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.

Saturday, April 17, 2021

The Gentrification of Midway-Rondo in Saint Paul (and why Mayor Carter’s recent veto is illegal and enabling it).


Saint Paul Mayor Melvin Carter’s veto of the City Council vote to deny the go ahead on the Alatus

housing plan at University and Lexington Avenue was wrong both legally and from a public policy perspective.  In its vote City Council was acting in its quasi-judicial capacity over which the mayor has no veto authority, and in allowing this housing project to go forward the mayor enabled the already rapid gentrification of the Midway corridor to continue.

The Wilder Foundation owns vacant land at the corner of Lexington and University Avenues in Saint Paul.  This is property in the Midway/Rondo neighborhood, and traditionally occupied by people of color.  It is also an area of concentrated poverty based on the 2040 Saint Paul Comprehensive plan.  Yet is located along the central corridor of the light rail line which has rapidly gentrified in the last few years.  

            When the $1 billion light rail investment was made the intent was to encourage significant private investment, which it has, yet that investment has hardly benefited the neighbors.  Once undervalued land has become the target of acquisition and development as traditional neighborhood business have been forced out, selling their property to developers who are turning it into business and housing for more affluent individuals, making the area from Lexington west a de facto suburb for Minneapolis.  The building of the soccer stadium at University and Snelling and the housing plans for the closed shopping center there all point to a development strategy of pushing out the poor and people of color and replacing them with middle class.  This is a textbook case of what gentrification means, with other studies reaching this conclusion.

            The Alatus housing is part of this plan.  Wilder Foundation, which is supposed to care about individuals of modest means, sees a huge profit to be made in selling the land for development.  The Alatus project would site housing not for individuals with median incomes living in the area, but clearly to attract a more middle class or affluent base.  Such housing would be consistent with other development now occurring in the area, but it would not address the needs of the Rondo residents.  It would ignore their needs and place pressures on nearby by property to sell and eventually push gentrification further.  As a result, the Frogtown Neighborhood Association and others opposed the project, urging the Saint Paul Planning Commission to veto it.

            The Planning Commission vote was close, but it did oppose it.  The vote itself was fascinating because leading up to it there were long vacant slots on the Commission that the Mayor had not filled for nearly a year.  When he did do so it was close to the timing of his announcement for reelection and he staffed it with choice DFLers,  which the Frogtown Neighborhood Association opposed, in part, because they wanted their own appointees.  This was a classic DFL intraparty fight over political patronage.

            After the Planning Commission vote Saint Paul City Council held a hearing, affirming the Planning Commission vote, of which Carter then vetoed it claiming the city needs housing of lots of different kinds.  Similar statements were voiced by the three council members who voted in favor of the Alatus housing.  Coincidentally the three members came from golden triangle of the city bordered south by I-94 and east by I-35.  This is the most affluent and white area of Saint Paul.  There is no debate Saint Paul needs more housing, and it would be good to develop more neighborhoods with mixed-income units to break up concentrated poverty.  But there is also an acute need to address a housing shortage and crisis for low to moderate income individuals.  The Alatus proposal mostly fails on these points.

            Mayor Carter has no legal authority to veto the Council action.  Years ago, I wrote an article contrasting what is called quasi-legislative and quasi-legislative hearings in Minnesota law.  In many cases where city councils act, they are operating in their legislative or quasi-legislative rolls.  This is the case when passing bills, raising taxes, doing a budget.  All this, under state law and in Saint Paul is subject to mayoral veto.  But in some cases, city councils are acting in a quasi-judicial capacity, serving as an appellate body to review decisions from commissions or other bodies below.  If acting in that capacity, mayors have no veto authority and disagreements with the council decisions go to the Minnesota Court of Appeals.

            The City Council review of the Saint Paul Planning Commission Alatus project was a quasi-judicial review.  In cases such as Minnesota Center for Environmental Advocacy v. Metropolitan Council, Handicraft Block Limited Partnership v. City of Minneapolis, and Interstate Power Company v. Nobles County Board of Commissioners, the Minnesota Supreme Court said that an entity was acting in a quasi-judicial capacity when  it engaged  an “(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.”    Even more specifically, Handicraft Block has declared city council reviews of decisions by planning commissions to quasi-judicial decisions, which are not subject to mayoral vetoes. 

