The Train Wreck of Politics

Politics is like an attractive nuisance.  There are so many reasons why what politicians do annoy us, but nonetheless political junkies remain attracted to the stories in the news.  Yes politics has turned into entertainment and campaigns and elections often  seem like farces, but that should not distract us from the reality that politics and government are important.
Government does matter in terms of what it does and, while we often forget it, government in the US has accomplished a lot and made powerful positive differences in our lives.  Ranging from landing a man on the Moon, fluoridating water to improve dental health, or producing tap water, roads, bridges, and arresting the bad guys and putting out fires, government matters.  Free markets are fine in their place, but they have proved to be incapable of addressing many problems our society confronts. Having said all that as an important reminder to those who see government as bad or evil, there are several stories in the news this week that highlight what many see as the bad side of politics.

Trump: “Have you no sense of decency?”
The witch hunts of the 1950s McCarthy era crashed to a close on June 9, 1954.  After Senator Joe McCarthy during a public hearing made another allegation about someone’s political affiliations,  Joseph Welsh, chief counsel for the US Army retorted: “You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”  Welch’s comments exposed the reckless and cruel attacks of McCarthy as nothing more than shameful rhetoric made for personal political gain.  Maybe Donald Trump has finally had his Welsh moment.
For months there has been a death watch as Trump insulted one group after another.  It has included military POWS, women, Muslims, non-mainline Christians, and now individuals with handicaps.  This latest was mocking a NY Times reporter’s physical handicap.  Till now the comments seemed not to hurt him.  Instead the controversies only gave him media coverage, giving him attention in ways that bullies get attention when they pick on someone.  It may still be the case that Trump’s latest comments will not hurt him long term and that he remains the favorite in the polls among Republicans.  Yet a recent Reuters poll shows a 12% drop in his support among Republicans in the last week.  Is it possible that he has finally reached a point where he has insulted enough Americans that he has crossed the line?  When do you think he will pick on orphans, kick a dog, or spit at someone?
Clearly something has changed.  Check out John Kasich ad where Trump is compared to Hitler.  This is a hard hitting ad that points out how Trump has gone after one group after another just like Hitler (and McCarthy) did.  Surprising that the ad is by a candidate and not a SuperPac.  But it does appear that other candidates are no longer afraid of Trump.

Trump Part II:   @!*&%# Off!
Trump has had a major impact on the Republican presidential race in many ways, including his use of foul language.  The NY Times reports that other GOP candidates are now also swearing on the campaign circuit.  The road to macho must be through the seven words that George Carlin could not say on television (and which Bono got fined for using) but which candidates for president can now freely deploy.  I a waiting for the next Republican debate where Kasich turns to Trump and says “F— off!”  If that happens we are not far from the classic SNL routine where Dan Aykroyd and Jane Curtin do a mock debate, ending with the famous line “Jane you ignorant slut.”

Why we hate politicians
Ann Lenczewski was a well respected member of the Minnesota House of Representative.  She was perhaps the leading expert on tax policy.  Yet she recently announced her resignation to join a law firm to become a lobbyist lobbying the state legislature.  In a recent interview in Politics in Minnesota when asked about the fact that this looks really bad she replied:

“That’s understandable.  If the Legislature would pass a law, which has never happened, and a governor would sign it, that would say you can’t lobby for one or two years, I would follow the law. ...Many former House members have gone on to be lobbyists:...there’s dozens and dozens of them...The House has a rule [against lobbying], but it only applies if you’re a member of the House.”

Her answer is akin to the “if everyone else is doing it, it must be ok.”  Her answer simply rang hollow and showed clear deafness for how bad this looks.  It is even worse to know that for years she was one of the major sponsors of legislation to ban this type of behavior.  I guess at the end of the day it is another story of if you can’t beat them, join them.  Ann is a good person whose statement simply captures the reality of how bad even Minnesota politics is.  No wonder the state earned a D- in its most recent ranking on ethics.

