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.


Sunday, February 14, 2021

What’s an Impeachable Offense?  We Don’t Know and that is the Problem

 After the 57-43 Senate acquittal of Donald Trump on the impeachment charge of inciting insurrection

against the government we are constitutionally left with a question:   What is an impeachable offense so serious that it merits the conviction and possible removal of a president from office?  As a result of this last failed impeachment this tool of controlling and disciplining abuses of presidential power is effectively dead.

US constitutional framers inherited the impeachment process from England.  In the battles for supremacy between parliament and the monarchy, the former used impeachment as a check upon the crown’s ministers, using the tool to remove those who abused their powers.    Impeachment was not a tool to be used against the monarch–the only or ultimate tool was the Glorious Revolution of 1688 resulting in a vastly weakened monarchy which was compelled into signing the English Bill of Rights in 1689.

The US constitutional framers too were fearful of strong executive power. US independence from England was precipitated by perceived abuses of power by King George III. The 1776 Declaration of Independence, especially the second half, is a catalog of a bill of particulars against the King.  Reaction to strong monarchical power produced America’s first constitution with no independent president.  By 1787 this was seen as a problem, and the task of the framers was to constitutionally produce a president with neither too weak or too sufficient of powers.

While Alexander Hamilton in Federalist Papers numbers 70-74 celebrated a strong presidency, other constitutional framers such as Benjamin Franklin and James Madison worried about abuses of presidential power.  Franklin declared that because it would be difficult to get a criminal conviction let alone an indictment of a sitting president, another tool was needed to check him.  Madison and others worried that limiting checks on the president to criminal violations might miss broader abuses of power including mal-administration.  They thus settled on the British impeachment model as a tool or remedy.  They adopted the phrase “treason, bribery, and high crimes and misdemeanors” as grounds for impeachment.

Originally the impeachment process called for the House to impeach and the Supreme Court to try the charges.  But later on during the constitutional convention the trial was moved to the Senate.  But at no point did the Framers clarify critical questions such as what is a high crime and misdemeanor; what standard of proof is needed to indict or convict; could one impeach or convict after a president left office; and if and when could the Senate vote to bar the president from holding future office?  Neither the text of the Constitution nor the constitutional debates clarify these questions, and English historical precedent is equally murky. Additionally, keep in mind that at the time of convention, political parties were assumed to be bad and hoped not to exist, and the Senators were appointed by state legislators and presumed to be above politics.  As a result, House indictments and Senate trials and the concepts of checks and balances and separation of powers  would place the country before the party.

Over time so much has changed.  Parties flourished and dominated American politics, especially today, in ways the Framers feared.  Senators are elected and captured by partisan politics.  These two factors alone changed the impeachment process. American history shows that.  Moreover, presidential power has vastly expanded, raising fears of what Arthur Schlesinger, Jr.  once called the imperial presidency.

Five serious impeachment processes have been initiated against US presidents (Andrew Johnson 1867; Richard Nixon 1973; Bill Clinton 1998; Donald Trump 2019; Donald Trump 2021).  All five started as investigations by rival parties, although Nixon’s enjoyed bipartisan support in the House Judiciary Committee vote to recommend to the entire House impeachment.  Had Nixon not resigned, who knows the final result.

But in the four remaining impeachments, House indictments and Senate trial votes largely followed party lines.  The fact that Trump’s second Senate impeachment trial resulted in the most  bipartisan vote ever with seven of 50 Republicans voting to convict still is not much of a story to tell.  Moreover, there have been four trials and four acquittals.  It’s just not clear now what is a convictable offense.  

The impeachment process has been trivialized and rendered powerless.  Indictment for lying about a sexual affair (Clinton) was a mistake, bringing two impeachments against Trump when there was no chance of a guilty verdict did equally as much damage to the process.  If seeking to pressure a foreign official to investigate a US president’s political rival or inciting an attack on the US Capitol were not convictable offenses then what is?  Short term partisan politics, anger, or the false belief that a point had to be made have done longer term damage to checks on presidential power.  Talk to any smart prosecutor.  Do not bring charges against someone unless you have a reasonable belief that you are going to get a conviction.

