Saturday, November 13, 2021

Rent Control in Saint Paul: Score Melvin Carter 2, City Council 0

 

Yet again Mayor Melvin Carter has outplayed City Council in his posturing on the recently adopted rent control  ordinance.  No matter what the Council does they look like losers and the Mayor walks away the political winner.

            Were this the first time Council was outmaneuvered it would be  shame on Carter.  But it is the second time this year Council played it wrong so shame on it.

            Earlier this year City Council  affirmed a decision by the Planning Commission to deny a permit to Alatus to develop market-rate housing on the Wilder property located at Lexington and Grand. Its decision was quasi-judicial and under most readings of Minnesota law, it was not subject to a mayoral veto.  Mayor Carter then asked the Council to memorialize the decision in a formal resolution which the mayor then vetoed (as he is allowed to do under the law).  Carter was able to turn an action by Council over which he had questionable authority to override into one which he did have authority to act.   Lacking the votes to override the veto or the will or resources to legally challenge Carter, Council gave the mayor a political victory.  Carter could argue he was championing housing and his veto sent a signal to developers during the election that he was on their side and presumably open to taking their money (which he had already done from individuals at Alatus and Wilder).  He comes out looking good, Council inept.

            Enter rent control in Saint Paul.

            Several months ago, supporters of rent control in Saint Paul secured enough signatures to place on the ballot on November 3, 2021, a proposed rent control ordinance.  It qualified for the ballot on or around June 15, 2021—nearly five months before election day.  Council knew, or should have known, it was on the ballot.   How could they not know?  They had ample opportunity to study it.  Any reasonably prudent Council would have taken some time to ask the “What if?” question.  By that, Council should have asked what if the voters approve rent control, what’s next?  When would it take effect?  How will it be enforced?  Who will enforce it?  How much money and what resources will be needed?  All these are questions the Council should have considered  but there is no indication they did, even though one could have predicted that the rent control proposal might be popular and pass.

            Enter Mayor Carter.  In October, merely a few weeks before the election, Carter announces he will vote yes on rent control but then seek to amend the proposal to exempt new construction, despite the fact that a legal opinion by the City attorney suggested that the ballot proposition probably could not be altered for at least one year under local law.  Both moves by Carter were politically smart.  Carter aligns himself as a populist  and makes it looks like he cares about renters by endorsing the proposal, thereby helping him in his re-election bid, while also sending a signal to developers he is on their side (and of course open to their political donations and support).

            Rent control passes and City Council is shocked.  It is not ready for it.  It has lots of questions—many of which it was negligent not to consider during the previous five months when  they knew it had qualified for the ballot and it could pass.  As confusion mounts over the rent  control measure, Mayor Carter is again asking Council to exempt new construction, contending that the new ordinance does not specifically refer to it.  Council has again been outmaneuvered.

            By asking Council to change the ordinance Carter has placed them in a position of doing something illegal (change the law) and run a court challenge from supporters.  Additionally, if they change the law they raise the possibility of encouraging the rath of voters who supported it when the Council members are up for re-election in 2023.  Do nothing to exempt new construction and  if developers stick to their promise to halt new projects, it is City Council that is at fault for any economic damage to Saint Paul.  Council loses no matter what.

            Carter comes out in favor of rent control and then asks to amend it.  He wins as an apparent populist by supporting it.  His call to amend it will be forgotten by most of the voters but remembered by developers.  He can tell them he is on their side and that it is the terrible City Council that failed to act if they do not vote to exempt it.  If Council does act  to exempt he then gets to blame them  for upending the will of the voters. Carter gets to be populist and a friend to developers at the same time.  Effectively, Carter has shifted the blame to the City Council while he comes out of this politically looking good.