The 2016 Minnesota Election Themes 
It is becoming clear what the 2016 elections themes will be in the battle for the Minnesota House and Senate.  Of course it will be the Senate Office Building but so too look to see Polymet and Black Lives Matters as issues.  So too will be whether to help workers on the Iron Range and Lake Mille Lacs as the governor had wanted.  These are issues that divide not just the two major parties but also the Democrats.
Moreover, while the governor is perfectly correct that something needs to be done to address  the racial disparities in Minnesota, it is not clear that the Democrats and he are building the political coalition in greater Minnesota to accomplish this.  Black Lives Matters may be good copy and a salient issue that could help urban Democrats, but it is not an issue that will help them in the suburbs and greater Minnesota.
Why raise all this?  So far the Republicans in Minnesota seem to be defining a better set of themes and campaign narratives than are the Democrats.  While in a presidential election year DFLers normally do better look at 2016 as a year where it will still be difficult for Democrats to retake the House and the battle for the Senate will be challenging.

The Achievement Gap
Finally, take a look at this sobering article on the state of education and race in America since Brown v. The Board of Education.  The gaps between Blacks and Whites show that race still matters and that perhaps we need to show as much anger about the education gap as we do about the shooting of African-Americans by police officers.
No, the solution is not vouchers or to get rid of public schools as conservatives demand.  There is little evidence that these gimmicks along with charter schools have succeeded.  Simply spending more money on schools is not the answer (although the US does spend less on education as a percentage of its GDP compared to other major countries) in the same way that cutting taxes is not  always the answer. The question is how to spend money–existing and new–to improve education.  The answer lies not just in spending on schools but also in support networks that make it possible to support families, parents, and communities.

Minneapolis, Black Lives Matter, and the Failures of American Urban Policy

            Minneapolis is a microcosm for urban America.  Especially so when it comes to failed urban policy.   The confrontation and controversy between its police and people of color  provide a case study for much of what is wrong in how America responded to the race riots of the 1960s, opting instead to adopt a militaristic approach to urban poverty and racism as opposed to seeing the roots in a lack of economic opportunity and inequality.

            Urban American burned with racism and poverty in the summer of 1967.  Across the country from Newark to Watts race riots gripped America as African-Americans protested discrimination.  Minneapolis was no exception.  In response, President Johnson convened a study of the causes of these riots, asking too for policy recommendations.  The  National Advisory Commission on Civil Disorders, better known as the Kerner Commission, declared that along with frustrated hopes surrounding the unfulfilled promises of the civil rights laws:

White racism is essentially responsible for the explosive mixture which has been

accumulating in our cities since the end of World War II. Among the ingredients of this mixture are:

* Pervasive discrimination and segregation in employment, education and housing, which have resulted in the continuing exclusion of great numbers of Negroes from the benefits of economic progress.

* Black in-migration and white exodus, .which have produced the massive and growing concentrations of impoverished Negroes in our major cities, creating a growing crisis of deteriorating facilities and services and unmet human needs.

* The black ghettos where segregation and poverty converge on the young to destroy

opportunity and enforce failure. Crime, drug addiction, dependency on welfare, and

bitterness and resentment against society in general and white society in particular are the result.

The Kerner Commission called for the enactment of comprehensive and enforceable federal open housing laws, placing low and moderate income housing outside of ghetto areas, and building six million new and existing units of decent housing. Instead of taking this approach that treated urban unrest as one rooted in racism and poverty, the response instead was twofold.  First, the Omnibus Crime Control and Safe Streets Act of 1968 defined the riots as a problem of law and order, ushering in the gradual militarization of policing in urban areas, especially as a result of the Nixon-Reagan war on drugs and then with Bill Clinton treating the crime spike of the 1990s with the placing of 100,000 more police of the streets and increasing prison sentences for many offenders, most of whom happened to be African-American males living in segregated concentrated poverty neighborhoods.

