Trump to America: “Let Them Eat Eggs”

 

To wreck, to wreck, to wreck

Did I build this ship to wreck?

Florence & the Machine

As Donald Trump, Elon Musk and the cabal of plutocratic billionaires that the President calls his cabinet pursue their self-interested agenda, they are telling Americans that they need to prepare to sacrifice and feel economic pain for the good of society.

Why is it that the least advantaged in our society are always the ones asked to sacrifice for the greater good?

Trump's speech to Congress foretold economic pain for Americans.  Supposedly, tariffs, budget costs, layoffs and the elimination of the already decimated social welfare net will be good for America in the long run.  It will require sacrifice by farmers, laborers, people of color, and anyone who buys products or receives services from the government.

Perhaps sacrifice is occasionally necessary. Yet it never seems that the rich are the ones who are asked to sacrifice,

At one time the demand to ask the poor and the middle class to sacrifice was called trickle-down economics under the Reagan administration.  Tax cuts for the rich, coupled with a loosening of the regular regulatory system and cuts to the social welfare system would eventually trickle down and benefit all Americans.

Then the call for the poor to sacrifice for the country was called free trade under the Clinton administration.  Yet again, the argument was that by opening borders with free trade America would prosper, even though some in manufacturing and among the poor, the working class, and the people of color would have to sacrifice.

Then it was the demand under the Obama administration that people lose their homes so that we could afford to bail out the too big to fail banks.

The result of all those sacrifices were to produce an America with a gap between the rich and poor greater than we've seen in American history. It was to produce an America in where nearly one out of six children lived in poverty, where  economic mobility has nearly come to a halt, and the American dream of homeownership has become something that only a few can hope for.

Many years ago, philosopher John Rawls wrote his book A Theory of Justice. He argued that disinterested individuals constructing the rules of societal justice would agree to two principles. The first  would be like liberty consistent with the same liberty for everybody else. Two, what came to be known as the difference principle, specified that inequalities should be treated as arbitrary unless they work first to the advantage of the least advantaged person in our society.

Rawls’ book was a call for both political liberty and a challenge regarding the economy and social welfare. The challenge was to say inequalities were presumptively impermissible unless one could show that they were first advantageous to those who were poor.  Yet in the more than fifty years since his book was published, social policy has gone the other way. It has gone not to presuming inequalities are impermissible, and that the poor should not be to ask to sacrifice first, but that instead the poor should be asked to sacrifice ahead of the rich, ahead of the affluent, and that the inequalities in our society are somehow reflective of some basic principles of justice.

Trump's declaration that there will be pain for those who can least shoulder it is yet the latest manifestation of a series of social policies over the last cent half century that have wrecked the ship of American democracy. They are doing damage to the very framework of what has come to knit our society together  Somehow it is the belief that making people's lives miserable will motivate them to work harder, when in fact, making people more secure, economically, socially and politically, is what motivates people to work harder than what makes us all prosper.

In the end, Trump musk and his cabal of billionaires have adopted a modern-day Marie Antoinette view of the world. When Marie Antoinette was once told there was not enough bread to feed the French masses, she remarked:  “Let them eat cake.”  Perhaps now the adage for Trump fittingly would be:  “Let them eat eggs.”

The Democrats Loss of the Working Class was Fifty Years in the Making

 One month out after Donald Trump and the Republicans beat Kamala Harris and the Democrats, the

reasons for the electoral defeat are still being debated. Yet, while it is possible that Harris could have won, but for several mistakes that she made, it is not clear that any Democrat could have won this election. In fact, the roots of Harris’s and the Democratic losses in 2024 are deep going back at least to three previous Democratic presidents.

Contrary to conventional wisdom, the 2024 presidential race was close. Had Harris picked up approximately 124,000 votes in the critical swing states of Michigan, Pennsylvania, and Wisconsin, she would have been an electoral college winner for the presidency. This is comparable to how in 2016 Hilary Clinton would have won the presidency had she picked up 90,000 more votes in the same three states, or had Trump won 43,000 more votes in 2020 in Arizona, Georgia, and Wisconsin.