 

Tuesday, October 19, 2021

Minnesota Governor Tim Walz’s Should be Nervous–His Political Fate is Beyond his Control

 Minnesota DFL (Democratic Party) Governor Tim Walz just declared he is running for re-election.  He

should worry.  There is a serious chance he could lose. Minnesota Democrats could also get routed in the 2022 elections.  The unfortunate part for Walz is that he may not be able to do anything to save his campaign. The factors that will determine his fate may largely be sealed and beyond his control.

Walz is in a terrible place 13 months away from the 2022 elections.  Recent polls place his approval rating at below 50%–never a place that an incumbent wants to be.  But it only gets worse.

Walz is in a purely defense mode–also a place an incumbent never wants to be.  A few months ago he could say that his pandemic policies were working and that the state economy was thriving.  No more.  Minnesota is seventh in the country among states with new covid infections and hospitalizations are up to near peak levels. Labor force participation rates are at levels as low as during the peak of the pandemic in 2020.  Supply chain problems and worker shortages are threatening the State’s full economic recovery from the pandemic.  The public has given up on mask mandates and social distancing, and vaccinations are slowing. As cold weather and winter kicks in it is possible for another spike in the pandemic.  And the governor gave away much of his emergency powers last spring to settle the budget.  He has lost the economy and the pandemic as issues to run on.  He has to defend himself.  He lacks a narrative for 2022.

Walz also has a crime problem, much of it not of his doing.  Minneapolis and Saint Paul are seeing record spikes in homicides.  While that is occurring many in Minneapolis want to vote to cut police funding via a ballot initiative.  Mayor Carter in Saint Paul looks hapless regarding what to do after 14 shot and one dead in a bar.  Saint Paul and Ramsey County want to move away from criminal to administrative fines for some infractions.  Ramsey County Attorney John Choi is pushing back against prosecution of some minor offenses.   Ramsey County Commissioners hate Sheriff  Bob Fletcher and have cut his budget.  Democrats look like they are anti-police and soft on crime.  Republicans are tagging Walz and Democrats as the party against law and order.  When people feel insecure, this is not a place to be.

Walz knows crime is a problem for him.  He also knows the Minneapolis police reform proposal is bad politics for the Democrats.  No matter what the ballot initiative actually says, in June 2020 nine  Minneapolis City Council members stood in a park and called for defunding the police. That is what everyone thinks this ballot measure is about, or at least it has been tagged as that.  Winning politics in Minneapolis is losing politics statewide.  Minneapolis is not  the political center of the state.  Working class whites without a college degree are the largest voting bloc in the state. They are Trump people.  They are the Iron Range now, and it is unlikely Walz or Democrats can win this part of the state or rural Minnesota  anymore.  They need big majorities in the Twin Cities, but that may not happen in 2022.

The police reform measure is not even certain to pass in Minneapolis where polls suggest it is unpopular and perhaps becoming less so as the body count increases. If not popular there, imagine how it is viewed statewide and especially in the suburbs, and especially among suburban women in places like Lakeville whom and where the Democrats must win.  Walz, his Lieutenant Governor Peggy Flanagan, Senators Amy Klobuchar and Tina Smith, and Congressperson Angie Craig know the police reform measure is bad politics for them, and probably for all Democrats across the state.  Walz is on the defense with crime and police reform.

Walz is also caught in the middle of his own party which is not united. After George Floyd’s murder, progressives in the party wanted him to take a stronger line on reforming police.  He could not deliver on the legislation they wanted.  Progressives are simply not as enthusiastic for him as they were four years ago.  Conversely, his advocacy for this reforms alienates him from more centrist Democrats and independents–largely those in the suburbs which he has to win.  His coalition is fragmented.

Nationally, Walz is running for reelection when Democratic President Joe Biden has below 50% approval ratings.  With the exception of 2002 (post 9/11), no president has seen his party gain congressional seats in a first term re-election.  Odds are against Democrats holding the US House, it will also be difficult to hold the US Senate.  Walz could be a victim of an unpopular president also facing a divided party and a stalled political agenda.  Democrats are not excited going into 2022, Republicans are motivated.  They smell victory.