            Second, in 1969 while serving as Nixon’s urban affairs adviser, Daniel Patrick Moynihan sent the President a memo suggesting: “The time may have come when the issue of race could benefit from a period of 'benign neglect.”  Effectively with this memo the second civil rights revolution was coming to an end in America.  The Great Society programs meant to address poverty were scaled back, culminating with Clinton signing a 1996 law reforming welfare.  Race in general came to be ignored as an issue to be addressed with anything more than laws declaring America to be a color-blind society.

            Fifty years later, the failures to responded adequately to the problems the Kerner Commission originally described, and the path that instead was taken, is where America is now, including Minneapolis.  Since 1967 Minneapolis has failed to desegregate is schools and neighborhoods, it has persistent problems of poverty and concentrated poverty, and mayors have repeatedly put downtown  development ahead of promoting economic opportunity in the neighborhoods.  And now one can see how the militarized approach to crime and disorder pits the police against communities of color, precipitating the confrontations in Minneapolis and across the country.

            Black Lives Matters’ demands seek to reset the clock, placing America back in a place similar to where the country was in 1967.   Instead of responding to racism and poverty with bullets and neglect, BLM calls for both demilitarization of policing and social justice.  Whether this time Minneapolis, Minnesota, or the United States will respond correctly is yet to be seen.  And whether the tactics of BLM, which too seem to mimic those  used fifty years ago and which failed to make racism and social justice the core policy issues, will work this time, too are yet to be seen. 

A Day in the Life of Black Minnesota: What Black Lives Matters Minnesota Wants to Say But is Not Being Heard

Do Black lives matter in Minnesota?  Despite being a state with a progressive, tolerant, and egalitarian reputation, the group Black Lives Matter (BLM) has repeatedly demonstrated to highlight the racial disparities and discrimination in Minnesota.  Their demonstrations deserve attention yet it is not so clear that their message is being heard by policy makers and voters.

            A generation ago political scientist Andrew Hacker wrote Two Nations: Black and White, Separate, Hostile, Unequal.  It documented an America divided racially, pointing not just to the housing and educational segregation between Blacks and Whites, but also to how this divide affected the many other ways the two races experience life, including the way they experience the criminal justice system and pop culture.  Blacks and whites live in different worlds, consume different foods, watch different television shows, movies, and music.  They also interact with the government and policy makers in very different ways.  This is true in Minnesota too.

            A range of studies point to the different ways Blacks and Whites live in Minnesota.  For Whites, the economy is generally good, home ownership high, the schools among the best in the country, and the police professional and respectful.  White students in Minnesota have among the best SATs in the country, living up to the myth of Lake Wobegon where all of them are above average.  Unemployment for Whites is among the lowest in the country, incomes among the highest.  Yet for Blacks, it is a tale of two cities; it is another or different Minnesota in which they live.

            Consider first education and housing.  Nationally almost 30 years ago American Apartheid  by Douglas Massey and Nancy Denton  described a nation as segregated as the Jim Crow era. More recently Myron Orfield’s Institute for Metropolitan Opportunity 2015 report “Why are Twin Cities so Segregated” points to a persistent residential and educational segregation  patterns in the seven county metro area.  Blacks live in high or concentrated poverty neighborhoods in Minneapolis or St Paul and in a few inner ring suburbs.  These are areas with high crime, high and persistent unemployment, few services, and weak schools.  Yet there is nothing really new in this report: Twenty years earlier studies by the Institute on Race and Poverty pointed to the same conditions, finding the Twin Cities to be among the most segregated metropolitan areas in the country.  But the power of the Orfield study is documenting how a generation later, despite policies of open enrollment and charter schools, little has changed the educational segregation.  Moreover the report points to a retreat from fair share housing, and the political pressures from the housing and educational community that have exacerbated segregation.

            Now look at education specifically.  Minnesota Department of Education data point to Blacks and other students of color scoring 30 points or more lower on achievement tests compared to whites.  US Department of Education data demonstrates Minnesota near the bottom of the list in on-time high school graduation rates for Blacks, with an overall 67% graduation for Black males (compared to 90% for White Males) according to the 2015 Schott Foundation for Public Education report.  The Black White male graduation gap is one of the highest in the country.  Finally, a 2014 study found Black students ten times more likely to be suspended or expelled from Minneapolis schools than White students.

