Friday, June 22, 2018

The Trump Presidency and Foreign Policy

Often the best predictor of a new US president’s foreign policy is to look at his predecessor.  The
strength and bipartisan nature of the American foreign policy establishment since World War II generally assures consistency and continuity across presidential administrations.
Yet every president leaves an imprint on foreign policy.  For Barack Obama it was the Asian pivot, George Bush the War on Terror, with Bill Clinton it was the Middle East Peace (Oslo) Accords, and for George H.W. Bush it was the first Gulf War.  But what is Trump’s foreign policy imprint or doctrine?  Pejoratively the media recounts an official who declares it to be “We’re America, bitch,” but is there something more coherent or deeper than this phrase that has been designed or emerged?  Despite skeptics who argue that the Trump doctrine is one of incoherence  and whim, a Trump doctrine has actually emerged, based on Trump’s own sense of how to do business as a dealer.   Trump’s world view shares  some characteristics of his predecessors yet also it leaves a unique imprint whose impact has already changed–for good or bad–American foreign policy and world politics.
American foreign policy since the end of World War II has rested on three pillars.  The first has been military and nuclear superiority.  Throughout the Cold War and after, the goal has always been to maintain a military strength sufficient to deter communism, defend the free world or democracy, fight two wars, deter nuclear war, or lead the fight against the war on terrorism.
The second pillar has been diplomacy.  Diplomacy is broader than simply setting up ambassadorships, it is negotiating treaties and alliances that are often multilateral.   It is creating  rules for international trade and dispute resolution.  It is constructing the framework for what Henry Luce called the emergence of the “American Century.”  Diplomacy is about using American soft power to create a world hospitable to US interests, including democratic and free market values.  Soft power also includes cultural values and ideas.  In many ways, American culture and values–perhaps the Hollywoodization of the world–is the single greatest export of the United States and it is a valuable tool that affects public opinion across the world.
The third pillar is economics.  The US maintained the largest economy in the world and its sheer size gave it muscle across the globe.  American capitalism, coupled with it diplomatic skills in forging free trade and other economic agreements, fashioned a world where America dominated. It may not have been the case the US had a positive trade balance with every nation, but collectively the economic world order formed after WW II favored the United States, making it the most prosperous nation on Earth.
Collectively these three pillars were an “America first” doctrine.  Yet  how American first was defined meant that the US would pursue its interests across these three pillars not just in the short but long term.  It was also a foreign policy that was statist; by that it was built on crafting alliances with specific states and not specific regimes or leaders.  US interests were best preserved by forging relationships with strategic countries, often without regard to who was leading them.  Finally, the US would seek to leverage overall world influence through bi- and multilateral agreements and alliances, and that it would cooperate with other states as part of a broader strategy to maintain US supremacy across the world.
These three pillars defined an America first foreign policy that held together the US foreign policy establishment across presidents since the 1940s.  Yes each president would imprint or change it to adapt to evolving world conditions such as the end of communism, the rise of terrorism, or the emergence of China and Asia as major economic players.  But collectively no post World War II president has rejected the basic goals or pillars that forge US foreign policy strategy.
The Trump presidency displays continuity and discontinuity. No debate that he buys into America first, this after all is what “Make America Great” is about.  But his sense of how to secure America’s interest is different from recent presidents in several ways–it is short term, personal, bilateral, and de-emphasizes diplomacy and soft power.
Trump agrees with the two pillars of military superiority and economic nationalism, but he applies especially the latter in ways  unique from recent presidents.  Specifically, he views the economics not collectively in terms of how the US does overall, but evaluates US relationships on a bilateral county-by-county basis.  Trump appears to want to win every negotiation and views any situation where a country has a positive balance of trade with the US as an unfair agreement.  He seems to think that the US needs to export more goods than import from every country.  Of course, such a approach fails to appreciate the economics of international trade and comparative advantage.  Second, Trump does not like multinational trade deals and prefers to do one-one-ones.  This suggests that he does not see linkages across issues or how international economics or politics is more than bilateral or how in many cases, a deal with one nation is connected to another. 
For example, his actions with the North Korea (DPRK) and halting the military exercises fail to appreciate the concerns of domestic security for South Korea, and on any deal with the DPRK is connected to regional issues that involve also China and Japan.   Economically, all relationships with a Trump foreign policy are zero-sum games.  By that, Trump expects the US to win with every state America deals.  No country–including allies–seems to be given any preference.   
Trump’s foreign policy does break with the third pillar-diplomacy and soft power.   Trump’s focus is simply not on using it or any form of soft power when it comes to furthering US interests.  With both friends and foes it is bullying approaching, person threats lodged against other leaders. Trump is also not interested in furthering human rights and democracy and he seems to like autocratic leaders.   His foreign policy is personal, as with Kim Jong-Un of North Korea, and not statist.  His preference for the art of the deal is based on traditional theories of business negotiations that stress the personal.  And like many business deals, they are discretely transactional and not necessarily part of building longer term relations.  Yet despite Trump not emphasizing soft power,  the US still commands a presence in the world and its actions as well as that of its presidents send cultural signals and messages across the world.
What does all this mean for US foreign policy?  Trump has already made an impact.  He has pulled the US out of the Paris Accords, the Iran Nuclear Agreement, the Trans Pacific Partnership, and U.N. Human Rights Council.  Look to see the US exit or weaken other multilateral agreements alliances over the  course of the rest of the Trump presidency.   Second, Trump’s rejection of soft power, diplomacy, and human rights parallels and enables the erosion of democratic norms across the world that groups such as Freedom House have recently documented.   Third, his economic bilateralism will continue to spark trade wars and economic sanctions among the US and its partners.  Fourth, his bilateralism, short- term, winner-take-all approach will challenge the basic world order that the United States has created for itself over the last 70 years.  Perhaps this was a world order already collapsing for many reasons, but Trump’s foreign policy does little to construct a larger world order over the long term that favors America’s longer term interests or builds alliances favorable to American interests.  Pulling out of so many multilateral agreements opens a void for other states such as China to fill.  America was powerful because it was a player, it was always there and not taking its ball and bat and going home.
None of the above seems likely to help sustain or create “America’s second century” or make it great again.  Yet this is what the Trump doctrine is doing.  Faced with major challenges in the world, Trump’s foreign policy is not so much that of a dominant and ascending power, but one pulling back, limiting its influence and range of tolls for one that is less grand in scope than those  characteristic of the last 70 years.  Maybe it is impossible for the US to maintain the hegemony it enjoyed since WW II, and if so, maybe the Trump doctrine recognizes that, or alternatively, it hastens the commencement of a world where that is true.

Note:  This is the first draft of possibly a longer piece I may do on the Trump presidency and foreign policy.  I am still working  out ideas at this time so pardon any errors or mistakes.

