Wednesday, February 12, 2020

Rush to Judgement: What we Should or Should not Infer from Iowa and New Hampshire

There are 3,979 delegates to the Democratic National Convention.  To win the nomination one needs
1,990 delegate votes.  After Iowa and New Hampshire only 65 or 1.6% of all the delegates have been awarded.  The primary season has barely started.  Yet many pundits, political experts, and the media want to reach broad conclusions about what is happening.  On one level any inferences from Iowa and New Hampshire should be premature yet already we have declared winners and losers, with some candidates having already dropped out and others seen as frontrunners or not.

Bernie Sanders
On many counts Bernie Sanders is the frontrunner for the Democratic nomination.  While he is only one delegate vote behind Peter Buttigieg (22 to 21 out of the 1,990 needed to win the nomination), he has won the popular vote in Iowa and New Hampshire and he is ahead in the fundraising battle. 
Moreover, with the other liberal Elizabeth Warren coming in third and fourth  in the first two states, her campaign seems to be floundering, seeming to suggest Sanders is on the cusp of consolidating the progressive wing of the Democratic Party.  At the same time, the moderate wing, represented by Joe Biden, Mayor Peter Buttigieg, Senator Amy Klobuchar, and Mayor Michael Bloomberg, is more divided.
Moderates, worried at the prospects of a Sanders nomination, are touting Buttigieg and even Klobuchar post New Hampshire as winners, with the latter, despite a fifth a third place finish in Iowa and New Hampshire, now the latest alternative to a fallen Joe Biden.

Joe Biden
Based on two states, it looks like former Vice-president Joe Biden’s chances for the nomination are not good.  He has had two dismal showings (fourth and fifth in Iowa and New Hampshire respectively), and he appears to be behind two other candidates, Peter Buttigieg and Amy Klobuchar for the moderate vote, and behind the frontrunner liberal Bernie Sanders and even Elizabeth Warren.
Why has Biden done so badly?  Several reasons,   One, the center of the Democratic party has moved left from where President Barack Obama and Biden were when they left office.  Two, Biden has run a lackluster campaign and his debate performances have been weak.  Three, like Hillary Clinton in 2008 and 2016, he is running like he deserves the nomination.  Yet to rule Biden out would be a mistake for several reasons.
Yes the results in Iowa and New Hampshire will create momentum, media attention, and money for its winners, Yet Iowa and New Hampshire are very different from the next two states, and even the rest of the country.  The US overall is 60% White Caucasian, with Iowa and New Hampshire respectively 86% and 90%.  They are racially not representative of the country, let alone of the Democratic Party where according to 2016 presidential exit polls 71% of the electorate was White, but 74% of the votes for Clinton were from people of color.
The next two states, Nevada and South Carolina, are 49% and 64% white, with high percentages of the Democratic voters people of color.  These next two states are very different from Iowa and New Hampshire.  Joe Biden enjoys significant support among people of color, especially African-Americans, whereas none of the other candidates do well with minorities.  This may change the race for the nomination in many ways because candidates such as Buttigieg and Klobuchar will be challenged to reach out to a different racial demographic.  So far their appeal has been to run as Midwesterners with Midwest values, failing to realize that such designations are code words for “White” among people of color.  White may work in Iowa and New Hampshire, but it is less clear it will work in Nevada and South Carolina.  And even if they get the nomination for president, there is a calculus here.  How many White Trump votes can they move (when the evidence suggests Trump has 90%+ support of his base) versus how many people of color do they turn off?  The argument for the moderate Democratic candidate relies upon a net positive sum for this tradeoff, especially in critical swing states.

Michael Bloomberg
Michael Bloomberg now will be an increasing factor as he will appear in debates and in the primaries.  He has already spent more than $400 million in advertising, giving him a fourth if not better place in some national polls.  He appears to poll as well as any candidate in a head-to-head with President  Donald Trump.  Bloomberg’s money will be a factor for all of the candidates going forward, not just for the moderates but also for Sanders who will have to basically run against him.  This divide will be a major problem for the Democrats going forward.

Conclusion
More than 98% of the Democratic delegates have yet to be awarded.  The size of Super Tuesday and especially the frontloading of the California primary change the value of Iowa and New Hampshire.   It is not clear that one can really extrapolate from less than 2% of the delegate count to inferring much of anything.