In fact, council reviews and decisions on conditional use permits, variances, special use permits, and historic preservation have all been ruled quasi-judicial by the Minnesota courts.  While there is no specific Minnesota decision saying a mayor cannot veto a quasi-judicial decision, the logic  is clear. Other states, such as Florida in D.R. Horton, Inc.--Jacksonville v. Peyton, 959 So.2d 390 (2007), have reached a similar conclusion that mayoral vetoes do not extend to city council’s acting in a quasi-judicial capacity. No matter how one views it the logic of current case law is clear—in denying Alatus’ request to build on the Wilder site—the decision was quasi-judicial and not subject to mayoral veto.

            Mayor Carter’s veto of the council action should have no legal effect if precedent is accurate.  Whether anyone sues on this is a good question. But the political effect is different.  As noted, it does nothing to put breaks on Midway-Rondo gentrification.  Two, in an election year, it sends signals by the mayor to developers about where his priorities lie (and perhaps where he wishes to solicit campaign contributions for this and future election runs).

            Finally, as disclosure, let me make three points.  One, write this blog as someone who previously served as a city director of planning, zoning, and code enforcement and who also worked as a housing and economic planner for a community action agency. 

Two, in November 2017 after Melvin Carter was elected, I wrote him a letter from my perspective as a former planner, advising him among things that: “Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood… Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity based.  Thus, both place-based and mobility strategies are needed.”

Three, in January 2020, I applied for a vacant position on the Saint Paul Planning Commission with the endorsement of both Councilmembers Jane Prince and Rebecca Noecker.  Despite emails from my council member and me, the mayor’s office largely ignored my application.  Given the mayor’s veto, I largely see why.

Saturday, March 27, 2021

Georgia, Voting Rights, and the Second Great Disenfranchisement in America


            Georgia’s decision to restrict voting rights in partisan retaliation for Democrats flipping the state

should come as no surprise.  It is a continuation of a nearly generation long battle that is part of the Second Great Disenfranchisement in American history.  Like the first which occurred after Reconstruction ended in 1877, this one too is both partisan and aimed at people of color, especially at a time when the latter are about to take political control.

        Across Europe and the United States, the 1800s was the century of the battle for universal suffrage.  Democratic movements pushed for everyone to get the right to vote, including women, the indigent, and people of color. While the battle for universal suffrage began in the nineteenth century, apparent victory did not occur until the twentieth century.  In the United States, by the early 1970s federal laws and constitutional amendments achieved nearly universal suffrage, and enforcement of the 1965 Voting Rights Act significantly overcame the racial barriers that many states still maintained to prevent people of color from voting.

            But while the arc of American history has been an expansion of voting rights—an effort former Supreme Court Justice Thurgood Marshall referred to as expanding who was included in the promise of the Constitution’s “We the people”—there has also been a counter effort to suppress voting rights.  After the Civil War, the Republican Party embraced voting rights for the newly freed male slaves, while the Democratic Party opposed it.  When the 1876 disputed presidential election, Democrats conceded the election to the Republicans on condition that Reconstruction end.  This ushered in a 100-year-long Jim Crow era where literacy tests, grandfather laws, poll taxes, felon disenfranchisements, and outright lynching suppressed voting rights for African Americans.

            The first Great Disenfranchisement ended in the 1960s with 1964 Civil Rights Act and the 1965 Voting Rights Act and perhaps the 1993 Motor Voter Act.   But with universal franchise within grasp, the roots of the Second Great Disenfranchisement began.  It started with Barry Goldwater, George Wallace, and Richard Nixon defending states rights in the 1960s.  It continued into the 1990s with Republicans claiming Motor Voter would yield fraud.  And then post Florida 2000 and the disputed election between George Bush and Al Gore, the language turned to claims of voter fraud and the need to fix it via voter identification laws. 

Since then, there has been a generation long effort by Republicans to suppress voting rights, using the false claim of voter fraud as a pretext.  Now voter fraud has morphed into “stolen election” after Donald Trump lost the 2020 election and Joe Biden and the Democrats flipped Georgia, and with that, the control of the presidency and the Senate.  As the Brennan Center reports, 43 states have introduced more than 250 laws aimed at suppressing voting rights.   There is still no basis for the stolen election thesis,  as 60+  court cases after the 2020 elections showed, and according to Sidney Powell, Trump’s attorney, who, in response  to lawsuits challenging her claims of fraud, asserted that no reasonable  person would believe such assertions.  And with a conservative Supreme Court already having gutted the Voting Rights Act and poised to let states restrict franchise, the Second Great Disenfranchisement is in full bloom.  Georgia is at the center of the fight.

