The Pornofication of the 2020 Election

 American democracy  is threatened, but not for the reasons  depicted in recent election law porn. 

Donald Trump’s comments about mail-in-voting being rift with fraud or his refusal to respect a peaceful transition of power if he loses, while troubling, are merely a symptom of deeper  problems plaguing American democracy.

            Election law porn is the journalistic de jour theme of the corporate media now.  Recent articles in The Atlantic and The Guardian describe the 2020 elections as make or break for American democracy.  The New York Times and the Washington Post writers decry Trump’s threat to the United States and how he plans to steal an election.  Other articles tell of plots by Republican state legislatures to take away the popular vote and directly award the electoral votes to Trump.  All of these stories appeal to the fear, paranoia, and conspiratorial insecurities of Democrats, looking for reasons why Trump will win and Biden lose.  These articles represent bad journalism but are good clickbait business—they get readers to look at them, titillating their anger and arousing angst.  They are election law porn meant to hook readers.

These articles first feed into the Trump narrative.  For nearly five years the corporate media has profited over coverage of  Trump.  It gave him undue $5 billion free media coverage in 2015-2016 because it was profitable to do so.  It continues to cover ever one of his Tweets and statements he makes even though the mainstream media such as the Washington Post acknowledges that the president is a serial liar. His lies are brilliant diversions that set the political agenda.  Criticize the president about his handling of the pandemic and he talks of fraudulent vote by mail.  Ask him about health care and he will talk about not accepting  the results of an election or agreeing to a peaceful transition of power if he loses.  Simultaneously the press and the public—mostly Democrats—take every word he utters as a lie and as literal truth.  Take a lot of what he says, as Hermann and Chomsky declared in Manufacturing Consent, as part of a propaganda machinery in a symbiotic relationship between him and the corporate media where the latter takes what the former says and delivers it in a way to sell news and divert the public from the real problems.  Here the real problem is what is wrong with American democracy.

As noted above, among the more recent manifestations of election law porn is that Republican legislatures will force delays in vote counts or otherwise take actions to directly award electoral votes to Donald Trump as a way to ensure his victory.  Great conspiracy, thin reality.

The Constitution does ultimately allow state legislatures to pick the electors who pick the president.  Our popular votes for president to select the electors are a product of state law which theoretically can be changed.  Yet in reality it would be difficult and probably not make a difference. According to Ballotpedia, there are 36 states where one party has a trifecta where it controls both houses of the legislature and the governor’s office.  Of those 36, Democrats have 15 trifectas, Republicans 21.  Of those 21 states, only two—Florida and Arizona, are swing states where Joe Biden has a chance to win.  Perhaps maybe three if Ohio is still a swing state. The remainder of the states where Republicans hold a trifecta are ones Trump is going to win anyhow.  Of the real swing states in play—Michigan, Minnesota, North Carolina, Pennsylvania, and Wisconsin, there is no trifecta and therefore Republicans could not change the law to pick the electors.  If Biden loses the election by losing in these swing states  it is plausible  he will do so simply because he ran a lackluster campaign  or the voting demographics in these states were against him.

Yes, there are additional and legitimate fears that this election will be close and  in some states there will be allegations of vote tampering and miscounts.  One should not minimize these as issues, but again they are diversions away from the more systematic and deeper problems facing  American democracy.

The United States is a troubled democracy.  Even before Donald Trump it faced problems.  Its gap between the rich and poor is among the highest compared to other western-style democracies with wealth and income concentrating into fewer and fewer hands..  It has a troubled legacy and history of race that goes back to the settlement and founding of the country.  The criminal justice, education, and health care systems  reveal huge racial disparities.  The death of George Floyd and the causalities of the pandemic are   reminders of this.

America has the lowest voter turnout among its peers, with the electorate stratified by race and income.  Its neo-liberal style election system has reduced democracy down to the right of the few wealthy donors to spend unlimited money to influence elections.  Corporate interests spend billions to lobby, and  the 50-state patchwork of election rules and eligibility requirements have already  disenfranchised millions.  All of this occurred before Donald Trump and perhaps made his election possible.

Donald Trump is a product of an American democracy that was failing before he was elected.  The 2020 elections have brought home those failures,  but even if Biden were to win the problems will not go away because they are more than about Donald Trump.  His policies have exacerbated a challenged democracy and perhaps made them worse, but the root of them is deeper than him and it will take more than a Biden victory or hand wringing sensationalism by election law porn to fix them.

 

Biden versus Trump: Why Presidential Debates Still Matter

 For 60 years US presidential debates have been important political events in American elections.  The

famous 1960 Nixon-Kennedy debate ushered in the television age of US politics.  While many thought Nixon won the debate on content, Kennedy’s appearance played well on television and some claim it was decisive in his victory.  Over time, the debates are heavily watched by the American public, and they have produced memorable lines or scenes that probably affected the election. More often than not it is the one-line, the gotcha statement, or even imagery that define the debate and perhaps affect the outcome of the election.