Saturday, February 8, 2020

Lessons from the So-Called New Hampshire Presidential Debate

What did we learn from the so-called New Hampshire Democratic presidential debate?  The simple answer is that if they keep it up the Democratic Party will debate itself into losing the 2020 presidential race.
The New Hampshire debate, like all of the previous ones over the last few months, was  not a debate.  They have been simply media events, Jerry Springer shows full of one-liners, petty attacks, and vacuous positioning on issues that hardly count as debates and  where CNN or the moderators egg on the participants.  Real debates are when individuals take positions on issues, argue to points, and provide reasoned arguments and evidence to support their claims.  This was not what happened in New Hampshire or in any of the previous debates. There was no substance here.  To recall a famous line Walter Mondale once used against Gary Hart: “Where’s the beef?”
What we saw in New Hampshire was predictably boring.  The front runners Buttigieg and Sanders were attacked by Klobuchar and Biden who has to recover from Iowa.  Warren, Steyer, and Yang did their best to be relevant, and all of them tried to argue that the reason to vote for them was that they hated Trump the most or they were the most electable.  None of them, bar Sanders, really spent much time articulating their narrative for why they should be president, what they hoped to do, or what they sought to accomplish in a meaningful way.  It was a boring Jerry Springer show. 
What one took away was a choice: Vote for an inexperienced frontrunner who takes money from billionaires or vote for a billionaire directly who was a mayor of a city 86X more populous, or vote for me because I tell  folksy Midwestern jokes, because I will do well in South Carolina, or because even though I did bad in Iowa and probably will do so in New Hampshire, I am still the most electable.
Moreover, the debate seemed to show that there is a collective action or tragedy of the commons problem with the Democratic Party.  By that, Ronald Reagan famously declared the Eleventh Commandment that: “Thou shalt not speak ill of any fellow Republican.”  For Democrats their Eleventh Commandment seems to be: “Thou shalt only speak ill of any fellow Democrat.”  It is in the collective interest of the Democratic presidential candidates and party not to attack one another, but it is in the interest of each on individually to do so.  The presidential candidates view the presidential race as a zero sum game, I win only if you lose.  The path to the nomination is dirty and attack everyone else, rendering you the last one standing,  fully damaged by the process.
The two biggest winners of the so-called  New Hampshire presidential debate were Donald Trump and Michael Bloomberg.  All agreed Trump needed to go but failed to say much beyond that in terms of a clear vision of where to go next.  All of them also could hear Bloomberg’s absence as deafening, feeling the need to attack him because as one watches his ads you get the sense that “Mike will get it done” gut the others are clueless regarding what its is or how to get it done.
The biggest losers were the Democratic Party and the American public.   This media event simply torn one another down and did little to repair the debacle of Iowa.  The American public, still registering high disapproval for Trump and yearning for an alternative, did not find it here, at least with the format offered.

Saturday, February 1, 2020

Iowa and the Real Start of the 2020 US Presidential Election

Monday, February 2, is the official start of the 2020 presidential elections.  It is when the Iowa
caucuses take place.  Here are some thoughts.

What should we expect from this primary season?

The Democratic Primary season starts with the Iowa caucuses.  Traditionally the value of Iowa is that it serves as a testing ground and an way to winnow down the number of potential or viable candidates moving forward.

Based on the most recent polls, There is a cluster of four to six candidates who are still viable: Biden, Sanders, Warren, Buttigieg, Klobuchar, and Bloomberg.  Bloomberg is not contesting Iowa.  For the first five, to remain viable going forward one probably needs to finish in the top three.  Specifically, for example, Klobuchar, who has made Iowa the centerpiece of her presidential campaign, must come in the top three to remain viable.  Moreover, if she beats Buttigieg, or vice versa, the loser is probably also going to have a hard time going forward.  Similarly, Warren and Sanders are fighting for the progressive wing of the party and the one who comes out on top will be the leader for that side.

Right now, polls suggest it is Biden and Sanders who are in the lead in Iowa.  Sanders is also leading in New Hampshire.  After that, Biden leads in Nevada and South Carolina.  The point is that very rapidly I can see the race turning into a Sanders-Biden contest, with Bloomberg’s money making him a wild car going into Super Tuesday.  All this suggests that the Democratic Party is still torn between progressive and moderate wings, much like in 2016, and the challenge is finding a way to unite the party.  Which candidate can do that and how is an interesting question.