Saturday, June 16, 2018

Less than Fundamental: The Myth of Voting Rights

The Supreme Court’s recent Husted v. Philips Randolph Institute upholding Ohio’s voter purge law and Minnesota Voter Alliance v. Mansky striking down Minnesota’s political apparel ban are only latest cases declaring war on voting rights.  These cases are part of the second great disenfranchisement in American politics.  Like the first one after the end of Reconstruction, this one too aims to rig the election process, entrenching one set of interests in power.
The story of voting rights in America is one of exceptionalism.  In 1787 when the US Constitution was  drafted the right to vote was absent from the text.   The Constitution then (and still to this day because the Electoral College actually picks the president) did not a grant a right to vote for president, senators were chosen by the state legislatures, and while members of the House of Representatives could be selected by the people, who could vote was a matter of state law, with franchise generally limited to property-owning white males, at least 21 years old, who were citizens and members of a church or particular faith.
The traditional story of voting rights in America tells how franchise and democracy expanded over time.  First in the 1820s states started dropping property requirements to vote and began allowing qualified individuals the right to pick the electors who selected the president.    Then there would be the story of the adoption of Fifteen, Nineteenth, and twenty-sixth Amendments granting the right to vote to freed male slaves, women, and eighteen-year-olds.  There would also be the story of the Seventeenth Amendment allowing for direct popular vote of senators, the Twenty Fourth Amendment eliminating the poll tax, and the 1924 Indian Citizenship Act, and the 1965 Voting Rights expanding voting rights to Native-Americans and people of color.  These amendments and laws, along with Supreme Court cases such as US v. Classic and Harper v. Virginia Board of Elections, are part of an election law canon supposedly guaranteeing the right to vote as fundamental.
Except the right to vote in the United State is less than fundamental. The other side of the story of voting rights in America is how tenuous and contingent franchise is, and how much pressure there has also been to restrict it.  The United States is the only country in the world that still does not have in its Constitution an explicit clause  affirmatively granting a right to vote for all or some of its citizens.
The 15th, 19th, and 26th Amendments do not actually grant an affirmative right to vote–they merely prevent denial of franchise on account of race, gender, or age. One consequence of this less than fundamental right is that the US has one of the lowest rates of voting among democracies in the world.  Voting is stratified by race, class, and gender.  While most legal restrictions in place on franchise in 1787 have been eliminated, in reality the profile of those who vote today is almost identical to what it was back then.
With each push to expand franchise a counterpunch responded to contract it.  During the first  great enfranchisement after the Civil War, Congress enacted civil rights legislation and adopted constitutional amendments during Reconstruction in order to establish voting rights for freed male slaves.  It worked–electing many blacks to state and federal office–until Reconstruction ended in 1877 and the Jim Crow Era commenced.  Tools as explicit as lynchings were deployed to dissuade African-Americans from voting, but so too were felon disenfranchisement laws, poll taxes, literacy  tests, and grandfather laws.  These techniques successfully wipe out the right to vote for many for nearly another century.
But then the second great enfranchisement occurred during from the 1950s to 1970s.  Once  the 1965 Voting Rights Act and its subsequent amendments along with the  1993 Motor Voter Act began to make an impact, the backlash began. The first great disenfranchisement was a partisan affair pushed by Democrats.  This time it is Republicans.
It began with cries of voter fraud, even though there is no credible evidence that in-person  fraud at the polls is a serious problem.  The Supreme Court endorsed voter ID laws in its 2008 Crawford v. Marion County, and now 34 states have photo requirements.  These ID requirements are especially hard on the poor, people of color, new citizens, and the elderly; many of these groups lean Democrat.  In its 2013 Shelby County v. Holder the Court declared part of the Voting Rights Act unconstitutional, embolden states to take action such as closing polling places or cutting back on early voting.  And way back in 1974 the Court endorsed ex-felon disenfranchisement laws in Richardson v. Ramirez, stripping away the right to vote to millions of individuals, many of whom are poor and people of color.  Over time other limits on voting have been adopted by states, and the Court has come to accept them as routine and reasonable administrative regulations, failing to look at the impact the rules have on the voter.
Now we have  Husted v. Philips Randolph Institute and Minnesota Voter Alliance v. Mansky.  Supporters of these laws will say that these decisions either disenfranchise few, are necessary to prevent fraud, or protect free speech.  But they also put more burdens on voters to ensure they are registered to vote or require them to endure more pressure when they enter the ballot box to vote.   Voting has become an individual struggle–fighting both against the government and others to cast a ballot.  You are essentially on your own to figure out how to vote, and it appears the government will do little to help you.  No surprise that Justice Roberts in his Mansky majority opinion refers to the days of the nineteenth century when voting “was akin to entering an open auction place... where [c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.”
Such a scene was intimidating.  This is what voting is turning into again.  Casting a vote is becoming again  an act of courage, meant not for the faint-hearted.  Whatever the election law fiction  is, the right to vote now is less than fundamental.

Tuesday, June 12, 2018

Trump, Kim and the Art of the (Non) Deal

Note:  I will be in South Korea in July attending and speaking at two conferences.  One is on the 70th anniversary of the South Korean Constitution and it is sponsored by the National Assembly.  The other conference is sponsored by the South Korean Election Commission.

What are we to make of the Trump-Kim summit?  It was far less than meets the eye from  a global standpoint, although it was terrific theater for Trump and Kim.  However, the real winner was North Korea (Democratic Republic of North Korea or DPRK) while the United States got little, and US allies such as South Korea and Japan even less.

The summit was never destined to accomplish much.  Good summits require advanced planning and often there are a lot of agreements reached in advanced such that the actual summit is really a photo op that is the culmination of what had been already scripted.  Thus, summits are deals plus public.  Here one got all publicity and no deals–all show and no substance.

The summit had the potential to be a major break through and it still might to lead to something.  Having the two leaders engage in a dialogue may in itself be important, but s of now nothing.  No agreements on cultural exchanges, opening up of diplomatic offices, or anything else.  Compared to other major first meetings–Nixon and Mao in 1972–little was accomplished.

But this summit was never really about improving US-DPRK relations, it was about Kim and Trump.  For Kim, he wins domestically by showing his people he can stand equally with the president of United States.  Be a bad boy, produce a nuclear bomb, and you get what you want.  His position is strengthened domestically by this summit.  Internationally, Kim shows how a country can get what it wants if it goes nuclear and defies international law and rules.

Trump gets his ego stroked.  Domestically he gets to claim his threats drove Kim to the bargaining table.  He gets to argue for the 2018 elections that his way works and playing the bad boy and ignoring the G7, allies, or multilaterialism works.  Trump also gets lots of media coverage.

The meeting between the two leaders alone was historic and significant.  What the new relations between the two countries  mean is yet to be determined.  If the new relationship is bilateral then it is fragile at best. By that, if the security agreements only address US-DPRK needs and fail to address concerns of Japan, South Korea, China, and the Russian Federation, I am not sure what will result.  By that, the US seems to have agreed with DPRK to halt military games with South Korea.  This may make DPRK feel more secure but it is not clear how it addresses security needs for South Korea or even Japan, and it is not clear the US really got anything out of the deal.  Trump wanted a deal to say he got a deal, but if deals involve trading something of value to get something of value, the U got nothing.  Trump trades away US, South Korean and regional security needs to that he can say he got something.  But it is not clear how it addresses larger regional needs.  Moreover, this would not be the first time the DPRK has agreed to things only to cheat.  The art of this deal showed the limits or weaknesses in Trump’s negotiating skills, unless the art was something for him and not the US or the rest of the world.

