Democrats are looking for a presidential candidate in 2020 and Oprah gives a good speech.  Does that make her qualified to be president?  No more or less that Donald, but that is not saying much.  For Democrats and so-called liberals exasperated with Trump because of his lack of  qualifications to be president, what are Ms. Winfrey’s?  What are her ideas about how to deal with North Korea?  Health care? Infrastructure?  If there should be any lesson learned by anyone after Trump is that the person who is president should have some knowledge of government, marginally competent as a government leader, have positions on issues, and demonstrate some track record in government service.  Ms. Winfrey displays little to none of that.  While Democrats and liberals may say she is different than Trump, objectively she is no more qualified to be president than he was.  We can and should expect more than that from those who lead our country.

Saturday, January 6, 2018

What I learned about the Trump Administration from reading Fire and Fury

Not much.  If one is expecting new insights into the Trump administration packed into an exciting book, Michael Wolff will disappoint.  I finished reading it today and my conclusion is that if you
have already been following the news for the last year, skip the book, you will not learn anything new.  In fact, you will be bored.
Even without reading Fire and Fury what I knew about Donald Trump and his administration was that it was largely a confederacy of dunces, beset by tribal and rival factions, and headed up by a narcissistic, hot-headed, egomaniac, paranoid, who does not read, think critically, or even have a command or clue of what government does or what it means to be president.  This is the story that Michael Wolff tells. We learn of how in many ways the Trump presidential campaign was a publicity and media stunt where no one seriously thought he was going to win and that instead it was viewed as a way to line the pocket books of the candidate when he returned to his businesses and self-promoting.  Thus, why worry about releasing taxes or conflicts of interest.
Trump himself is almost an afterthought or irrelevant as president in this book.  Trump is described as the person who cares little about policy,  retreats to his resorts to play golf or to his bedroom at night to watch television, eat McDonald’s cheeseburgers, and call his friends and complain about how no one likes him or how the world it out to get him.  The White House was divided by three factions–Bannon, Priebus, and Ivanka and Jared–all with their own agendas and an understanding on how to manipulate the president who seems never to remember what he promised or pledged to do.  Sincerity and commitment seem absent to the world of Donald Trump.  Between Trump’s own thin grasp of news and facts, his impulsiveness to act without thinking, and these tribal factions, Fire and Fury describes a presidency as largely divided, immobilized, and simply in capable of acting.
The book also describes a White House full of rookies, none of whom seem to have loyalty  to anyone including necessarily the president (who also seems not to have much loyalty to anyone  either).  No one seems to work together as a team, ready at a moments notice to act on grudge against someone else, whether perceived as a rival or not.  People latch on to the president simply hoping for a job or a career boast, fabricating their skills or resume to obtain favors, and when they do not suit the whims of the president, they are expendable.
The book also does not provide any new insights into the Trump world view, especially as it applies to the Comey firing and the Mueller investigation into the Russian connection.  We do not learn much more about foreign policy decision making, or health care policy, or anything else of substance.  At best the book gives us some gossipy lines which will be mocked in the New Yorker  or quoted cable talk shows.  But even without this book, we were already hearing all of these rumors.
Is the book a pack of lies and why is Trump so made about the book?  The book tells us nothing new so on one level Trump’s anger cannot be about the fact that new dirt has been revealed.  The content here is largely derivative.   The Trump anger is simply typical, his thin-skinned lashing out at any criticism.  But we already knew this was who Trump was.  In terms of whether this book is truthful, the Wolff acknowledges at the beginning of the book that he questioned some of the statements by those he interviewed.  Each interviewee had their own perspective and story to tell.  But second, since the book has come out no one quoted in the book has said their were misquoted  or denied what they said, or–with the exception of Trump–contended that the book mischaracterizes  Trump or his administration.  Silene often speaks volumes.
Save yourself some money and time–don’t buy or read Fire and Fury.  It is a vastly overrated book, marketed well, and written to appease the egos of the Washington insiders who seem to believe that telling this story reveals real dirt about Donald Trump and his minions.   In reality, the book simply tells the story of what we already know about Trump, and there are no surprises there.