- What's on stake for the Democratic party?
Obviously beating Donald Trump is the big issue, but so is uniting the party, bringing in the next generation of Democratic voters, and taking back the Senate and making gains in the state legislative elections as one prepares for redistricting in 2021.  All of these events define important political events and challenges for the Democratic party.

- What's the biggest challenge they face right now?
Finding a viable message or narrative to defeat Trump along with devising a campaign strategy to beat him in the critical few swing states that will decide the election.
- Which candidate do you think is best equipped to win the nomination?
Right now it looks like Biden is better equipped to win if one follows a convention strategy.  But he may not inspire younger votes.


- Is there any chance to defeat President Trump?
It will be a close election.
The 2020 presidential race is effectively over in 44 states plus the District of Columbia.  Who will be the next president is down to a handful of voters in six swing states.

Based on recent elections, voting patterns, and polling, a Democratic Party candidate for president is nearly certain to win California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, (overall state) Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York,   Oregon, Rhode Island, Vermont, Virginia, and Washington.  This is a total of 19 states plus the District of Columbia.  In the case of Maine, Democrats probably will overall win the state and three of its four electoral votes.  The other electoral vote, which is for the Second Congressional district, goes to the Republican.  Democrats start with 222 electoral votes.

A Republican Party candidate will win 30 states plus part of Maine.  These states are  Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, (Second Congressional District), Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.  Republicans start with 216 electoral votes. 

Yet there are six remaining states–Florida, Michigan, Minnesota, North Carolina, Pennsylvania,  and Wisconsin–totaling 100 electoral  votes, which are too close to call and they are the swing states that will decide the presidency.  The task for the Democrats is finding a candidate who can not only hold their base states but win enough electoral votes in these swing states to win the election.  Remember:  The popular vote does not matter and national opinion polls do not matter.

The road to the White House starts with Iowa and ends with these six states.

Sunday, January 26, 2020

It's not just Trump: The Case for a Weaker American Presidency


                    The American presidency is too powerful.  That is what the Senate impeachment trial and the 2020 presidential election should be about.  Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.
            Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.
            The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.”  But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies.  They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta. 
            So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him.  In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person.  James Madison said it had to be clear that the president did not have either legislative or judicial powers.
            As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary.  Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.”  James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become.  Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”
            Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson.  Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority.  Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law.   All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.
            As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation.  The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent.  The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds.  The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders.  The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees.  It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.
            At the time these laws looked like limits on presidential authority, but they failed for many reasons.  One, as with the Ethics in Government Act, they exempted the president from many requirements.  Two, Supreme Court decisions favored executive branch power.  In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional.  In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.
            Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act.  For example, the National Emergencies Act never defined what a national emergency was.  Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.
            Nearly a half-century later, these post-Watergate limits have faded with memory.  The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution.  President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.
            What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office.  For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas.  Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.
            What might some of those new limits be?
            Reauthorize the special prosecutor law to investigate the executive branch.
            Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.
            Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.
            Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.
            Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.
            As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.
            Overnight it will not be possible to reassert the balance between Congress and the president.  The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this.  Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.