Will the halt of US-South Korean joint military exercises address DPRK’s security needs?  The claim that North Korea felt insecure in part was always false, used as a prompt for its leaders to justify their regime.  During the Cold War there was no real chance the US was going to attack it, and even after it the US was never going to attack for fear of engaging China and Russia.  In addition, the DPRK came to the table both because it had nuclear capabilities and felt it had a position of strength from which to bargain, and because of economic needs.  In light of the US cancelling the nuclear agreement with Iran, it is difficult to see what kind of security assurances DPRK would want in exchange for giving up it nuclear capabilities.  In turn, if the US were to agree to remove all troops from South Korea it leaves that country with real security concerns.

Overall, the non-deal struck between Kim and Trump does less than the two leaders or the media think.

Wednesday, June 6, 2018

The Minnesota DFL Meltdown: Why it matters, why it is overdue, why it is mostly good

The meltdown of the Minnesota DFL was entirely predictable.  It is  also overdue and mostly good.  The roots of  this implosion  can be located in its failure till now to address significant changes in Minnesota, ranging from structural forces in the state to demographic ones.  But simply the cause is that the DFL failed to gradually reform, forcing an abrupt crisis that is happening now, at a most critical if inopportune time.
The DFL implosion parallels one found with the national Democratic party.  Nationally the Democrats are facing their failures to rebuild the lost New Deal coalition that linked labor unions, working class, and people of color.  Unions are all best decimated and will meet their final fate in a few weeks when the Supreme Court kills them off in Janus v. AFSCME, in part because when given the chance, Obama and the Democrats took them for granted and did nothing to change the law to help them modernize.  Democrats long ago abandoned working class when they became a corporate party chasing Wall Street and rich donors while ignoring the growing gap between the rich and poor in America. Now a new generation expresses disdain for these Reagan and now Trump Democrats, seeing them as ignorant, racists who are not worth courting.  And while yes Democrats still appeal to people of color for votes, how much they really deliver for them versus take their vote for granted is a matter of serious debate.
The crisis of the national Democratic party is one lacking a compelling narrative, it is one  of having a one-size-fits-all campaign strategy well suited to run in urban settings but largely ineffective in rural and often suburban areas.  It is a party facing an existential crisis as the aging Baby Boomers and soon Gen Xers  exit politics and it is unable to talk an agenda relevant  to Millennials and soon Gen Z.  It is a party whose divide and problems surfaced in the 2016 clash between Clinton and Sanders, where many Democrats stayed home because they could not stand to vote for another neo-liberal.  It is a party whose problems are summed up by saying that their rationale or narrative in 2016 was that “We are not Trump,” and who may, if they are lucky, this year, squeak out a victory in 2018 on running against something and not for something.  This is the problem of the national Democrats.  Trump is only the latest external threat to the Democrats, both externally and internally.
The Minnesota DFL faces similar challenges.  It is a party still living in the past, assuming  that the political landscape of the state is the same as it was 20, 30, or 40 years ago when the DFL  was the majority party.  The statistics fail to show that.  It is a Blue state gone Purple and maybe headed Red.  It is a state where the party still pays homage to fallen and past party leaders and lives in their shadow.  Yes Humphrey, Wellstone, McCarthy, and Mondale were great figures, but they represent a different political area.  The Minnesota DFL is an insular party where its one-size-fits-all campaign strategy has reduced its political base to a few  urban cores and no more than maybe 10 or so counties.  It is a party occupied by an ideology of Baby Boomers and some Gen Xers, and it is a party with a leadership looking backwards and not to the future.  It is a party facing an existential crisis.
Political scientist Walter Dean Burnham wrote in his  Critical Elections and the Mainsprings of American Politics that every 30 or 40 years American politics and parties are characterized by a critical realignment.  Driven by economic or political crises, American history  demonstrates the need for parties and political to change, forcing changes in party labels, coalitions, and alignments.  For too long too Democrats nationally and the DFL in Minnesota have needed to  critically realign.  Changes in the economy and political changes, driven by racial and generational  demographics, necessitate the DFL to change.  This is what is happening now.
The DFL change began five years ago in Minneapolis with Betsy Hodges.  It was a DFL without the F and L.  Hodges had an opportunity to ride the wave of change but she was simply too inept to manage it.  Jacob Frey and Melvin Carter are a second wave of the change, how they respond is too soon to tell.  Now what has happened over the last few days is another sign of a party torn in lots of directions.  Murphy, Walz, and Swanson at the gubernatorial level represent three wings of the party, three ideologies, and three strategies on how to campaign in the state and forge winning coalitions.  The divide played out at the DFL convention with the fight over the attorney general nomination and subsequent filings for the office, and it plays out in replacing Keith Ellison. 
Much of this is destructive.  Many of the candidates running appear to be in it for themselves and not for the party of state.  Many seem to lack the experience or qualifications for the job, and many in choosing to run seem to have conceded that the State House of Representatives is a lost cause and are abandoning it for higher office.  All of this is unfortunate, coming at a time when control for so  many institutions and levers of powers in Minnesota are at stake. 
But much of this behavior is also understandable.  It comes at a time when the party has sat on reform and change for too many years and where new leaders are demanding that the party reflect  their generation’s interests and needs.  Short term it is not clear how well the DFL navigates  this meltdown, longer term it is too soon to tell the results.   But this meltdown matters, it is overdue, and maybe mostly good.