              In 1976 in the debate between Gerald Ford and Jimmy Carter, the former declaring Poland to be a free country was damaging to his candidacy making it look as if he were naive or not ready to be president.

            In 1980 Ronald Reagan asking the American public if it was better off now than four years ago helped close the deal against Jimmy Carter by reminding people about the dismal   economic state of the economy.

            In 1992 George H.W. Bush’s inability to describe how the problems in the economy personally affected him and then looking at his watch in the middle of the debate painted the picture of someone out of touch with the American public and the average person.

            In 2000 Al Gore’s repeated sighs in his debate with George Bush appeared to give the later advantage, or at least sympathy, in the debate.

            And in 2016 no one can forget the imagery of Donald Trump hovering over Hillary Clinton like a stalker.

            It is impossible to prove that any one of the moments changed the trajectory of the presidential election, but they stand out as images that viewers took away and considered as they voted.  Some many claim US presidential debates are out of date, but data on viewership questions that. Nonetheless, these debates are still heavily watched, with the September 26, 2016 Clinton-Trump the most heavily watched in history.  Presidential debates are media events, great for television news ratings, but still critical for candidates.  The same will be true for the three Joe Biden-Donald Trump debates.  Their first debate may be even more watched than the Clinton-Trump one, and potentially decisive for the race.

            The stakes for the first debate are high.  While polls suggest Biden has a strong lead in the popular vote, the electoral college numbers in the swing states are much closer despite claims by some that Biden has a nearly 80% chance of winning the presidency based on current polling. The debate is taking place during a pandemic, with a weakened economy, days after Supreme Court Justice Ruth Bader Ginsburg’s death and the president’s controversial rushed nomination to replace her by election day, contrary to what public opinion says.

            The debate is also taking place when early voting across many states is taking place, thereby  suggesting that some voters have already decided and cast votes and perhaps the debate does not matter.  Or perhaps the debate will be the final decisive bit of information that forms a decision for voters.  Or perhaps given how polarized the American public is, the debate will not change anyone’s mind because all minds are made up and the only issue is whether someone will vote.

            What will Trump and Biden do in the debate?

            Trump will try to put Biden’s age and character on trial much like he did with Clinton in 2016.  Trump will  try to move the debate away from the pandemic where polls suggest he is not  seen as doing a good job.  Trump will talk to  his base about  the Supreme Court replacement.  He will tie Biden to Black Lives Matters and to violence and rioting and defund the police. He will do his best to motivate even more his base which is already more excited to vote for him than Democrats are to vote for Biden.  He will also hope that he can convince college-educated women  not to vote for Biden.  Trump is not looking to win over these women—he just wants them not to vote  for Biden, much like what happened in 2016 with Clinton.

            Biden needs first to prove he is up for the job.  He did this in part in his presidential nomination acceptance speech but he needs to do it again.  Biden needs to interject some excitement into his boring and lackluster campaign. He needs to excite his base which is less enthusiastic  about him than it is anti-trump.  He also needs to move swing voters to his side.

            Biden will attack Trump’s handling of the pandemic.  He will attack Trump on the economy, health care, and packing the Supreme Court in ways that threat women’s reproductive rights.    He needs to make the case against Trump, prove that he is fit for the job, and generate the excitement among a handful of swing voters in a few swing states  to put him over the electoral college top.

            Even if America is polarized and there are few minds to sway, this debate is critical and  one both candidates need  to think about are defining images or lines that could determine the election.

My Correspondence with RBG

 Many will have a personal story of how Ruth Bader Ginsburg touched their lives.  Mine is

correspondence with the Justice many years ago where she revealed the human and humorous aspect of whom she was.

Back in the 1990s I was teaching constitutional law at the University of Wisconsin.  One day while discussing oral arguments in a case a student raised her hand and ask: “How long does it take for the Supreme Court to decide a case and issue an opinion once oral arguments are completed and are some justices faster at opinion writing than others?”

I looked at her and said those were good questions.  I did not know the answer but I would do some research and figure it out.

It happened that at that time in 1997 there had been no turnout on the Supreme Court for several years and that what I could do is a three-year study of Court opinions.  I would look at all cases scheduled for oral arguments, note the dates for orals, and then the dates for when they were decided and who wrote the majority opinion.  I had no idea what I would find.

When I completed my research of opinion writing for the 1995, 1996, and 1997 Supreme Court terms I found that Ruth Bader Ginsburg was by far the fastest Justice in terms of turning around an opinion, even ahead of the second fastest Justice Sandra Day O’Connor by more than a week. As I described it then, she won the “triple crown” as the fastest Justice each term and overall she was the “top gun” on the Supreme Court.

I eventually published the article entitled  “Justice Delayed, Justice Denied”: The Fastest Gun in the East (Or at Least on the Supreme Court), 16 Constitutional Commentary 213 (1999).