Trump twice abused his presidential power and deserved punishment but impeachment was the wrong strategy. Trump lost the election, he faces possible post-presidency indictments, and public opinion declares what he did leading up to and including January 6, 2021 was wrong.  History would have rendered the judgement and precedent here.  This acquittal renders history less clear.  It sets the president for whether impeachment will ever be a tool to check presidents.  It leaves open the very problem Democrats wanted to address–how to check abuses of power of presidents leaving office.  This checking of presidential power was the problem US constitutional framers sought to address in 1787, and it is even less clear now what the solution is.

Wednesday, January 27, 2021

Impeaching Trump Will not End the Pandemic

 No question that Trump’s January 6, speech as well as other lies instigated  the storming of theCapitol.  No question this was wrong.  No question that were he still in office he would have deserved to be impeached and convicted.   No question that trying after he has left office is constitutional. Nonetheless, the Democrats should not have impeached him.

Had a private person done what Donald Trump did on January 6, he would be criminally liable for inciting a riot or advocating destruction of government property.  This was not protected free speech.  Under the Supreme Court’s Brandenburg v. Ohio test for what is protected speech, language which advocates imminent lawlessness is not guaranteed by the First Amendment.  But even if it were protected free speech, Donald Trump at the time was no ordinary citizen–he was the president of the United States, and a higher code of conduct governs his behavior.  His duties under Article II of the Constitution to “take care that the laws be faithfully executed,” or his oath of office  charging him to “preserve, protect, and defend the Constitution” make what he did wrong.

Impeachment would be the remedy were he still in office.  One can be impeached for “treason, bribery, or high crimes and misdemeanors.”  Treason is defined as waging war against the United States.  Declaring elections to be stolen when they were not and advocating the use of violence to overturn them certainly sounds like treason.  But if not, they certainly constitute a high crime and misdemeanor, which the constitutional framers understood to mean non or malfeasance or simply the inability to perform one’s expected duties.  All that fits Donald Trump.

Were he still if office impeachment and conviction would be warranted.  Constitutional framers such as Benjamin Franklin talked at the constitutional convention of the need of impeachment  to check presidents while in office since it would be unlikely or hard to   criminally indict them.  The remedy here would be removal from office.  But what to do with an ex-president–can he still be impeached and convicted?  Constitutional text does not explicitly preclude it, historical precedent from 1876 when the Senate tried a cabinet official after he resigned, and Supreme Court  decisions saying that matters of impeachment and trial are the sole prerogative of Congress all suggest it is allowed, or at least it will not be prevented if challenged in court.  Thus, Rand Paul’s resolution declaring the trial unconstitutional is practically meaningless given Democratic control of the Senate.

But while all the above is true, political reality makes this coming trial a farce.  The Democrats will not get a conviction.  In their defense, Democrats will argue what the president did was bad and that he needs to be punished.  That even if not convicted he goes down as the only president twice impeached.    Perhaps also implicitly Democrats are doing this to put pressure on Republicans, to split the party, to appease their angry base that hate Trump, or perhaps to gain 2022 political advantage.  Yet none of this justifies impeachment and trial.

Trump has disappeared from the horizon since January 20.  A trial gives him a forum again.  An acquittal gives him vindication.   A trial splits moderate Republicans from the rest of the party, doing little to moderate in control of the Trump faction.  Democrats get no more satisfaction out of this than the person in anger who kicks and breaks something and for a second feels good until realizing the more lasting damage done.

Democrats would have been better censuring the president.  This is not a better option because perhaps some Republicans might have joined in.  But because it would have denied Trump a chance to respond or vindicate himself.  This censure, his election loss, and the events of January 6, as well as his entire presidency would have served a greater lesson in history to and for him and others than a failed conviction will yield.