Monday, June 4, 2018

The DFL Gamble: Competing Gubernatorial Campaign Strategies

Should the DFL run to the left and mobilize young and urban voters mostly in the Twin Cities Metro
area to win the governorship, or go with a moderate candidate with a regionally balanced ticket in hope of capturing traditional Metro voters as well as picking up support in greater Minnesota, such as the Iron Range?  This appears to be the strategy dividing the leading contenders for the DFL gubernatorial nomination going into the August 14, primary  and beyond into the general election.
There will be an August 14, DFL gubernatorial primary featuring St. Paul Representative Erin Murphy and her lieutenant-governor Erin Maye Quade, an Apple Valley Representative, versus First Congressional District Tim Walz from Winona, and his running mate,  Peggy Flanagan, state representative, from Plymouth.  The two campaigns, while offering nuanced and sometimes real differences on public policy, offer more profound contrasts in terms of campaign strategies and how to respond to changing Minnesota politics in the age of Donald Trump.
There are at least three factors critically defining contemporary Minnesota politics.  The first is that the state has shifted from being a solidly DFL one to that which mirrors the partisan divide found nationally and in many other states. Divided government, shifting of partisan control of the legislature, and geographic sorting and split party control all are traits in Minnesota politics now.  One can also point to a narrowing of partisan identification where as of 2016 the DFL only enjoyed a 37%-35% advantage over the Republicans, down from more than ten points a generation ago.
A second fact is that in 2016 Donald Trump came within 45,000 votes of defeating Hillary Clinton in Minnesota. The question is whether his election was a fluke–sexism toward Clinton, her campaign strategy, or something unique about Donald Trump–or whether the election was a continuation of a trend line of a state tending Republican.  Consider 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, including Hennepin, Ramsey, St. Louis, and Olmsted.  Republicans had gained 33 counties over two elections.  In comparison, in the 2014 gubernatorial election, the Democrat Mark Dayton won 34 counties.  In Minnesota, as nationally, Democrats appear to be the party or urban areas and are losing rurally.
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 presidential candidate in Minnesota 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.  But this narrowing of the gap was not necessarily a sign of Democratic voters switching to vote for Trump, it was DFLers staying home.  From 2008 to 2016 the actual number of votes being cast for the Democratic presidential candidate dropped by 205,638, while the number of Republican voters increased by 47,542.  Conceivably part of this shift was a result of changing voter preferences, and given that CNN exit polls suggested a tightening in the percentage of Minnesota voters who consider themselves Democrats versus Republicans.  Yet when looking at voter turnout in 2016 compared to 2012, it was up in many Republican while down in Democratic areas such as Hennepin County.
A third fact is that there is overall a generational and demographic shift occurring in Minnesota politics, with for the Democrats the base of their party turning increasingly to Millennial liberal voters who reside in the Twin Cities urban core.   Once part of the DFL coalition, the Iron Range increasingly is more mercurial, perhaps less reliable to vote Democrat than in the past.
Given the above, the question is how should the DFL respond? Early on post-2017 the received wisdom was that DFL needed to run a more moderate candidate who could connect with  rural Minnesota while at the same time still mobilize Metro voters.  After all, this is what Mark Dayton successfully did, as well as Al Franken and Amy Klobuchar.  The assumption here is that  a Democrat cannot win statewide office simply on the basis of the Metro vote–it also needed to build greater Minnesota coalitions.  Enter Tim Walz and Peggy Flanagan.  Walz was seen as a centrist DFLer who successfully won in a swing congressional district as being a person who could win enough rural votes–maybe even pick up some of the Trump supporters–and win the governor’s race.  He along with Peggy Flanagan, a Native-American and a liberal state representative from a swing suburb who was supposed to appeal to the metro Millennials liberals, was seen as the ideal ticket.  It featured traditional regional or geographic balance, a moderate-liberal balance, and perhaps  a stance on issues, such as guns, that would be electable.  Early on, de facto the DFL leaders seemed to agree and the Walz-Flanagan soared in terms of fund raising and early caucus support.
But along the way several things happened.  The Me-too movement and Al Franken’s resignation as well as high profile sexual harassment allegations involving Donald Trump, Harvey Weinstein, and members of the Minnesota Legislature  have activated a record number of women to run for office, portending a female  surge in 2018.   Then there were the Parkland school shootings, potentially radicalizing Millennials and Gen Z into political activism and making gun control a defining issue of orthodoxy for a new  political cohort along with Single Payer (health insurance).  Given these events, and the large population base in the Twin Cities, could someone run for governor by moving to the left, mostly foregoing rural votes, and instead make them up by heavily  mobilizing women and young voters in urban areas, especially in the Metro area?  This is the strategy  it appears in the DFL nominating Erin Murphy for governor and her picking Erin Maye Quade as her lieutenant governor.
Walz-Flanagan versus Murphy Maye Quade offer voters a contrast on policy ideas, but they also offer DFL primary and general election voters a contrast in campaign strategies.  The two offer differing views on how to respond to the changing political landscape of the state and what is  the appropriate strategy for Minnesota in the age of Donald Trump.  This is the DFL gamble, and  selecting the wrong one will have significant implications for both the party and the state.

Thursday, May 24, 2018

Parkland and the political coming of Generation Z

This blog originally appeared in The Hill.

Does Generation Z, Americans born from the mid-1990s to the early 2000s, look at politics
differently from previous generations, like Baby Boomers or even Millennials, such that they will change America and remake the world in its image? Right now it is too soon to tell but their reaction to the recent school shootings, in particular at the Marjory Stoneman Douglas High School in Parkland, Fla., might portend a coming of political age or consciousness moment that could change America over the next 20 years.

Political scientists often overlook generations as an important variable in politics shaping attitudes and behavior. More often the focus is on race, gender, and socioeconomic status. When age is considered the claim is often made that as people get older they become more conservative. Yet ignoring generation influences misses a critical factor in politics.

It was sociologist Karl Mannheim in 1928 who first talked about generations. Since then others have looked at generations as a social variable. Mannheim argued that a cohort of people born around the same time often develops a consciousness or awareness about themselves that define their political outlook for the rest of their life. A generational consciousness is triggered by some major event in adolescence that defines a set of political values that shape the views both initially in youth, and approximately 20 years later when that group matures and assumes leadership positions when they can act on their beliefs.

Some evidence suggests that political views or values once defined as adolescents are permanent and rarely change even as we age. Yes, factors such as race, gender, and socioeconomic status may mediate or affect attitudes, but in general a generational consciousness has two stages: the initial formation and then eventually its re-emergence when a generation takes power.

The Baby Boomers, born between 1946 and 1964, were shaped by the JFK, RFK, and Martin Luther King, Jr. assassinations as well as the Vietnam War and the civil rights movement. That generation is split in terms of Democratic and Republican party support and is beginning to exit the political arena along with the Silent Generation (1924-1945), which forms a major base of the Republican party. The exit of these two generations creates an existential crisis for the two major parties, especially when one considers that the Millennials (1982-1994) hold views at odds with the two major parties on a range of issues. Contrary to the mantra of some, demographics are not destiny, generational attitudes are.

Yet while many have focused on the rise of Millennials as they begin to take leadership positions (Millennials are now the largest voting bloc, and the oldest are now 36 and eligible to run for president of the United States), few have thought about Generation Z, those born between 1995 and 2010. The oldest Gen Zs are 23. How do they difference from Millennials?

Marketing and business books suggest major differences between Millennials and Gen Z. The latter are more tech savvy and grew up in a world of 9-11 and the Great Recession of 2008-9, but so far political scientists have not examined who Gen Z are and whether they politically differ from Millennials. The reason for this is simple: Right now the oldest Gen Z is 23 — they are only now coming of voting age. What do we know about them?

There is not a lot of data. Two studies examining their political attitudes are the General Social Science Survey (GSS) done by the National Opinion Research Center at the University of Chicago in 2016, and the American National Election Study (ANES) by the University of Michigan, also in 2016. These studies are perhaps dated, but they offer some important information about whom then Gen Z was and how they contrast with previous generations.

Generally, both the Millennials and Gen Z are far more liberal on a range of issues including immigration and economic equality compared to the Silents and Boomers. But there are subtle contrasts between Millennials and Gen Zs. Start with the issue of ideology.

When asked in ANES on seven-point scale to rate themselves extremely liberal/liberal versus extremely conservative/conservative, 19.6 percent versus 14 percent of Millennials rate themselves that way respectively compared to 15 percent versus 12.4 percent for Gen Z. In the GSS, employing the same seven point scale, 19.6 percent of Millennials say extremely liberal/liberal versus 13 percent extremely conservative/conservative, while with Gen Z respectively lists 21.9 percent versus 14.4 percent.  Yet in the ANES study if simply asked if liberal versus conservative, 22.3 percent of Millennials say liberal and 27.1 percent say conservative, while it is 24.7 percent and 30 percent respectively for Gen Z. Depending on how the question is asked, one gets either Millennials or Gen Z coming out more liberal or conservative, but the differences in percentages are so slight as not to be statistically significant.

