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.

“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?

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.

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.

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.

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.

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.

Advice to the Incoming Mayor of St. Paul, Melvin Carter

This is a letter I sent to Melvin Carter on November 14, 2017.  It easily could have also been sent to
Jacob Frey.

November 14, 2017

Dear Mayor-elect Carter:

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

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

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

In many ways, St Paul is two cities.  No, not two separate cities, but two cities each within itself. St Paul is a shining cities on the hill for those who are white, affluent, and live in the right neighborhood.  But it also a city of concentrated poverty, racial disparities, and lack of opportunity for  people of color, the poor, and those who live in the wrong neighborhoods.  The defining issue for the 2017 St Paul mayoral election ought to have been in part about rectifying the difference between the two cities–providing justice to all to prevent the conditions that led to the deaths of Jamar Clark and Philando Castile, and all the anonymous individuals who are victims of race and poverty.

St. Paul is a great city with a wonderful quality of life, for some, but  hugely segregated by race and income.  It was that way nearly 20 years ago when I worked for the University of Minnesota’s Institute on Race and Poverty and we documented that segregation.  Over a generation little progress has been made.

The issue for St Paul is social and economic equity. Fundamentally, the defining issue for the city is creating economic opportunity for all.  It is making it possible for individuals, regardless of race or neighborhood, to have a decent job, a choice of where to live, a voice in where to send their children to school.  The role of the mayor is steering investment, encouraging economic development, making it possible for people to create their own businesses.  Expand the economic base for all, especially those who are left out already, and that is they way to generate the resources both to finance the city and help those who have been left behind.

Such a vision requires several things.  Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood.  Rethinking the two cities’ comprehensive plans is one step.  Allowing in some places for more intensified or mixed development, to allow some people to  invest in their own neighborhoods will help.  Yet private investors and banks will not act on their own to finance this.  St Paul needs to think of its own investments in terms of streets, sidewalks, and  other services such as code enforcement.  The city can help foster the conditions for economic development in the various neighborhoods, but it can also do things such as provide micro-financing to help some communities and guarantee loans in some situations.  Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity-based.  Thus, both place-based and mobility strategies are needed.

But that is not enough.  Businesses or people invest where there are skilled workers.  Strategies to attract and remain college graduates and provide real training for those lacking skills too are important.  Better partnerships among the local colleges, employers, and workers to train and connect businesses to people should be on any mayoral candidate’s agenda.    Quality services, the amenities of parks, libraries, and the arts are too what candidates should be discussing.  So too should they be talking about schools.  No, mayors cannot improve schools themselves, that is not their job.  But they can provide the conditions that make it possible for children safely to go to schools, or to live in neighborhoods that support learning though the maintenance of libraries and communities centers, for example.

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

Third, St Paul has finite resources, property taxes are going up rapidly, and the traditional middle class feel squeezed that they cannot afford to stay in their homes anymore, or that they cannot buy or rent a place in the city.  Raising taxes is not always  the solution.  If one wants to raise the minimum wage to a living wage, then one also needs to think about creating the businesses and jobs that will provide these types of wages.

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

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

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

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

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

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

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

I wish you well as mayor.