Yes, a lot can happen in thirteen months.  Walz could run a good campaign, Republicans could pick bad candidates and have a bad strategy.  Yet right now if I were Walz and the DFL I would be very worried that he could lose, that the Democrats lose the State House of Representatives, and that they are unlikely to take back the State Senate.  This is going to be a more difficult gubernatorial camapaign than many think, especially those located in the Twin Cities political bubble.

Thursday, August 19, 2021

Why Biden and Congress can mandate masks if governors refuse to act

 This column originally appeared in The Hill.


With a rising number of infections from the Delta variant across the country, in states such as Florida and Texas where governors have refused to act to protect their populations, can President Biden and the federal government mandate masks or take other actions? The traditional answer from constitutional lawyers is no, and the Supreme Court under Chief Justice John Roberts has made federal action more difficult. But there is one legal option: declare the coronavirus an interference with interstate commerce, allowing the federal government to act.

 

The United States is a country of divided authority between states and the national government.  In many areas, states have far more power than the federal government. “Police power” is the authority to act to protect the health, safety, welfare and morals of the people, the basis of state power to pass criminal laws, housing codes, environmental laws, and even public health measures. Over time, the Supreme Court has upheld broad, inherent authority of states to promote public health, including recent mandatory quarantines and vaccination laws.

 

The United States government lacks police power. Its powers are limited to the text of the Constitution or what is necessary and proper to execute its explicit powers. Without police power, the national government has significantly less authority over many aspects of our lives.  However, Congress has used Article I, Section 8, Clause 3 of the Constitution — the Commerce Clause — to regulate measures that affect interstate commerce. It also has used Article I, Section 8, Clause 1 — the authority to tax and spend for the general welfare — as a tool to induce parties to act under threat of a financial penalty.

 

There is a long Supreme Court history surrounding Congress’s use of the Commerce and Tax clauses as tools of regulation. Yet the simple answer is that, together, they have allowed the national government to prescribe criminal and environmental laws, as well as workplace conditions, and to regulate the sale and distribution of drugs and food products. In upholding the constitutionality of the 1964 Civil Rights Act, for example, the court ruled that decisions by businesses to refuse to serve people of color interfered with interstate commerce. Together, these two clauses have given the national government broad power to act.

 

Yet, these clauses have limits. The Supreme Court has said that, generally, the national government cannot order or, in its words, “commandeer” states to act because of Tenth Amendment or federalism concerns. It cannot tell states directly to lower highway speed limits, for example, or to raise age limits for the consumption of alcohol, or lower blood-alcohol levels for determining when someone is driving while intoxicated. It can, however, offer financial inducements to encourage states to do all this — if the incentives are not coercive.

 

What all this means is that the president and federal government historically have lacked broad public health authority to act and to tell states they must do the same. The Supreme Court compounded this problem in 2012 when it ruled in National Federation of Independent Business v. Sebelius on the constitutionality of the Affordable Care Act. The court decided that Congress lacked authority under the Commerce Clause to mandate individuals to carry health insurance, because not being insured did not interfere with interstate commerce. 

 

The court did uphold the individual insurance mandate under the Tax Clause by arguing that individuals were free to not get insurance, but they then would have to face a tax. The court struck down the part of ObamaCare encouraging states to expand Medicaid eligibility, ruling that the combination of incentives and threats were coercive and violated the Tenth Amendment.

 

Americans should rue this decision. It hampered the expansion of health care coverage and now crimps the ability of the national government to respond to the coronavirus pandemic. Roberts Court conservatives have clipped the wings of governors in California and New York to restrict gatherings at religious institutions, arguing it violates the Free Exercise of Religion. This is a court simply out of touch with realities associated with the coronavirus and the need for strict public health measures. The court’s decisions enable irresponsible behavior by governors who refuse to act during a public health crisis.