Turning to issues, in the GSS 60.3 percent of Millennials think it is the government’s responsibility to promote equality while 64.9 percent of Gen Z say the same. In ANES, when asked what should immigration levels be, 22.1 percent of Millennials say it should be increased a lot or a little compared to 28.4 percent of Gen Z. Conversely, 35.2 percent of Millennials say immigration levels should be decreased a little or a lot compared to 28.9 percent of Gen Z. Gen Z comes out more liberal on two of the more salient issues in American politics.

Finally, look at guns, an issue supposedly of importance to Gen Z. When asked in the GSS whether they favor gun permits, 73 percent of Millennials say yes and 73.8 percent of Gen Z also say yes. When asked in the ANES how important the gun access issue is, 59.2 percent of Millennials say it is extremely or very important compared to 56.8 percent for Gen Z. Guns back in 2016 might have been a more important issue to Millennials than Gen Z because of their history with school shootings, and this was of course before the Parkland shooting.

On just these issues it is difficult to discern significant differences in political ideology between Millennials and Gen Z. But recall the 2016 GSS and ANES are two years old, back when the oldest Gen Z was 21. This is significant for two reasons. If Mannheim is correct, generational attitudes are formed in adolescence by a major triggering event. Back in 2016 many members of Gen Z may have still not yet formed or developed a set of political attitudes. But it is entirely possible that this is changing as they are getting older, and the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, and the demonstrations coming afterwards may have been the triggering event for Gen Z.

If Parkland was in fact a focusing event for Gen Z the 2018 may give us some evidence for that. But more likely if Mannheim is correct, one needs to look at the longer term impact in the next 20 years to see if and how Parkland affected Gen Z and what it means not just for guns but other issues too.

Tuesday, May 22, 2018

Why Are We Shocked the 2018 Minnesota Legislative Session Ended in Disaster?

Why anyone should be shocked that the 2018 Minnesota Legislative session ended as one of the least productive in the state’s history?  It would have been more shocking if the governor and the
legislature had been able to agree on anything.
The roots of the problems that explain the 2018 failure are both long and short term, as well as structural and unique.  Recall first that recent Minnesota history foreshadowed  what happened this year.  This year was yet another example of what can be called the “new normal.”  The new normal refers to a process dating back 20 years where special sessions, government shutdowns, and failed legislative sessions are the rule and not the exception.  The new normal in Minnesota reflects a changing political climate in the state that started about 20 years ago.  This is no longer a solidly DFL state.  As the shifting partisan control of the governor’s office and legislature have shown over the last 20 years, Minnesota is a politically competitive and divided state.  Clinton’s relatively narrow presidential victory over Trump in the state in 2016 demonstrated that. 
Look at a map of Minnesota. It reveals from the presidency down to legislative and local races clear patterns of DFL and GOP control.  More importantly, the two major parties are polarized along a range of issues ranging from health care, mass transportation, taxes, guns, abortion, and preschool funding.  The two parties are relatively equally divided in strength and along their values, making  compromise difficult.
Secondly there is a collective action problem.  There is a collective interest in compromising and reaching political agreement in a timely fashion, but there is little individual or partisan incentive to compromise. Among the 201 seats in the Minnesota legislature, no more than about 15-20 in the House and perhaps a maximum of 10 are from swing districts.  The remainder are strongly Democratic or Republican, representing districts where legislators are elected to stand firm onto their partisan views.  It is only those legislators who come from the s wing districts–those with a real chance to flip from one party to another–is there an incentive to compromise.  Strong partisanship in one of these districts is a political liability.   A paucity of swing seats means less pressure to compromise, and throw in strong party government in the state and even in those swing seats there is powerful pressure to vote straight party line.  Third, reinforcing this partisan divide is a money and politics issue.  By that, entrenched special interests spend heavily via lobbying, independent expenditures, and contributions to candidates, parties, and legislative caucuses, solidifying partisan preferences and making compromise nearly impossible.
The above three forces are structural and long term.  But there are also personality-driven, unique, short term forces that made it no surprise nothing really got done.  First, Governor Dayton  was a lame-duck presiding over a Republican legislature.  One should never have expected them to cooperate given what had transpired for the previous seven years.  But add to that a GOP angry that Dayton last year line-item vetoed their funding in an effort to get them to make some policy changes.  The Minnesota Supreme Court gave the governor a Pyrrhic victory that Dayton threw away the start of this session when he restored funding to the legislature. 
Dayton got nothing from his veto.  He should have demanded policy changes first before he restored funding.  In effect, that court victory that looked so good to Dayton did him no good.  Instead, it angered the GOP who effectively decided to ignore the governor in his last session.  He was not going to get anything he wanted and instead the Republicans were going to pass what they wanted and play to their base.  They forced the governor into vetoes, with the aim being that they will run against a do-nothing DFL this fall.  The GOP simply decided that it will show its base what it can pass if they elect a Republican governor, and it did what it wanted to do in 2018.  Thus, this session started with the governor’s veto and the 2018 elections hanging over it, guaranteeing little would be accomplished.
Finally, there is a leadership issue here.  While parties or party polarization may be strong, leadership is weak in the sense of being able to prevent individual members of the legislature from offering bills to appease interest groups or constituents.  Moreover, safe-seat legislators are less dependent on party leadership and can pursue or push special legislation, often without fear that leadership will punish them for it.  This happened in 2017 and it happened again this year. Additionally, it just does seem any of the principal legislative leaders or the governor have the leadership skills to move beyond partisanship.
Overall, we should no longer be shocked that gridlock has become a defining characteristic of Minnesota politics.  The state has become a microcosm of so many of the problems found at the national level, suggesting diminished prospects for Capitol cooperation for the foreseeable future.

