Sunday, March 18, 2018

Why a constitutional convention is a bad idea

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

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 Many see our Constitution and Bill of Rights as out of date.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

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

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

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

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

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

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

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

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

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

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

Friday, March 16, 2018

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

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

Tuesday, March 13, 2018

The Limits of Free Markets, Both Economic and Intellectual

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

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

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

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

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

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

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

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

Friday, March 9, 2018

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

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

Wednesday, March 7, 2018

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

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