Simply out of courtesy I mailed a copy to Justice Ginsburg, not expecting to hear back from her.  But to my surprise I received a delightful letter from her thanking me for the article.  But more important, in her letter to me she told me the article made her day.  She told me that her daughter (who was featured in the movie (On the basis of Sex) and her granddaughter often complained that she was the slowest or pokiest eater and person they knew.  Justice Ginsburg then said she now had something to lord over them.  I imagined every time they complained to her that she was moving too slowly she told them that there was a professor from Minnesota who proved she was the fastest Justice on the Court.

The letter went on also to say nicely that other Justices were often busy reviewing draft opinions and that did not mean they were tardy or slow.  Ginsburg was gracious in victory, even with compliments.

The letter from Justice Ginsburg is framed in my Hamline office.  Over the years I think about how precious it was for her to write me.  I also thought of her just hours before she passed away on September 18, 2020.  I was teaching a CLE (continuing legal education) class for the Hennepin County Law Library in Minneapolis.  It was a CLE on highlights from last term’s Supreme Court term.  She issued the fastest opinion on the Court this pasted term–still proof that as she aged and became ill she was still the fastest Justice on the Court.

The Ethics of Lies: The Case of Donald Trump and Bob Woodward

 If Bob Woodward is correct in his new book Rage, President Trump lied to the American public

regarding the threat of the coronavirus.  He did that to avert panic.   Similarly, for months Woodward apparently knew Trump was lying but said nothing.  Both got it wrong ethically. No matter how noble or well-meaning, it is never appropriate for government officials to lie in the name of the public interest. Similarly, it is ethically wrong for journalists to withhold from the public information for a story when revealing it could have saved lives.

Lying is considered wrong, even children know this.   Often withholding information is as bad as lying.  Yet culturally some think  lies to children, the ill, or vulnerable are deemed okay to protect them. At one time it was acceptable to lie to dying patients so as not discourage them, but that is no longer a permissible medical ethics practice.  Despite a general cultural admonition to tell the truth, we create many exceptions to that rule.

Do these exceptions extend to public officials and journalists?   Should elected officials be allowed to lie to the public during the Covid-19 pandemic to shield them from bad news, prevent panic, or encourage them and make them feel better?

“You can't handle the truth” is the most famous line from the 1992 movie A Few Good Men.  Lying for the public good is premised upon this notion. There are several problems with arguing that lying to the public is ethically permissible, even for  altruistic reasons.

One, the correctness of lying is justified is left up to public officials and not the people to decide.  How do we know they are making the right decisions about what the public can bear if the latter lacks the information to make a judgement on what is right or wrong?

Two, how do we know the public official is lying or withholding information for the right reasons or motives?  It is easy for an official to say that my motives are well-meaning, but is that always the case?  Might not the basis for withholding information be to hide mistakes, avoid accountability, or simply further one’s own electoral or political interests? This is possibly what Trump did.  Letting public officials decide on the rectitude of their lies is a form of conflict of interest, letting them be the final judge of whether they are acting in the public good or abusing their position.

Three, once a public official has lied, they have lost all of their credibility.    In the future, how can we trust them? In part the erosion of public confidence and legitimacy of government stems from questionable veracity.

Four, lies might put more people at risk than telling the truth. People act in reliance on information they receive from public officials.  Giving false or misleading information may force people into making choices or assessing situations that put them at more risk than would telling the truth.

Five, in a free society the public is entitled to the truth and adults need and deserve correct information to hold the government accountable and make the appropriate decisions.  Lying for the public good treats adults like children, asserting they and not adults know what is in their own best interest. What Trump did was wrong–he lied to protect himself and used protecting the public as a pretext.  

But what about Woodward?  He did not lie but withheld critical information to produce a story and sell a book for personal profit.  That is just as bad as what Trump did.  Journalists are in the business of revealing not concealing information and Woodward violated that rule.  Moreover, journalists do not have a right to withhold information that could save lives. Medical doctors, including psychiatrists, often have a mandatory duty to break patient confidentiality if they have information that could protect the public.  Yes the First Amendment protects the press.  But when a journalist such as Bob Woodward gathers critical information such as he did and refuses to disclose so that he can sell a book for profit that is not about freedom of the press but personal profit at the expense of the public.  What he did in withholding information is as bad as what Trump did in lying.

But there is something more deeply wrong with Woodward’s Rage–it is a great journalist living on the afterburn.  By that, the last few exposes Woodward has written on presidents have been devoid of insight and perspective.  The 2018 book Fear, also on the Trump presidency, told us nothing we did not know about the Trump presidency then.  The same is mostly true of Rage.  It is just another what I call Trump porn book that is written to enrage audiences and make money.  Reading excerpts from Rage I walk away from it thinking that had a different journalist written it it would not get this attention, especially if this were an unknown one.  The book cuts corners, reports on facts, and fails to reveal things that raise questions about personal and journalistic ethics.  This is a Washington, D.C. insider book that appeals to other insiders but fails to do much to advance anything except to enlarge the criticisms about the media.