Saturday, February 24, 2018

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

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

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

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

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

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

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

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

Monday, February 19, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 13, 2018

The Coming Republican State of Minnesota?

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

Saturday, February 3, 2018

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

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

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

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

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

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

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