 

However, it is indisputable that the pandemic has wrought significant impact on the U.S. economy. We have nearly 18 months of proof that the pandemic impacts interstate commerce. Decisions to not wear masks or get vaccinated can impact interstate commerce, just as much as the decision of a business not to serve people of color was the basis for upholding civil rights laws because those decisions impacted interstate commerce.

 

Not wearing a mask or getting a vaccine arguably affects others more than not getting insurance, and therefore it affects interstate commerce. Given the reality of how COVID-19 is impacting interstate commerce, President Biden and Congress have a good-faith argument that they have the authority to step in and act if governors choose not to.  

Monday, July 12, 2021

The Lesson of Afghanistan is the Lesson of Vietnam We Forgot

 

            Philosopher Georg Hegel declared the only lesson of history is that we do not learn from history.


As the US prepares for the final pullout from Afghanistan and what will soon follow as the fall of the country to the Taliban an entire generation of us wonder if this is not Deja vu all over again and that what we thought we had learned from the Vietnam War proved to be a fleeting lesson.                         For those of my generation who grew up during or served in the Vietnam War a thousand images cross our mind.  A naked girl scurrying away from Napalm, the execution of Nguy n Văn Lém, American flags draped on caskets in rows,  a woman next to a dead body at Kent State University. But for many it is helicopters evacuating the US embassy in Saigon in 1975 as the city and South Vietnam fell to the Vietcong.  The domino we fought so hard to prevent from falling, costing America 58,200 lost military lives hundreds of thousands wounded, and tens of billions of dollars, fell, nonetheless.

            In college we read Francis FitzGerald’s Fire in the Lake  and supposedly learned that we never were going to win the Vietnam War with guns alone.  Napalming a nation to death was not going to win over the hearts and minds of a people from a different culture we never understood.  David Halberstram’s The Best and the Brightest pointed to the arrogance of the Kennedy Administration in failing to understand that Vietnam was more about colonial independence than it was about communism and Cold War rivalry. And the Pentagon Papers documented the mistakes, misinformation, and lies surrounding the US involvement there, with the realization we could not win, no matter what the North Vietnamese body count was that week as announced by Secretary of Defense Robert McNamara.  We stayed up late at night after watching Apocalypse Now, haunted by Richard Wagner’s Ride Of The Valkyries accompanying helicopters at dawn attacking a village, or the appearance of Joseph Conrad’s Heart of Darkness in a scene after Captain Willard travels up the Nung River enroute to assignment to kill Captain Kurtz.  The message some of us took from the movie and War was that it was a seduction into evil—we as a country turned into what we most despised.US

            Supposedly we learned something from the Vietnam War about the futility of starting a battle with no clear objectives or end game.  We supposedly learned that brute force did not prevail, the need to align military power with soft power and our national interests, and that we needed to understand other cultures and history if we wished to be more successful in our foreign policy goals.  Yet by 1980 Ronald Reagan declared Vietnam a “noble cause,” suggesting memories were short, hubris tall.

            While General Colin Powell’s doctrine sought to reteach the lessons of Vietnam as we prepared for the first Gulf War in 1900-1991, after the 9/11 terrorist attacks in 2001.  Merely seven days after 9/11 Congress issues the Authorization to Use Military Force, giving President Bush  as much carte blanche authority to use military force against the Taliban and Afghanistan as did the Gulf of Tonkin did for Lyndon Johnson.  We sent in the Marines and bombers and took Kabul quickly.  Soon after that lies about weapons of mass destruction took us into Iraq, and soon we were in Bagdad with another resolution and capitulation to presidential lies.   In both cases America reacted reflexively with military solutions, with no game plans for goals and objectives, what constituted victory, and no idea about the culture and people of these countries.  We repeated the arrogance of Vietnam, thinking somehow we could turn them into western democracies, and make those people like us.  All while bombing their villages and killing their people.