Some might argue that had she picked a different vice-presidential candidate, such as Josh Shapiro from Pennsylvania, which might have made a difference. Or that had she developed a better narrative or broken with Biden sooner, perhaps the results would have been different. But the roots of her and the Democratic Party’s failure to win, and especially to lose the working class, go back decades.

It started in the 70s and 80s, when the US economy was restructuring away from manufacturing. The jobs that were lost belong to the working class and with the new economic employment opportunities going to those who were college educated. As manufacturing disappeared from the US, the gap between the rich and poor accelerated, starting in the eighties up to the present. The Democrats did little to address this growing inequality, and in fact, embraced it and the new economy and the new workers who would be the winners.

The first major mistake was under Bill Clinton. His endorsement and support for NAFTA clearly demonstrated an indifference to how free trade would hurt the working class and people of color. The enthusiasm there and among the Clinton Democrats for free trade drowned out critics who said that unless the agreement protected the working class, it would have hurt them, even though it generated, perhaps overall greater net worth for the business community. NAFTA had winners and losers, and it favored the business community, as well as eventually favoring those college, educated, trained individuals who were to benefit from the new internet based intellectual service economy, of which NAFTA was part.

The second mistake was with Barack Obama. In 2008 as the global economy collapsed due to bank failures in the United States, initially, George Bush pushed through TARP, the Troubled Asset Relief Program, to help bail out banks. Once in office, Obama continued that approach to bail out the too big to fail. His Treasury Secretary, Tim Geithner, when asked at one point about all the hundreds of thousands or millions of homeowners who were going to lose their houses, he demonstrated a tin ear by saying that that would have to happen to save the banks.

Finally, under Joe Biden, his support for the working class was supposedly what led him to defeating Donald Trump in 2020. It was probably less that and more that Trump mishandled the pandemic. But among Biden’s signature achievements was the Inflation Reduction Act, a commitment of hundreds of billions of dollars to transition the United States to the green economy with green jobs. Yet again, these were not jobs that were going to benefit the working class that used to support the Democratic Party. Instead, it would go to those with different skill sets, and not necessarily in areas such as Pennsylvania, Michigan, or Wisconsin, where Democrats needed votes.

Three Democratic presidents, three critical choices that demonstrated a turning away from the working class. What is not surprising is that they finally abandoned the Democrats en masse in 2024 what is more surprising is that they did not do it sooner. As the Democrats regroup, they need to think about these broader and deeper structural choices that the party made and how it has walked away from the working class under each Democratic President for the last fifty years.

Biden's Abysmal Debate: Denial ain't just a river in Egypt

                    

As much as partisan Democrats seek to put lipstick on a pig, Biden's first and probably last
presidential debate was a disaster, if not fatal. Not only did it fail to do what it was supposed to do but it also confirmed public perceptions about Biden and trendlines in the presidential race that had largely been frozen for nearly six months.

            Even before this debate there were growing concerns about Joe Biden's age and cognitive capacities.  Four years ago the public was concerned about Biden's age and that has only grown since he was president.  Biden has held the fewest number of press conferences since Ronald Reagan was president, and his public appearances have mostly been canned and scripted. For many, he looks like their aging grandfather who has good and bad days, with many wondering that while we see Biden on his good days, what is he like on those days which are not so good?

            Polls indicate a majority of Americans are concerned about his age and think he shouldn't run for reelection.

            Even beyond the age factor, political science models all suggest that Biden was going to lose the 2024 election. While the models are not perfect, they look to presidential approval rating and perceptions about the economy as key to predicting reelection.

            Biden has approval numbers worse than Trump did in 2020. In fact, no incumbent president has ever won reelection with the numbers that Biden has.  In many cases, the economy looks good yet the public remains very fraught and fearful about inflation and the future of the economy.

            Even if we did not look at a traditional political science prediction model, polls indicate that for at least the last six months, Joe Biden and Donald Trump have been frozen in terms of what the numbers say in the five or six swing states that are going to decide the election. Last October I looked at Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. Five swing states that will decide the 2024 election. Joe Biden was behind in enough of those swing states that were the election held back then he would lose to Donald Trump in the Electoral College. A couple of months later, the New York Times did a similar analysis, but added Nevada to the list. It too found that Joe Biden would lose to Donald Trump and the Electoral College.