Georgia’s flip to voting for the Democratic Party presidential and US Senate candidates came as a surprise to many.  On one level perhaps its flipping vindicates Chief Justice Roberts’ majority opinion in Shelby County v. Holder when he pointed to statistics indicating parity in voter registration for Blacks and Whites across the South, insinuating that perhaps the VRA might no longer be needed.  Maybe Georgia in 2020 was proof that Jim Crow and voter suppression were left behind, and that the electoral college was no longer anti-majoritarian institution.

            Georgia was a surprise, but it was also a product of a perfect storm that may not be repeatable or serve as a harbinger for the rest of the South.  What happened in 2020 was a product of a concerted multiyear organizing strategy by Democrats and Stacy Abrams.  It also benefitted from a large Black voting population, a state with significant in-migration from the north to Atlanta, and college educated White suburban voters who disliked the incumbent president Donald Trump for among other things, his mishandling of the pandemic.

            Consider first the racial makeup of Georgia.  According to the 2019 Census Bureau American Community Survey population estimates, Georgia is 57.75% White, 42.25% non-White, with 31.94% African American.  Of the 11 states that made up the Confederacy, no other state has a high percentage of its population non-White.  The only state coming close is Mississippi at 41.97%. The latter, however, does not have as has a high percentage of the college educated as Georgia.  In 2020, 40% of the Georgia voters had a college education, with 14% of persons of color having a college degree.  Compare this to Mississippi where 30% of the voters had a college degree and approximately 8% of non-whites had college degrees.  In Georgia 61% of the voters according to exit polls were White, whereas in Mississippi it was 69%.   Finally, in Georgia 69% of Whites voters supported Trump and 88% of Blacks supported Biden, while in Mississippi 81% of White voters supported Trump while 90% non-White voter for Biden.

            What we learn from this brief comparison is that while racially polarized voting continues to exist in both states, the presence of more voters with a college degree somewhat mediated the partisan split in Georgia but not so much in Mississippi.  Nationally we know that in 2020 college-educated voters were much more likely to support Biden, confirming that Georgia voting patterns followed that trend.  Yet Georgia’s unique combination of racial demographics and education distinguished it from Mississippi and perhaps other former Confederacy states in setting the stage for the 2020 election results.

Given the above, one should not necessarily expect that the electoral college vote in Georgia in 2024 will produce similar results and perhaps protect minority rights.  And all of that was before the effort to suppress voting rights in that state.  Georgi flipped in part because people of color voted.  Suppress them in that state and a few others and the election in 2020 could have been different.  In fact, while Joe Biden won the presidency in 2020 by nearly seven million popular votes, he only won Arizona, Georgia, and Wisconsin by 19,457, 11,779, and 20,682 votes respectively, or collectively by 42,918 votes.  Suppress 43,000 votes and Trump would have won the electoral college again in 2020.

Elections have consequences.  That is why voter suppression is so important.  We are in the middle of the Second Great Disenfranchisement and 2021 will tell us whether the battle to protect voting rights will be won or lost.

Sunday, March 21, 2021

The US Senate Filibuster: It does not Produce Compromise, It Does not Protect Minority Rights


The debate over repealing the US Senate filibuster is reaching a partisan fever pitch.  Democrats are

worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed.  Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a   warning that of Democrats do this they will regret it in the future.

            Central to the argument for preserving the filibuster are two assertions.  One is that it is needed to protect minority rights.  Two, the filibuster encourages compromise.  The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

            The filibuster rule is a product of slavery politics, as was true of the electoral college.  If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same.  The Senate with its equal representation already gave the South a bonus in representation.  But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South.  John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation.  But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation.  His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

            Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it.  It was used to oppose civil rights legislation in the 1950s and 1960s.  While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

            Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now.  Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress.  But all that has changed, and Congress is far more polarized now than before.  We know that the filibuster’s use has increased over time.  Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time.  It demonstrates a clear pattern of increased use of the filibuster over time.


The filibuster has facilitated that.  One the filibuster encourages is not negotiation and compromise, but winner-take-all politics.  Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation.  If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time.  A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time.  In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed. 

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.   Correlating the two statistically, there is a strong negative -.66 relationship.  This means as the use of the filibuster has increased, the number of bills passed has decreased.  This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.





Thus, the filibuster does not produce compromise and it does not encourage legislating.  Instead, what it has done is weaken Congress, making it a far less effective body than it once was.  This has produced two phenomena.  One, it has empowered by the President and the Supreme Court.  It has done that by forcing the president to govern by executive order and bypass Congress when it can.  It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process.  It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation.  There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates.  The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

            The filibuster never was good for American democracy and it is even worse now.  The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.