            Now as America is ready to leave Afghanistan after 20 years and the media pundits screech that we are abandoning our allies and simply giving up as cowards, these reflections miss the deeper meaning of this war.  We should have never been there to start with.  We made the wrong choices in 2001, and like Vietnam even after we knew it was a lost cost we stayed on, hoping that one more military surge would be the “light at the end of the tunnel” that would finally win the war.  I have no idea what we should do, but I do know that we should have learned from Vietnam that what we did in 2001 and are doing now is wrong and that it was never going to work.

            To appease critics Biden has said that we will evacuate those in Afghanistan who assisted us.  Already I can see the helicopters at the US embassy in Kabul.

            Karl Marx once declared: Hegel remarks somewhere that all great, world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.”  Vietnam was the tragedy, Afghanistan the farce.

Tuesday, June 29, 2021

Review of Amy Klobuchar's Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age

Note:  This is my review of Senator Amy Klobuchar's new book Antitrust, that appeared in the New


York Journal of Books.


 Bigger is not better, at least when it comes to corporate power and economic concentration. This is the thesis of Minnesota Senator Amy Klobuchar whose book on antitrust law is published in concert with US Senate efforts to update the current laws on this subject, of which she is the lead author.


Business concentration and anticompetitive behavior aimed at hurting consumers or squashing rivals became a major problem in the US in the late 19th and early 20th centuries. Here the rise of what were called trusts emerged, dominating markets ranging from steel, lumber railroads, sugar, gas and fuel, among others. These different economic sectors or markets came to be dominated by one or a handful of businesses, with the ability to set prices in a way to aggrandize their market position.


Classic books such as Ida Tarbell’s 1904 The History of Standard Oil Company or Upton Sinclair’s 1906 The Jungle were classic muckraker exposés chronicling the abuse of unregulated monopolies. Their books came out in the middle of the Progressive Era of American history where politicians ranging from Theodore Roosevelt to Woodrow Wilson called for the busting up of the trusts in the interests of preserving market capitalism, free enterprise, and mom and pop businesses.


Congress and the courts responded. In 1890 the Sherman Antitrust Act was adopted, subsequently followed by the 1914 Clayton Antitrust Act. These two Acts, along with a later 1936 Robinson-Patman Act and 1950 Celler-Kefauver Act were meant to define and prohibit anti-competitive economic activities including price discrimination, market concentration, anticompetitive mergers and acquisitions, and other behavior deemed to hurt consumers, rivals, and economic competition. Big was deemed bad when it came to economic concentration, and the framework of antitrust law was a powerful tool to thwart undesirable behavior. Major successes include the breaking up of big oil (Standard Oil), AT&T’s telephone monopoly, and American Tobacco.


But somewhere along the way antitrust law lost its way, and this is part of the subject of Klobuchar’s book. The senator tells a great story on the rise of trusts and the adoption of this legislation. She also recounts the history of congressional and judicial responses to monopolies. But her story is one that talks of the undermining of antitrust law.


It was Robert Bork’s 1978 The Antitrust Paradox that was responsible for a rethinking of the law. He argued that not all economic mergers and combinations were bad, not all price setting wrong; one had to judge antitrust law in terms of the economic efficiencies it produced and the benefits and conveniences it produced for consumers. Bork’s arguments, along with a Chicago School of Economics that mythologized free markets and a neo-liberal turn in economic policy and government policy under presidents Ronald Reagan and Bill Clinton, effectively killed off serious enforcement of antitrust law. The Supreme Court, under Justice Antonin Scalia and other conservatives, read competition out of antitrust law.


A second theme of Klobuchar’s book is telling the story of the consequences of such actions. We see media concentration in a few news and entertainment businesses. Facebook, Twitter, Amazon, and Walmart dominate their markets, crushing rivals and putting rivals out of business across the nation. Walmart and Amazon alone had even before the Covid-19 pandemic used their market muscle to destroy small businesses and shops across America. Google dominates the information market. Apple is a trillion-dollar business, and effectively we are again back to only a handful of businesses that dominate the telecommunications and energy markets. None of this good for the consumer, economic competition, or even American democracy.