            Leading up to this debate, the polls indicated in those critical swing states that Biden and Trump are close, but Trump enjoyed a consistent if not narrow lead. Generally this election as I've argued will come down to about 150,000 to 200,000 swing voters in five or six swing states. We are looking at an incredibly small number of people who effectively will decide the election.  Biden needed to move these voters.  They are probably low-information voters not paying a lot of daily attention to politics, but might nonetheless be affected by mass, pop culture or otherwise impressions of the candidates.

            Biden and his staff too were looking at the polls in the swing states.  They needed to do something to shake up the dynamics of the race.

            Thus an early debate.  Thus far, neither abortion politics as it did in 2022, nor fears of Donald Trump being reelected seem to be enough to change the trajectory of the Biden campaign. He and his staff placed a lot on the value of this first debate.

            The debate did little to move the trendline. There is no indication thus far that it altered people's perceptions of Trump versus Biden in a significant way or at least in a way to Biden's advantage. But what it did do was to confirm what many people believed about Biden and that he lacked the wherewithal to serve out a second term as President of the United States.

            After the debate party loyalists did their best to address Biden's bad performance.

            They said that it was just one bad day and he will be able to recover from it. In doing that, they drew parallels back to 2012 where Barack Obama had a bad debate against Mitt Romney but managed to recover. But that analogy is not appropriate. No one questioned Obama's cognitive capacities in 2012. There was not a belief that he was too old or too feeble to be president. He had a bad debate.

            Biden's bad performance confirmed what most people are believing. The debate might have been a bad day, even if Biden had a good day afterwards it does not alter the  impression that he is an eighty-one-year old in cognitive decline.

            It is nearly impossible to shake those types of public impressions for those few undecided voters who are out there if they were paying attention. There's an old adage you don't have a second chance to make a first impression. This first impression for them might well have been decisive.

            Party loyalists are also trying to argue that they would rather have a president with a sore throat and who stammers a little ahead of a president who lies. It may be true that the debate was between a person who lied about the facts and one who forgot the facts. But it still doesn't change the fact that there is no indication that this debate changed perceptions about Biden or changed the trajectory of the race. Does this mean that people, especially those 150,000 to 200,000, are more likely to vote for Trump? Perhaps not. It certainly doesn't mean they're more likely to vote for Biden. They could very well stay home on election day. They could vote for an alternative third party candidate. But certainly Biden did nothing to win them over.

            The reaction to the debate shifts to the question of decision making. All indications are for the last several months there were concerns among some in the Biden campaign regarding his mental capacities. But nonetheless the Biden campaign and partisans are rallying around him.  Party loyalty and loyalty to Biden seems stronger than the resolve for the Democrats to win the election. They fear an open convention more than they appear to fear losing. They fear being politically ostracized within the party. Much like Congressman Dean Phillips was when he said Biden shouldn't run.

            Somehow, Democrats are thinking he can still win this one.

            Perhaps they hope abortion fear of Donald Trump or some other black swan will intervene and change the trajectory of the election, perhaps even a second debate.  While I think a second debate is unlikely because Donald Trump has no incentive to do it. The risks of a repeat of this are too great for even Biden to consider. Yet he probably will do it or insist on it.

            There is something wrong with this level of insularity in decision making. If a candidate who was so unpopular and now so demonstrates lack of cognitive capacity even only occasionally still is nominated, there is something wrong in how political decisions are being made.  Yet despite all this, unless a black swan emerges, the theme of the Biden campaign might as well be “Denial ain’t just a river in Egypt.

Can Trump Really Flip Minnesota?

            If ever there were a state known as deeply blue in presidential elections, it would be Minnesota. Yet Donald Trump has declared his intention to flip the state in 2024 and he plans to speak at a Minnesota Republican Party event on May 17. Is Minnesota a swing state? Surprisingly, perhaps yes.