Sunday, May 13, 2018

Want to Really Help the Poor in St. Paul? Fix the Infrastructure

What might be the better and perhaps more progressive and proven policy to benefit the lives of present or future generations of those in St. Paul?  One answer is opening bank accounts for children at birth. But the smarter answer would be a long-term infrastructure project to fix all the roads, bridges,  sewer lines, and other public assets in the city so that a future generation is not burdened with these costs that they will have to bear if we continue to do no more than the pittance as is presently the case.
The Melvin Carter administration in St. Paul is right to be concerned with addressing the needs of  low and moderate income individuals in the city.  One initiative already under consideration and touted by those who consider themselves as progressive  is raising the minimum wage to $15 per hour.  Elsewhere I have argued that this idea may have limited  impact in that it ignores a more fundamental problem of how a lack of affordable child care serves as an impediment to employment and providing it may be a better anti-poverty  program that rewards work and supports women. 
A second idea also touted by the progressives is opening up bank accounts for all children born in St. Paul.  The idea is premised upon the work of scholars such as Michael Sherradan and David Kirp who argued that child savings accounts (CSAs) would be a way to address the lack of income and wealth characteristic among the poor.  CSAs would include seed money from government to open an account at birth, with in many cases it matching deposits made by parents, or providing tax incentives to build savings.  Overall, the goal of its supporters  is to build financial security and capabilities, and perhaps affect educational outcomes for children and families.
Nationally, according to  the Urban Institute, the United Kingdom briefly flirted with CSAs until abandoned. Canada and Singapore have also experimented with them, and so have several cities in United States.  CSAs have not been around long enough to test whether they have been successful in meeting their goals.  Should St. Paul pursue CSAs, it needs to consider how to pay for the initial seeding of the accounts and then subsequent deposits into them.  Additionally, one needs to be cautious about claims that they will improve educational outcomes.  In general evidence shows educational performance increases with family household income, but simply giving people a bank account at birth does not  automatically translate into better grades or enhanced learning, at least in the short term.  Another problem with CSAs if done at the city level is that recipients of them might not stay in the city as children or adults, thereby depleting the impact they would have in St. Paul. Public investments by St. Paul should first serve the benefit of its present residents and the concept of inter-generational justice suggests the same.
While educational programs, especially early childhood and K-12 are among the best ant-poverty policies,
consider then an alternative–a commitment by the City to plan, bond, and budget for replacing its aging infrastructure over the next few years.  Nationally, the American Society of Civil Engineers rates the US a D+ in terms of its grade for infrastructure.  Minnesota does not earn much better of a grade.  Those of us who drive in St. Paul, know the roads are in bad shape and that the city has aging water and sewer lines.  According to St. Paul Public Works Department, it is responsible for “1,874 miles of streets, 806 miles of sanitary sewer, 450 miles of storm sewer, 107 bridges, and 145 miles of bike lanes.”   St. Paul only has money, for example, to repair eight miles per year of its roads.  The City’s infrastructure is in bad shape, and the problem is being kicked down the street for future generations to finance.  In effect, we are saddling our children with the cost of  fixing a crumbling infrastructure–they will have to pay for repairs we refuse to finance.  How fair is that to them?
If we really wanted to make a difference in the lives of present and future generations in St. Paul the City and is people would commit to a realistic multi-year infrastructure plan.  The benefits in doing this are significant.  First, it addresses a real need–fixing the roads, bridges, and other public systems.  Their decay costs, for example,  drivers money every year in terms of car repairs.  Second, it is a public investment in a public project, having collective benefits for the city that do not run the risk of being exported or lost in the way a CSA can be if someone moves.  Third,  infrastructure investment produces jobs–not just in construction, but a lot of different types, and that benefits current and future St. Paul residents–and there is solid evidence to support this.  Fourth, infrastructure investments help the economy and employers, not just workers.  
Finally, infrastructure investments may be a better way of helping the poor than CSAs.  As noted, they provide jobs, but also they take away from our children the burden of having to assume the debts to repair the City’s infrastructure.  In effect, CSAs may provide funds for future children, but any benefit they bring will be offset by the costs to them for fixing a failing infrastructure.  The real progressive solution, and not just the feel good one, might be fixing the infrastructure.

Tuesday, May 8, 2018

With Unemployment So Low Why are Wages Stagnant?

My latest blog originally appeared today in Counterpunch.

If the unemployment rate is so low why have wages for most Americans failed to go up very much recently?  The simple answer is for the very same reasons why economic inequality and social mobility in America has largely ground to a halt in the last 40 years–the decline and war on labor unions.

Last Friday the Labor Department announced that the unemployment rate dropped to 3.9%–the lowest rate since the 1990s.  Yet with this drop wages have yet to increase very much, especially since the Great Recession of 2008.  Why?  Venerable neo-liberal economists, such as the New York Times’ Paul Krugman, hypothesize that employers are reluctant to raise wages for fear they cannot cut them in the future. Others contend that we have not fully recovered from the recession or that the actual labor force participation rates are still high, making wage increases sticky.  All of these explanations miss the point.  Employers are not raising wages because they do not have to.  The reason is that labor unions are so week now that they cannot do what they historically have done which is to pressure employers to increase wages.

Last week was May 1–May Day.  Yet people forget why we have unions. The last 150 years of American history is the battle of workers and unions against corporations. America in the late nineteenth and early twentieth century was the country of  trusts.  It was the emergence of the railroads, steel, big oil, and monopolies.  It was also the era of sweatshops, child labor, adulterated and unsafe foods, and the six day, 70 hour+ work weeks.  It was also the era of piecemeal below subsistence wages, poor working conditions and high injury rates, no health benefits, no retirement benefits, and no protections against discrimination and harassment.  It was the world of Upton Sinclair’s The Jungle. Unions were illegal, and workers who stood up for their rights were beat up by the Pinkertons–company hired security–or arrested by the newly created public police forces which were created to control and brake unions.

No one should wax romantically for this era if you care about workers and the people.  America economically may have grown exponentially, but it did so unevenly, producing massive fortunes for a few but significant economic inequalities for the rest.  The America of the early nineteenth century–the one that Alexis De Tocqueville so famously described in his Democracy in America as one characterized by a general equality of conditions–had vanished.  By the time the stock market crashed in 1929 the income and wealth gap in America had literally produced two Americas:  One was the country of F. Scott Fitzgerald’s The Great Gatsby, the other of the depression-era novel The Grapes of Wrath by John Steinbeck.

The 1935 National Labor Relations Act (NLRA) or the Wagner Act brought relative peace to the labor market in that it recognized the right of workers to collectively bargain.  The NLRA established a process for how to unionize, organize workers, hold elections, and bargain for benefits.  It was a victory for workers, but also for the American people and the economy.  The Wagner Act was part of the New Deal, it was one element in a package of legislation to restructure the economy and fix the market failures in the economy.

The NLRA had more than an economic purpose or impact.  Many of the economic problems in America are political.  They are produced by asymmetric political power between corporations, the rich, and rest of the people.  Unions at their best can be what Arthur Schlesinger, Jr., once called the countervailing power to help limit the power of businesses and corporations.  The Wagner Act thus reset the political equilibrium in American politics to help favor the people.

And it worked.  Labor density and unionization in America dramatically increased in the United States, peaking in 1954 with over 35% of the workforce collectively bargained.  But what did unions accomplish?  There is powerful evidence first that they brought tremendous economic benefits to American workers and the economy.  They produced the minimum wage, the eight hours, five day work week.  They improved workplace safety, gave us health insurance, retirements, and workers compensation.  They raised the standard of living of most Americans, often even those not in unions. They also helped bring more economic equality to the economy, significantly erasing the disparities of the Gilded and Robber Barron eras.  Unions grew and flourished  at a time of significant economic growth, and there is little hard data to show that they caused rises in unemployment.  America’s post WW II affluence is tied in with unions.

But in addition to the economic benefits that unions bring, there was a political aspect to them.  Unions were part of the Democratic New Deal coalition.  The strength of the Post World War II Democratic Party dominance was tied to unions.  Unions got out the vote and they did so to the advantage of Democrats.

But many employers, conservatives, and Republicans hate unions.  Even many workers, especially white collar professionals, share this animosity, thinking they are better off on their own. Almost from the day the NLRA was passed opponents sought ways to circumvent the law.  The found ways to fire striking workers and replace them.  They harassed and fired organizers, they found ways in court to delay or challenge elections.  They claimed unions hurt the economy or restricted individual freedom and passed right-to-work legislation.  Yet unions remained a potent force in American politics until President Reagan became president and signaled with the firing of the air traffic controllers in 1981 that it was okay to go to war against the unions.  Since then, one can  correlate the rising inequality that Thomas Piketty describes or the decreasing social mobility in America to the decreased power of unions.