The third theme of this book is the argument that it is time to reinvigorate antitrust law for the 21st century. Klobuchar first proposes we abandon the term “antitrust” as antiquated, instead preferring the phrase competitive law as used in Europe. Her book recommends 25 policy recommendations or steps that can be taken to reinvigorate competition law. The list includes hiring more staff to enforce current and new competition laws, make it more difficult to do anticompetitive mergers, shift burdens of proof to show anticompetitive behavior, change rules on price fixing and market tie-ins, and reverse many of the changes court opinions and federal regulatory agencies have imposed over 40 years that have weakened current laws. She also wants to take on tech companies.


There is a lot to like in this book. Klobuchar consulted with many experts in the research and drafting of the book. The history of antitrust or competition law is excellent, her telling the story of how the law was undone is also good, and her proposals reasonable. On the downside, the book at times reads like a politician’s political speech, where first person singular (“I did this and that or I introduced this bill”) takes away from the broader narrative and policy prescriptions.


One wonders though whether Klobuchar has gone far enough. In some sense her ideas are retro: take the law back to where it once was but update it . . . and go after Big Tech. We all want to protect the consumer and help small businesses, but a new wave of breakups and discouraging mergers might run the same fate as the first time these strategies were used, eventually resulting in their being undone by the realities of a new global capitalism able to work beyond nations state borders. The focus solely on the economic aspects of bigness is good, but unless one also tackles the political aspects and how it threatens democracy, the efforts to corral anticompetitive behavior may fail.

Friday, May 21, 2021

The Minnesota Legislative Process: Still Crazy After All These Years

 Watching the Minnesota budget process is like living in Groundhog Day.

The 2021 regular session of the Minnesota Legislature limps to an end without a budget deal. No news here, it was entirely predictable. Not since 1999–the first year of Jesse Ventura’s term as governor–has a budget session of the Minnesota Legislature ended on time without a special session, partial governmental shutdown, or a controversial ending such as in 2009 when Pawlenty used his unallotment power (subsequently declared illegal by the Minnesota Supreme Court) to balance the budget.

 I first wrote this blog on May 21, 2011–exactly ten years ago.  Nothing has changed in a decade.

 What has emerged is the New Normal for Minnesota politics. The New Normal is that the completion of the budget does not occur by the constitutionally-mandated deadline in May but instead July 1–the commencement of the new budget year. That seems to be the new deadline. But even then, that date, like October 1, for the federal government, appears more suggestive than drop dead. A threatened partial shutdown in 2003 and then a real one in 2007 and 2011 too eased the stigma of missing July 1, in Minnesota.

 Why the New Normal?

 The question becomes why? Why has the New Normal emerged?   Nothing has changed from a decade ago when I first wrote about the New Normal, but in ten years it has only grew worse.

Why does it seem impossible to reach budget agreement? One answer is divided government, yet even back to the days when Perpich was governor and the DFL controlled the legislature there were special sessions to address the budget such as in 1985. Under Carlson and then Ventura they became more frequent and then under Pawlenty and Dayton they emerged as the new normal.   With Walz, the same pattern. No; divided government is only a partial answer.

 There are two causes explaining the rise of the new normal. The first is a growing ideological divide over the nature of government. The second is structural, questioning the efficacy of the current budget process.

 Why Government?

The governor and the split legislature are as far apart today as they were in January regarding all the essentials over the budget.   It is about dollar and taxes yes, but it is also about other fundamental divides in America, of which Minnesota is a perfect microcosm as the only partisanly divided legislature in the nation where one party holds control of one chamber, another party control of the other.

At the heart of the dispute is a basic difference in their rival views of the government versus the market. The GOP generally seems to see government and taxes as bad, an intruding upon the wisdom and functioning of markets. Let markets act and they will generate jobs prosperity and solve the basic problems of society.