Thursday, January 4, 2018

Jeff Sessions’ War on Drugs: The Sequel

Attorney General Jeff Sessions may be the only person in America who fails to recognize that the
country has fought a losing war on drugs and it is time to end it.  The war hath wrecked immense damage in terms of wasted money, fostering the creation of a prison-industrial process that incarcerated millions of people, often with a disparate racial impact.  That is why his decision to again prosecute individuals for federal drug charges in states that have legalized marijuana usage is  a horrible idea.
Twenty-five years ago Iargued in “Rethinking Drug Criminalization Policies,” in 25 Texas Tech Law Review 151 (1993) that the then three decade long war on drugs  had failed miserably and that it was time to shift away from a drug policy that criminalizes its use to one which treats it as a public health problem. That thesis was true then, and even more so now.
Richard Nixon launched the “war on drugs” with his presidency in 1968 and coined the phrase “war on drugs” in a 1971 speech.  Since Nixon the war on drugs has been a mainstay of Republican if not bipartisan politics.  The 1974 New York Rockefeller Drug laws penalized individuals with sentences of 15, 25 years, or even life in prison for possession of small amount of marijuana. Increased mandatory minimum sentences for crimes were ratcheted up for drugs and the move toward “three strikes and you are out laws” in the 1990s were adopted in part as a result of the drive to prosecute drug crimes.  All told in the last decade the federal government has annually spent $20-25 billion on drug enforcement with states kicking in an additional $10-15 billion if not more. What has this money purchased?
  There is little evidence that drug usage is down.  Nearly 40% of high school students have reported using illegal drugs, up from 30% a decade ago.  Some studies suggest 30 million or more Americans have used illegal drugs in any given year.  Several hundred thousand individuals per year are arrested for mere use or possession of marijuana. Hard core use is not down and in fact in some cases it has stabilized or increased over time.  Programs such as DARE show little sign of success, and the “Just say no” campaign that begin with Nancy Reagan also does not seem to have had much impact on drug usage.
  But if the war on drugs has done little to decrease demand for drugs, it has had powerful unintended consequences.  Interdiction and enforcement has created a significant and profitable market for illegal drugs both in the United States and across the world.  Estimates are the marijuana is one of the most profitable cash crops in California and the drug violence in Mexico, resulting in approximately 60,000 deaths in the last eight years, is  tied to American demand for drugs.  The price of cocaine is now at record lows, courts are jammed with drug dockets, and prison populations have swelled with individuals whose only crimes were minor drug possession.  States are now saddled with overcrowded bloated and aging prison populations, lives have been lost due to drug incarceration, and tax dollars that could have been spent on education, roads, or simply saved have been wasted on drug enforcement.  On top of which, the war on drugs had a racial impact, jailing more people of color, saddling them with felonies, and then giving states the ability to strip away their civil rights, including the right to vote. Call the war on drugs the new slavery or Jim Crow and one would not be far from the mark.
American politicians never seemed to lose points by ranting against drugs or demanding tougher enforcement.  Clearly they were addicted to our drug policies.
Drug criminalization has failed.  This is not to say that drug use is not a problem.  In some cases it is.  But put into perspective, use of alcohol, tobacco, or the consumption of fatty foods and sugary drinks exacerbating obesity and heart disease are far greater problems in this country than the use of illegal drugs. In many cases recreational use of drugs is harmless, in others, such as with medical marijuana, its uses may in fact be beneficial.  For others, personal and occasional use of drugs is a matter of privacy.  But yes, one can concede that use of illegal drugs–including abuse of prescription drugs which is perhaps the biggest problem–is a public health issue.  Lives can be lost to addiction and families broken up through abuse or neglect.  Many of us know of friends or family members who lives read like a drug version of Billy Wilder’s 1945 classic The Lost Weekend.  These individuals need medical help, not a prison term.  Drug policy needs to be decriminalized and shifted to a public health approach.  But many oppose decriminalization.  Why?
The basis for opposing the use of drugs generally rests on one of two grounds. First, there is the moral claim that drug use is inherently immoral or bad because it alters the mind, debases human nature, or reduces the capacity for autonomy. The second claim for opposing the use of drugs is social, arguing that the use of drugs and drug related activity produces certain social costs in terms of deaths, black marketing, and crime. Another variant of this claim is that drug use diminishes social productivity by sustaining bad work habits, or by generating other social costs including increased health care costs.
Ok, one might concede that use of illegal drugs is bad or that it constitutes a public health problem that needs to be addressed.  By having acknowledged this, the question is whether the current practice of drug criminalization and using police resources is the most effective policy to addressing this problem.  One argument against the decriminalization approach is the sending signals argument.  Specifically one major objection to the strategy proposed here is the argument that it would lead to an increase in drug usage and experimentation. Legalizing drugs would send a signal to individuals that drug usage is permissible and therefore more people would use them.
It is just not clear what impact making drugs legal or illegal has on their usage.  Conceivably making them illegal creates a “forbidden fruit” aura around them that encourages their usage that would be abated by legalizing them.  The same might be said for tobacco products and teenagers or perhaps for any other products or practices socially shunned. Regardless of the reasons why individuals choose to use drugs, there is little evidence that legalization has resulted in increased usage.  In the Netherlands, decriminalization of some drugs has not lead to an increase in usage or in users trading up from soft to harder drugs.  Five years after Portugal decriminalized many drugs in 2001, there too was little evidence that it led to increased drug use.  Portugal’s drug usage rates remain among the lowest in Europe after legalization, while rates of IV-drug user infection rates and other public health problems dropped.  In legalization of medical marijuana in California, the decriminalization might have changed attitudes towards the drug but there was no evidence of change in its use.  So far the same is true in Colorado with outright legalized marijuana. There simply is no real evidence that legalization sends a signal that drugs are permissible and therefore more people use them.
The point here again is that the war on drugs has failed.  It was a political narrative used by politicians for decades to promote their electoral interests at the expense of public good and taxpayers.  The criminal justice-prison industrial complex has gotten addicted to the war on drugs, making billions of dollars off of criminalization of drugs, especially marijuana. If we truly wish to win the war against drugs, whatever that means, jailing people is not the way to do it. It is time to end that narrative and establish a different approach that sees drug usage as a public health issue.  The $40 or so billion expended per year on drug enforcement could be better spent on other things.  This is a taxpayer issue and maybe in these difficult fiscal times the opportunity is there to rethink drug policy in Minnesota and America.
The consequences of Sessions’ War on Drugs: The Sequel, is an effort to reverse the trend  toward rethinking drug decriminalization.  His policy will punitively punish those using marijuana  for medical purposes, people often chronically if not terminally ill without any other hope.  It will also target attorneys, accountants, doctors, nurses, and other professionals who work with the medical marijuana field.  It may work cross-purposes to address the opioid crisis, hurting many of those in areas that voted for Trump.  And it is simply not clear there are many in the Republican base who support Sessions’ move.  It is a  retro policy without clear political support or benefit.

Wednesday, January 3, 2018

January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.