As Barry Bluestone and Bennett Harrison tell in The Great U-Turn, the Reagan era war against unions was part of a strategy along with deregulation and tax cuts to restructure the economy.  It was also part of a political restructuring of American politics.  The strategy has largely worked.  Overall, less than 12% of all workers are now in unions in the United States, with only 7% of the private labor force collectively bargained.

The decline of the American income in the last 40 years goes part and parcel with the decline of unions. In the last thirty years the American economy has seen a dramatic increase in the gap between the rich and poor such that it now mirrors that of the 1920s.  According to the United States Census Bureau in 2010 the richest five percent of the population accounted for 21% of the income, with the top 20% receiving over 50% of the total income in the country.  This compares to the bottom quintile accounting for about 3% of the total income.

A second study by the Center on Budget and Policy Priorities in 2010, drawing upon Congressional Budget Office research, found that income gap between the top one-percent of the population and everyone else more than tripled since 1973.  After-tax income for the top one-percent increased by 281% between 1973 and 2007, while for middle class or middle quintile it increased by 25%, for the bottom quintile it was merely 16%.  Looking beyond income to wealth, the maldistribution has not been this bad since the 1920s.  According to the Institute for Policy Studies, in 2007 the top one-percent controls almost 34% of the wealth in the country, with half of the population possessing less than 3%.  Since the Great Recession, the numbers have accelerated.

Opposing unions and workers costs families money.  There is a significant difference in median family incomes in states that are right to work (RTW) versus those that are not.  Several years ago I did a study using a three years average median family income for 2009 to 2012.  I found that  RTW states have a median family income of $46,919, non RTW it is $53,418–a difference of $6,499 or 13.9% per year.  Testing for the statistical impact of RTW on median family incomes, the relationship is -0.4.  This means there is statistical evidence that RTW is associated with lower incomes.  RTW depresses wages.  If all of this does not demonstrate a war against unions it definitely does reveal an attack on workers.

Yet Americans have been convinced unions and workers’ rights are bad.  They resent successful unions that pay better wages than they receive instead of organizing to bring themselves up to that level.  We live in a culture that worships the Donald Trumps and MBA-led management teams, yet these are the people who brought us the economic crash of 2008, gross mismanagement of the economy, and the mass layoffs that frequently dot our workplaces.  For many middle class workers, the image of a surprise visit to your cubicle by a HR person with a box telling you that you are fired and have one hour to clear out your desk is all too real.  Yet despite this, Americans continue to believe that they are better off without unions and worker protections.

Fixing the NLRA is a must to yet again reset the economic and political imbalances in the law.  Some claim that unions are no longer relevant or that their corruption has led to their own demise.  There is no question that unions need to clean up their act and support meaningful government reform, but there is also evidence that many people do want to organize and want representation in a union.  If it were easier to organize, perhaps more people would have health care even without Obamacare, or maybe more people would have retirement pensions.

At the federal level, unions made fixing the Wagner Act a top priority in 2008 and 2009 with the Employee Free Choice Act.  The law would have streamlined organizing and holding elections.  While initially as candidate saying he would support such changes, President Obama never pushed the Act when the Democrats had control of Congress, and now the chances for its passage are dead.  Perhaps the most important structural reform of the economy Obama could have made, he simply ignored, costing lasting damage to workers and middle class America.  And how with the Supreme Court ready to take the final constitutional shot against public sector unions, the last organized force to represent workers will be gone.

Thursday, May 3, 2018

Giuliani’s admission about paying hush money to Stormy Daniels strengthens special prosecutor’s obstruction of justice claims and why presidential pardons may make problems worse for Trump

Note:  This is a press release I am sending out today.

The obstruction of justice and other potential criminal charges against Donald Trump were
strengthened by Giuliani’s admission about paying hush money to Stormy Daniels, and the use of presidential pardons may make problems worse for the president.

SAINT PAUL, MN (PRWEB) May 3, 2018 -- Hamline University professor David Schultz, noted expert on constitutional law and legal ethics, argued today that obstruction of justice and other potential criminal charges against President Donald Trump were strengthened by Giuliani’s admission about paying hush money to Stormy Daniels.  He also argued that presidential pardons to shut down the investigations may constitute new evidence of obstruction of justice.

According to Schultz: “Giuliani’s admission closes an important circle, connects critical dots, and portends far more serious problems for Trump than simply a violation of campaign finance laws.  Trump always had plausible denial that his attorney Michael Cohen had gone rogue when he made payments to stormy Daniels to silence her, even though the general presumption is that lawyers act as agents for their clients.   Acting alone,  one could argue that Cohen’s payments were independent expenditures meant to influence the presidential campaign and therefore should have been  reported, as required by federal campaign finance law. Giuliani’s statement clearly ties Cohen, to Trump and Daniels and it now raises questions about possible illegal activity of Trump or the Trump campaign regarding the 2016 election.  Even more powerfully, for a president who claimed he has done nothing wrong, this connection impeaches Trump’s credibility, raising questions about his motives regarding other criminal allegations he is facing, as well as whether he took other action to obstruct justice.”

Schultz, author of more than 35 books and 150 articles on various aspects of American law and politics, including his most recent two volume Constitutional Law in Contemporary America, (West Academic), said on Thursday that critical to establishing obstruction of justice under federal law is showing a corrupt intent meant to impede a criminal investigation.  The acknowledgment of the Stormy Daniels payment provides evidence of an intent to hide or obstruct information, leaving open interesting questions regarding whether he has undertaken other actions with the intent of concealing information or obstructing the legal.

Additionally Schultz, who teaches government ethics and criminal law, also said: “If Trump thinks that issuing pardons to his attorney Michael Cohen or other will stop the criminal inquiry, he is wrong.  First, while presidents may issue pardons, if the purpose of the pardon is to impede a criminal investigation, that pardon may be evidence of obstruction of justice.  Second, the use of a pardon will remove the ability of individuals to assert their Fifth Amendment right to remain silent, thereby making it more probable that people such as his attorney would potentially have to provide against evidence against the president.  Any pardons at this point by the president are suspect and potentially more damaging to the president than even Giuliani’s statements.

Schultz is a professor of political science at Hamline University. He has taught classes on American government and election law for more than 25 years. A  three time Fulbright scholar and winner of the Leslie A. Whittington national award for excellence in public affairs teaching,   David Schultz is the author and editor of 35 books and 150 articles on American politics and law and is a frequently quoted political analyst in the local, national, and international media.


Wednesday, April 25, 2018

Why Donald Trump should not be allowed to pardon Michael Cohen, his friends, or family members

Today's blog originally appeared in Counterpunch.