For Walz and the Democrats, while market solutions and the private sector are the preferred places to produce jobs and make decisions, they recognize markets fail. Markets fail to address needs of equity. They produce inequities in wealth and income distribution, they fail to address core problems of education funding and disparities, they fail to address problems in infrastructure investment.

No, it does not look like the GOP wants no government. Many still find it necessary to hire police and enforce basic laws, and apparently to enact laws to prevent same-sex couples from marrying and women from terminating pregnancies or give tax breaks to the wealthy. The real difference between the GOP and Walz and the DFL is over how much government and what government should do in our society. It is a debate between rivaling views-government versus the market, the individual versus society.

We live in a society new where everything is a partisan divide—yes or no, no in between.  Police reform, facemasks, vaccines, marijuana; you name it, there is a divide an no incentive to compromise.  With there barely 10% of the State House and Senate seats truly swing, most are in firm partisan control of one party and there is no incentive to compromise. Conversely, compromise means facing a primary opponent from the left or right.  One cannot give in—it is a sign of weakness. 

 The debate over “why government” is ideological. Arising simultaneously are two other phenomena aggravating the debate over why government–the triumph of ideology over pragmatism and party polarization.

 Thus, as part of the New Normal is that no negotiations can take place in public.  Dating back at least to Dayton all compromise is behind closed doors, often out of session, involving the governor and chamber leaders.  New Normal means less transparency and open government.

 Combine politically polarized parties with a take no prisoners ideological divide over the role of government and what do you get?

 A Flawed Budget Process

 But the polarization is only one problem. The second is the flawed budget process in Minnesota. I have been arguing this point for nearly 20 years.

 It is a budget process built for the horse and buggy days trying to operate in the 21st century. Government is so much more complex, the budget numbers so much larger, the functions more diverse, that it is perhaps impossible to reach consensus and make decisions between the beginning of January and the State Constitution forbids the legislature to meet in regular session after the first Monday following the third Saturday in May in any year. There simply may not be enough time to do the budget by law.

 But think also how flawed the current budget process is right now. The old governor makes the initial budget. New governor is elected and needs to update it to reflect his priorities and the fiscal forecast in November. The Legislature comes to work in early January and then it waits until late January or so for the governor to release the budget. Then they all wait until late February for the updated fiscal forecast.

 Thus, it is not until late February or March that the work on the budget commences. And even then, there are separate hearings in the House and Senate, forcing conference committees to act. The budget also is really ten separate bills, with spending distinct from taxation, and no real work gets done until there are agreements on the different spending targets for each of the areas such as HHS, K-12, and so on.

 Sound confusing? It is. It is also inefficient. At least two months are wasted at the beginning of every budget cycle waiting for the governor’s budget, the fiscal forecast, and then agreement on budget targets. Now add more wrinkle–budgets are created right after state elections when often many new legislators or constitutional officers are elected. They are green, often learning on the job while creating a new budget. In a distant past when life and budgets were less complicated (and smaller), perhaps it was possible to do all this with a part-time citizen legislature. But those days have passed. A new budget process is needed, with new time lines and ways to move the work along.

 A decade or more algo I proposed solutions to the process.  Change the timing of events.  Move the budget to the second year of the session to allow new legislators to learn their job.  Adopt as they have in Wisconsin an automatic continuing resolution to extend the current budget into the next fiscal year to prevent shutdowns. There are other reform ideas too, but no will to change.

 Someone once said that the definition of insanity is doing the same thing repeatedly and expecting different results.  Politically this is what we are doing in Minnesota for more than 20 years.  If this is not politically insane or crazy, I do not know what is.

Saturday, May 15, 2021

The states are not friends of voting rights in America

 Todays blog originally appeared in The Hill.


The story of voting rights in America yields two truths. First, even though since 1787 there has been an overall expansion of voting rights en route to universal adult franchise, it also has been a partisan battle often featuring efforts to disenfranchise. Second, left to their own devices, states are not the drivers of expanded voting rights. It has happened only when the national government has entered to guarantee, expand and protect rights. 