Friday, January 10, 2020

Education, Racial Disparities, and the Minnesota Constitution

Minnesota has one of the worst K-12 racial education achievement gaps in the country and
something needs to be done. Yet contrary to a  recent proposal by former Minnesota Supreme Court Justice Alan Page and Minneapolis Federal Reserve Board President Neel Kashkari, amending the Minnesota Constitution to fix it will do little and potentially make it worse. 
            Minnesota has a persistent problem with race.  The Twin Cities is one of the most racially segregated metropolitan areas in the nation.  The state’s racial financial wealth gap is the worst in the nation.  The racial incarceration gap is among the worst. There is a persistent racial  health care outcomes disparity among the worst in America. Among so many measures Minnesota ranks among the bottom when it comes to racial issues.  The same is true with K-12 education.
            Minnesota’s story when it comes to race and education is an extreme example of what happened nationally.  When the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) that separate but equal was an unconstitutional principle when it came to segregated schools, many thought that this court case would promote integration and end racial disparities in education.  Instead it produced an intense fight over schools, resulting in white flight from the cities to the suburbs, including in Minnesota, only exacerbating the problem.  Then when the Supreme Court ruled in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) that educational funding disparities did not violate the US Constitution, the Supreme Court effectively signaled it was abandoning the battle to address educational equality.  Over the next 20 years it eventually issued several decisions that eased federal oversight or enforcement of desegregation.  This shifted the battle to the states.
            The state battle was a litigious one.  All 50 states have constitutional clauses that provide some guarantee of free public schools.  The language varies across states, but like many, Minnesota’s original 1857 Constitution in Article XIII, section 1, called for a “general and Uniform system of public schools…throughout the state.”  This language remains the same today.  Over time, litigants used state constitutional clauses to address racial discrimination.  Then there was a second wave of litigation to promote equal funding, then a third to demand adequate funding.   Nationally and in Minnesota this litigation promoted some gains, but the problems persisted.  Thus, it is not completely unreasonable to think that adopting new constitutional language would impose new state mandates and funding in Minnesota, thereby either allowing for new state policies to be developed or new options for litigation to force change. 
            The Page and Kashkari proposed language is:  “All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.”
Legal change can promote social change.  Except improving educational outcomes is more complex than simply passing an education constitutional amendment.
            There are numerous flaws in the constitutional amendment approach.  First the achievement gap is part of a complex process of racial and economic segregation in housing and neighborhoods.  It is also a product of wealth, income, and health disparities.  Students of color are more impacted by these problems than are whites.  No matter how much one tries, it is hard to study and achieve in school with a growling belly, or forced to move constantly because of costly housing, or because parents are working multiple shifts or unable to afford day care.  Performance in school is hugely driven by background socio-economic forces that this constitutional amendment will not address.
            Second, in the very first education classes I ever took my teacher drew a triangle on the board and on one corner wrote school, and then home and community on the other two corners. He then said that students are educated in all three places–school, home, and community–with teachers, parents, and others all working to educate. His point was to drive home that schools and teachers at best are responsible for one-third of all the learning that takes place with students. Teachers cannot teach unless parents and other reinforce what they do and what their children learn in school.  We need to strengthen not just schools do, but also parents and families. A simple constitutional amendment will not do that.
            Three, the proposed amendment measures equal achievement by way of standardized test scores.  Overwhelming research already documents the racial and class biases built into these tests.  Additionally, especially since the days of No Child Left Behind which under President George Bush, the push for standardized testing has proven to be highly flawed.  Teachers are forced to teach to the test and curriculum limits learning to rote activity so that students do well on these exams.
            Fourth, and perhaps the biggest flow, is that the constitutional amendment does something without doing anything.  It puts all the energy into changing the constitution, but it kicks the more fundamental problems down the road.  The language is not a self-executing amendment, but it will require legislative action to define what are  the skills necessary for participation in the economy, our democracy, and society.”  This mandates important decisions to be made to define these skills, how to construct a curriculum to achieve desired goals, who can teach, and how to fund all of this.
Current constitutional language does not prevent the development of any of this, the problem has not been law but political will.  New constitutional language as suggested by Page and Kashkari too will not guarantee it, but instead would potentially push critical decisions about educational decisions into the courts where judges will have to make these decisions.    It is not clear that this approach is desirable, and it leaves policy formulation up to the distortions of plaintiff legal strategy, and not one necessarily based on promoting overall sound educational policy.
            Finally, stripping the language of uniformity from the current constitution does run the risk of opening the door to more privatized education.  In Florida, the Florida Supreme Court in Bush v. Holmes, 919 So.2d. 392 (Fla. 2006) used the uniformity clause to strike down a voucher system in that state.    Take away a uniformity clause and one increases the risk of undermining public schools. Thus, this language arguably would make the state less responsible for educational performance if it produced more private schools.   All of this is in additional to evidence that charter schools have exacerbated segregation, and at best there is mixed evidence that the school choice models have improved educational quality in Minnesota or internationally.
            Page and Kashkari should be commended for raising the issue of educational achievement disparities and the need for a new public policy approach.  But it is not clear that their constitutional amendment approach will achieve the outcomes Minnesota needs.