Donald Trump is perfectly within his constitutional authority to pardon his attorney Michael Cohen,
even before he is accused or convicted or a crime, as the president recently mused. Trump was also within his authority when he pardoned Scooter Libby, as well as ex-sheriff Joe Arpaio.  And Trump might be within his authority to pardon his children and many others in his administration, and there is little anyone can do about it.  And that is the problem.  The concept of unlimited discretion of the president to issue pardons and reprieves is clearly inconsistent with the concept of limited government and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

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

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

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

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

 In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the
 "power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." The pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

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

 Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Already there are some limits to the pardoning power.  Trump cannot use it to escape impeachment, or to protect himself from any civil law suits such as for sexual harassment.  Nor can he issue pardons for violations of state criminal laws.  Moreover, presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford–or be subject to impeachment as Harvard law professor Noah Feldman contends.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

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

Saturday, April 14, 2018

Trump, Cohen, and the Limits of Privilege

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
Executive privilege is what Donald Trump as president may try to invoke if he seeks to squash subpoenas issued by the special prosecutor in the criminal investigation into Russian collusion or other alleged illegal activities.  Executive privilege is grounded in the concept of separation of powers–found especially in Article II, section 2 of the Constitution.  The concept of executive recognizes that some conversations of the executive (which includes the president) are insulated from scrutiny by other branches.  There may be times when the president needs confidentiality to have candid high-level conversations, tossing about ideas or policy options, for example.  Yet this privilege is not absolute, as the Supreme Court said in U.S. v. Nixon, 418 U.S. 683 (1974).
In Nixon at issue was whether president had to comply with subpoenas from a special prosecutor seeking tapes of White House conversations that could possibly be evidence in a criminal matter.  Nixon asserted that executive privilege is absolute, the Court rejected that claim.    It declared: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” (418 U.S. 706)  More specifically, when weighing executive privilege against the needs of the fair administration of justice, the Court declared:

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. 713)

Any generalized assertions that Trump or the White House may make on claims of executive privilege to impede a criminal investigation would be rejected under Nixon.  Whether such action would then rise to the level of obstruction of justice is a different question.  But at the least Trump would lose here.
Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States, 449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.
Generally, attorney/client privilege is absolute–no showing or hardship can overcome it.  The government cannot say that “We know you said incriminating things to your lawyer and we want to know what it was you said.”  The very purpose of the privilege is to protect individuals seeking legal advice from having their conversations exposed.  Yet there are limits to this apparent absoluteness of attorney-client privilege.  First, in In re Grand Jury Subpoena Duces Tecum 112 F. 3d 910 (8th Cir. 1997), then president Clinton sought to invoke both executive and attorney/client privilege to prevent a special prosecutor from securing notes and documents regarding White House conversations with counsel.  These conversations related to the special prosecutor’s investigation of the Clintons’ dealings with Whitewater Development Corporation when he was governor of Arkansas.  Eventually because of Nixon, Clinton dropped  the executive privilege claim, but the Court ruled against him on the attorney/client claim.  It did so by arguing that the use of this privilege  by the White House undermined values such as transparency and the promotion of justice that the government should pursue.  Thus, attorney-client privilege will not protect the president acting in his White House or presidential capacity.
But there is another exception to attorney/client privilege applicable to Trump as a private person and to his attorney Michael Cohen.  It is the crime-fraud exception.   The crime-fraud rule is premised on the notion that lawyers should not be using their legal skills to commit crimes or help their clients break the law.  Such action would be aiding and abetting, for example.  If clients are suspected of using their lawyers to break the law (or attorneys are themselves suspected of the same), attorney-client privileged may be cracked.  How so?
In United States v. Zolin, 491 U.S.  554, 572 (1989) the Supreme Court articulated a test outlining when and how attorney/client privilege may be crack.  That test is best described in United States v Chen, 99 F.3d 1495 (9th Cir. 1996).

First the government must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and then if the judge decides this question in favor of the government, the otherwise privileged material may be submitted for in camera examination.(99 F. 3d at 1503).

Under the Zolin-Chen test, a judge must be persuaded that a preliminary showing has been made to think that examination of attorney/client conversations will indicate a crime has been committed.  In the case of the Michael Cohen, a prosecutor probably made that showing to a judge, resulting in the issuance of a search warrant to secure his records, including those with Trump.  The next step is a separate hearing for a judge to examine the materials to decide if the crime-fraud exception applies.  This is probably the hearing that is going to happen and which the media seemed perplexed about.  If then the judge is convinced that the exception applies, then it may be used against Cohen or Trump.
Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.
Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

Monday, April 9, 2018

The Tragedy and Farce that is Tim Pawlenty

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.
—Karl Marx, The Eighteenth Brumaire of Louis Bonaparte.

But when the same person reappears twice, neither Hegel nor Marx saw that he would represent both tragedy and farce at the same time.  So it will be with the candidacy of Tim Pawlenty running for a third term as governor of Minnesota. 
Pawlenty’s candidacy is both a tragedy and a farce, but it is also a long shot where the prospects for success are low.  But his candidacy speaks to many failures in state and national politics, especially with Republicans who are torn between  embracing Trump versus repelled by him.
Consider first the tragedy–Pawlenty’s governorship was largely a failure unless one defines a single-minded cut taxes über alles to be the hallmark of success.  His candidacy was launched in 2002 in the waning days of the Ventura administration when the state and national economy were collapsing after 9/11 and the busting of the era.  As it was clear that the state was going into the red Ventura proposed tax increases and budget cuts to balance the budget, yet Pawlenty and roger Moe-as respective leaders of the Senate and House, nixed that idea, choosing to kick the fiscal problems down the road past the election. These fiscal gimmicks defined the Pawlenty administration and they included illegal use of unallotments, stealing from the tobacco settlement, trying to force contractors to pay for construction projects up front, and calling taxes user fees.  One also saw a failure to raise state matching funds to qualify for federal transportation matching funding, and borrowing from schools and other funds.  When Pawlenty left office, he strapped the state with an illusionary balanced budget for the current biennium and a projected $6 billion deficit for Dayton.  So much for fiscal conservatism.
Tragedy–in terms of a  fallen bridge–is a lasting image of his governorship, and was also how Pawlenty got elected twice and which defined his governorship.  In 2002 he was in second place behind Tim Penny in the race for governor when Paul Wellstone’s plane crashed and he died.  That event, plus then the Wellstone memorial service, transformed state politics resulting in Pawlenty winning the governorship with 44.4%.  Four years later, with only days before the election he was behind Mike Hatch, only to see the latter make several statements that cost him the election.  In addition, when one examines the election returns, it was the strong turnout for Michele Bachmann in the Sixth Congressional District that pushed Pawlenty across the finish line with 46.7% of the vote.  Pawlenty never won a majority of the popular vote, and were it not for tragedies or missteps by others–or the help of others–he would not have been governor.  Couple these events with his miserable run for president and one can really ask how good or formidable a candidate he was.
Given the tragedy of his governorship, it is a farce for him to run again.  Watching his video declaring one wonders what is his narrative or rationale for running?  In addition, Pawlenty is a person trapped by history.  He both wants to embrace and reject Trump, he wants to appeal to a party that once supported him but which no long exists.   He needs a GOP base to win but he is alienated from it while at the same time embracing it will alienate him from the s wing voters he needs to win.  Moreover, Pawlenty has historical baggage which will define him among voters who remember him, but he was governor so long ago he lacks the name recognition that many think is his real strength.  Pawlenty will be attacked and defined by both Jeff Johnson and other Republicans as out of step and as a failed governor, damaging him if in fact he does manage to go to a primary and win (which I am not sure he will).  At the same time the eventual DFL gubernatorial candidate will benefit from these attacks, making it hard for Pawlenty to win come November.

Saturday, March 31, 2018

Trump v. the Law: How Four Types of Lawsuits will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US
presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.
Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one. 
Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.
The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.
Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.
Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.
Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.
Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.