            Third, look at income and unemployment.  A 2013  Minnesota Advisory Committee to the U.S. Commission on Civil Rights report found the unemployment gap for Blacks to be three times that of Whites.  A 2015 report by the Center for Popular Democracy found the report to be nearly four times, second worst among states in the nation, only behind Wisconsin.  And 2015 US Census data point to Minnesota as having one of the highest Black White gaps in medium family income in the nation.

            Finally, consider how Blacks experience the criminal justice system.  Nationally Nina Moore’s 2015 book The Political Roots of Racial Tracking in American Criminal Justice describes the existence of two criminal justice systems in America–one for Whites and one for Blacks.  The criminal justice system Blacks experience is one where they are more likely to be stopped, detained, searched, shot, and imprisoned than whites.  This is the reality that BLM Minnesota has sought to highlight. Marie Gottschalk’s Caught: The Prison State and the Lockdown of American Politics evidences Minnesota as having the worst Black-White incarceration ratio in the nation. Michael Tonry at the University of Minnesota has reached similar conclusions.

            The picture is not pretty for Blacks in Minnesota.  Blacks and Whites dwell in separate worlds in Minnesota and experience schools, housing, education, the economy, and the criminal justice system differently.  Their worlds are separate and unequal.  This is the sobering message that BLM Minnesota wants to articulate, yet how effective have they been?

            BLM Minnesota takes it tactics from a page in Martin Luther King, Jr.’s “Letter From the  Birmingham Jail.”  There he writes of the power of use of nonviolent direct action to create a ”crisis and establish such a creative tension that a community that has consistently refused to negotiate is forced to confront the issue of discrimination.”  For King, direct action creates a crisis that opens the door to negotiation–it forces White policy makers to act.  This means protests at Mall of America, the State Fair, or seeking to shut down the TC Marathon, with the aiming of forcing a crises and bringing white privilege to the bargaining table.  It’s a great theory, and it worked once, but it is no longer so clear that such a strategy will work.

            For one, so far BLM Minnesota has not brought policy makers to the table. Yes Governor  Dayton and Mayor Coleman have met with them but no policy commitments.  There is also no evidence that state legislators are moving.  Second, as Randall Kennedy’s recent “Lifting as We Climb” essay in Harper’s Magazine suggested, the tactics being used by Black activists today departs dramatically from those 50 or more years ago, and instead of gaining attention of White America, it is alienating them.  The media and public reaction to the State Fair and TC Marathon protests reveal how the BLM protests overshadowed their message.

            But second, Nina Moore points to how even if one reaches policy makers and forces them to the negotiation table, public attitudes and electoral strategies create disincentives for policy makers to dismantle racially discriminatory policies.  Instead, protests such as at the Fair or Marathon reinforce a get tough on crime strategy that only makes matters worse racially.  Needed instead are electoral strategies to change the political incentives.

            Finally, even King’s “Letter From the Birmingham Jail” noted how perhaps the greatest impediment to civil rights reform is the white moderate who says “I agree with you in the goal you seek, but I can’t agree with your methods of direct action.”  It is the white moderate, here the vast majority of white Minnesotans, who pose the biggest challenge to BLM Minnesota.  They are the ones who need to be won over.  It is they who need to pressure the policy makers to negotiate and change, but so far BLM Minnesota has failed to craft a message and set of tactics to sway them.  Instead, arguably they have done little to succeed with them, raising serious doubt that they have even begun to succeed in making the case for why Black lives should matter in Minnesota.