This is why Congress needs to enact federal legislation to federalize voting rights and enable national standards and enforcement.

America may be the world’s first experiment with popular government, but its record from the start in recognizing the right to vote is poor. At the Constitutional Convention of 1787, disputes over slavery, representation and the selection of the president left the issue of voting rights out of the Constitution and in the hands of the states to decide. In 1787, state laws limited voting rights to white, Protestant males with property who were at least age 21. 

A few states prior to the Civil War expanded voting rights on their own. They did so by dropping property qualifications in lieu of poll taxes to ensure that only those with an economic stake in the community could vote. Yet, serious expansion of voting rights did not come until after the Civil War. Republican Party support of the 1866 Civil Rights Act, the 14th Amendment in 1868, the Fifteenth Amendment in 1870, and the deployment of federal troops in the South during Reconstruction led to a dramatic increase in voting rights and representation for the freed males slaves.

But the disputed 1876 election — in which Democrat Samuel Tilden conceded the White House to Republican Rutherford B. Hayes on condition that federal troops be removed from the South — ended Reconstruction and support for voting rights for Black males. It ushered in a nearly century-long “first great disenfranchisement” in American history. This was the era of Jim Crow, in which mostly southern Democratic Party states employed a variety of mechanisms — grandfather laws, poll taxes, literacy tests and felon disenfranchisement laws — as tools to entrench single-party rule and prevent African Americans from voting. States also acted to prevent women, the poor, and young people from voting.

All the major initiatives to expand voting came as a result of federal legislation or action. The 17th Amendment (1913) gave individuals the right to vote for senators. The 19th (1920) and 26th (1971) Amendments banned denial of voting based on sex or age. The 23rd Amendment (1961) gave the District of Columbia electoral votes for president. The 24th Amendment (1964) banned poll taxes. Along with these amendments, the Supreme Court in United States v. Classic (1941) ruled that Article I, Section Two of the Constitution gave individuals a right to vote in federal elections. In Reynolds v. Sims (1864) and Harper v. Virginia Board of Elections (1966), the court located a right to vote in state and local elections in the First and 14th Amendments.  

Most importantly, the adoption of the Voting Rights Act of 1965 brought federal enforcement of voting rights, compelling states to preclear changes in election rules and desist from diluting voting rights. Even the Supreme Court’s cases on reapportionment and enforcement of the “one person, one vote” mandate were a major defense of voting rights. Then the 1993 Motor Voter Act expanded opportunities to register people to vote. All of this legislation and court action shared a common denominator — federal intervention into and protection of voting rights against states hostile toward expanding franchise.

Now we are witnessing efforts in the “second great disenfranchisement” in American history — this time led not by Democrats, but by Republicans. It began in the 1990s with claims that Motor Voter would lead to fraud. Then after the disputed 2000 presidential election in Florida, which resulted in the court’s ruling in Bush v. Gore, Republicans cried voter fraud. They demanded voter identification to stem nearly nonexistent fraud. It degenerated in the past election into the chant of a stolen election, and now there’s a new round of proposed 250 voting restrictions in 43 states, mostly Republican initiated. 

All of this is taking place after the Supreme Court, in 2013 in Shelby County v. Holder, effectively dismantled the Voting Rights Act and hobbled federal enforcement of franchise rights.

The “second great disenfranchisement” is a repeat of the first: Withdraw federal protection of voting rights and free states to restrict. This time it is not poll taxes or literacy tests, but restrictions on early voting, drop boxes and poll locations — different techniques but the same goals, same results.

States may be laboratories of democracy in many ways, but not where it matters most in protecting voting rights. Voting is the most fundamental of all rights, critical to protection of all others. The only way to defend universal franchise and, as former Supreme Court Justice Thurgood Marshall once said, give meaning to the first three words of the Constitution — “We, the People” — is for Congress to enact legislation reasserting a federal role in protecting voting rights.