But also, the problem here is that the trial is a sideshow or distraction.  It will give Democrats a justification for their failure to enact meaningful policy.  We need to address a health care crisis.  There are enormous racial problems in America.  The gap between the rich and poor is at record levels.  Climate change is an existential threat.  Mainstream Democrats have no viable path to address these issues (not that the Republicans do either).  But impeachment and a failed trial says getting Trump is more important than these issues.  It provides cover for Democrats when they say they wanted to do something but the Republicans blocked it.  It allows them to say that  the neo-liberal policies they have pushed since Bill Clinton and which will be what they are advocating now are the best they can do given the Republican opposition in Congress and nationally.

A failed Senate trial does not save any lives from hunger, prevent another George Floyd, or distribute vaccines to save lives. The best way to get even with Trump would be with good and effective public policy not only to reverse his legacy but carve a new path for the Democrats that would achieve meaningful change.  The coming Senate trial simply is a diversion–bread and circuses for the masses–and not a substitute for meaningful legislative and policy change.

Sunday, January 24, 2021

Stop the Zoom Testing! A Plea to the New Luddites

Nearly a year into the pandemic we are all exhausted by the new routines of isolation and distance


working, shopping, and education.  For me the most trying part of the new world of distance everything is the inherent fear of Zoom or other similar technologies and the obsessive need of people, even now, to do repeated testing before a presentation for fear that it will fail.

Many individuals are Luddites at heart.  Luddites were a nineteenth century English radical group which destroyed machinery just at a time when the industrial revolution was beginning.  They feared, and not irrationally, that new machines and technology would render them redundant as workers.   Today’s Ludditism is partly about this,   But it is also inspired by a fear of new technologies and that they could break down, not work, or simply fail at the most critical time when we need and depend on them.  At work or school the fear is that if something does not work it will reflect badly on us, especially when it comes to a talk or presentation, both of which already generate high anxieties. 

But Ludditism does not have to be about high or advanced technology. Years ago a friend worked for someone who then did not trust overhead projectors.  The fear was that at a critical point they would not work when needed because perhaps the bulb in it would burn out.  As a result, the person would come early to a meeting, turn the projector on and off several times, thereby enhancing the chances the bulb would burnout and it generally did.  He then brought extra bulbs to his presentations, but his persistent testing before talks, resulting in bulb failures, only reinforced his lack of faith in overhead projectors, his need to test, ad infinitum.

In the last year between teaching, interviews, and talks, I have used Zoom, WebX, Microsoft Teams, or something similar  well more than 1,000 times.  I'm comfortable with it but not all are.  For so many talks I am asked to schedule a pre-presentation test to make sure that the lighting, sound, display, and  connectivity are perfect.  They request to make sure that where I am sitting is good, that I know how to use chat, display slides, or to plan for a host of other issues.  In reality, almost all the tests are a waste of time.

Testing my connectivity on a Tuesday will not guarantee that I have connectivity on Wednesday.  The light and contrast for a test at 9:00 AM for a presentation at 3:00 PM will be very different.  Where I am sitting at 10 AM to ensure proper headroom or balancing does not mean it will be the same two days later unless I am told neither to move nor breathe in the interim. Pets and children not around during a test might magically appear in the real presentation, and unless I am using the same computer and software as everyone else, Powerpoints might look or operate differently to different people.  Finally, as much we may insist on it in tests, in the live performance someone will forget to mute or unmute, turn on or off the video, or drift off and not pay attention or simply forget how to do something that you did not account for.  

I am simply exhausted by these tests!  A simple talk or presentation doubles in time as everyone seeks to micromanage or anticipate everything that can go wrong.   I have had people fearful for no reason that I would not show up, send me numerous reminders, or freak out if I am not on-line and ready for the talk and one more pretest 30 minutes or an hour before the real performance.  Yes, being prepared and practicing is good, but all this is overkill.  It’s time to stop.

I think I speak for many who are burnt out by all this.  This new Ludditism feeds upon other fears and anxieties and it does nothing more than reinforce them every time something goes awry not experienced during the test.  It’s time after 11 months to accept the fact that stuff happens, that we cannot control everything, and that it most cases now all this testing is simply a waste of everyone’s time.