Mall of America v Black Lives Matter: The Difference Between Civil Rights and Free Speech Laws

The Mall of America (MOA) is private property.  So are the other shopping malls in Minnesota.  One may not agree with that legal fact but that is the law in this state.  This means that owners of shopping malls have a right to deny the public access to their property for the purposes of exercising free speech rights but that does not mean they can deny them access on the basis of race.  This distinction seems to be lost in the dispute regarding the trespass prosecution in the “Black Lives Matter” case.  A basic understanding of federal and state constitutional and civil rights law clarifies this issue.
There is no debate that subject to some time, place, and matter restrictions, the public enjoys broad First Amendment expressive rights on public property.  In the proverbial town square the public has a right to criticize the government or make any other political statements it wishes.  The Fourteenth Amendment’s Equal Protection clause guarantees that this right cannot be denied on account of race.
But shopping malls are not town squares.  In Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), the US Supreme Court ruled that there is no First Amendment right to distribute handbills or express political messages in shopping malls.  Malls are private property and the owners may exclude or prevent the public from distributing or expressing their political views their.  However in  Pruneyard Shopping Center v. Robins 447 U.S.  74 (1980) the Supreme Court also recognized that while there is no federal First Amendment right of the public to use malls for political purposes, state constitutions may afford such a right.  That is the case in California.  In New Jersey its Supreme Court in New Jersey Coalition Against War in the Middle East v. J.M.B Realty Corporation, 138 N.J. 326 (1994) ruled that shopping malls had become the “functional equivalent of downtown business districts” and therefore  owners could not interfere with reasonable expression of free speech rights as protected by the state constitution.
The Minnesota Supreme Court did not follow New Jersey when it ruled in State v. Wicklund 589 N.W.2d 793 (1999) that the state constitution did not guarantee the free speech rights of the public at MOA.  It rejected claims that extensive government involvement in the planning and financing  of the MOA made it a public entity and it turned back arguments that the mere holding open of private property to the public for any purpose make it public property.  The Court also rejected the functional equivalent argument of the New Jersey Supreme Court.  The Court may have gotten it wrong then and perhaps conditions in the last 16 years have undermined the validity of that precedent making a new challenge ripe.  But as of last year, Wicklund is still the law.  No one, regardless of race, has free speech rights at MOA.
But just because MOA can limit the public from exercising its free speech rights, it may not exclude individuals on account of race and gender.  The 1964 Civil Rights Act is clear on this matter.  MOA is a public accommodation under federal law and case such as Heart of Atlanta Hotel v. United States, 379 U.S. 241 (1964) are clear that businesses and establishments may not discriminate on account of race.  In Roberts v United States Jaycees, 468 U.S. 609 (1984) the U.S. Supreme Court ruled that even under Minnesota’s anti-discrimination law, many clubs and associations would be barred from banning individuals based on gender and race.  Federal and State law is clear–if the MOA were to decide to ban individuals from their premises based on race they would be acting illegally.
There is thus a difference between federal and state anti-discrimination and free speech law.  This is important because it does not appear that MOA barred Black Lives Matter from protesting because of their race.  If they did then shame on MOA and they ought to be sued for civil rights violations.  Instead, they barred the group because current law did not give Black Lives Matter a right to free speech at MOA.  When the group demonstrated there against the wishes of MOA that was trespass under current law.  Whether they should be prosecuted is a different matter.
But what is critical to understand is the purpose of the Black Lives Matter protest at MOA.  Were they protesting against MOA racist policies, against a State Supreme Court ruling liming free speech rights at the mall, or against Ferguson and racism in general?  Again, Federal and State law make it illegal for MOA to discriminate on account of race.  If that is the allegation, then the protest  of MOA’s policies is powerful and ranks along side of Rosa Parks sitting at the front the bus and therefore Black Lives Matters was within its rights to do.  But if the protest were to challenge current state law about the status of the MOA as a private entity that can restrict free speech rights (such as to protest Ferguson), then this is not an issue really about race but about expressive freedom.  This  is an entirely different issue that really is not about race and unfortunately current law does not support Black Lives Matter.
The Black Lives Matter protest at MOA entwines and confuses issues of race and speech.  Whether we like it or not the law treats civil rights and expressive freedom differently.  Understanding how the law differentiates between the two, along with clarifying the motives and goals of both MOA and Black Lives Matters, is critical to understanding the difficult questions in this case.