Minnesota is the most reliable state in presidential politics for the Democrats. The last time a Republican won the state was Richard Nixon in 1972. Even in 1984, when Ronald Reagan won a blowout election, Minnesota stayed true blue voting for its favorite son, Walter Mondale.

If one looks at Minnesota right now, one sees a state with a trifecta if not a quadfecta. Democrats control both houses of the legislature as well as the governorship and all the Supreme Court justices are also appointed by Democrats. No Republican has won statewide office in Minnesota since 2006 when Tim Pawlenty last won the governorship. All this would suggest that Minnesota is not a swing state.

But consider an alternative view. Back in 2016, Hillary Clinton lost to Bernie Sanders in Minnesota’s Democratic caucus but chose not to come back and campaign. Donald Trump campaigned heavily in Minnesota only to lose the state by 50,000 votes, or one and a half percent. That suggested that perhaps Minnesota is winnable for a Republican candidate.. But to counter that, in 2020, Joe Biden won the state by seven percentage points.

If we look at the characteristics that make for a swing state, Minnesota demonstrates many of them. For example, it has a high percentage of white working class in terms of voters compared to Wisconsin, which has 56% white working class voters, Michigan at 53%, Minnesota hovers around 50%.

The racial composition of Michigan is 77.5% White Caucasian, Wisconsin 84.3%, and Minnesota right in the middle with 81.6%. In terms of college degrees, Michigan has 32% of its population with a college degree, Wisconsin 33%, and  Minnesota 39%. Minnesota demonstrates many of the characteristics that we see in Wisconsin and in Michigan, two more famous swing states.

 Minnesota also bears many other characteristics of other swing states.

Over the last twenty years control of the state legislature has flipped back and forth between the Democrats and Republicans. The current Democratic Party control of the legislature was a result of exceedingly close elections back in 2022. Democrats hold a 34-33 majority in the Senate and had less than 2000 votes  shifted Republicans would have controlled the Senate.  In the House, just a shift of about 2,500 votes might very well mean Republican control.

There are 87 counties in the state. Democrats are winning on average between eight and 12 of those counties in statewide elections, giving Republicans significant regional support. This is another characteristic of what we see in other swing states.

There is certainly no guarantee that Minnesota is actually in play in 2024. But Donald Trump's decision to compete here and to come to Minnesota for the annual Republican Lincoln dinner are indications that he wants the Democrats to defend the state.  For every dollar and every minute that Joe Biden has to spend in this state he can't spend them in another swing state.

            If Biden's goal is to expand the election, to force Trump to defend North Carolina, and  Florida, Trump is forcing Biden to defend Minnesota. Additionally, campaigning in Minneapolis and St. Paul, or up in Duluth, this  also benefits Donald Trump because the media markets for those two regions reach far into Wisconsin.  Running ads in the Twin Cities and Duluth media markets thus also have the benefit of being a two-fer.

            The reality of winning Minnesota is irrelevant. It is the tactic of forcing Joe Biden to campaign here for were he to take the state for granted. Minnesota might go the route of what it nearly did in 2016. When Hillary Clinton took the state for granted and nearly lost the state.

If the US Presidential Election were Held Today (Or Why Democrats Should be Beyond Worried)

 

Polls are not predictors.  They are merely snapshots of public opinion at a specific time. A lot can

change between now and the November 2024 US presidential election. But if the election were held today Donald Trump would beat Joe Biden in the electoral college and perhaps in the popular vote.

            There are many indications that Joe Biden is in deep trouble.  National  polls right now place him and Donald Trump in a tie, or with Trump with a slight lead.  But ignore all national polls.  We do not elect presidents either by national polls or a national popular vote.  All that matters is the electoral college and the race to get 270 electoral votes.

            But as I have written, not all fifty states are created equal.  Because of partisan demographics, population sorting, and the fact that forty-eight out of fifty states allocate their electoral votes on a winner-take-all basis, only a few swing states matter.  Within those few swing states perhaps only a few swing voters matter.  Back in 2015, I argued that there were only three numbers that mattered—10/10/270.  Ten percent of the voters in ten states would determine who would become president.  The reality was three swing states—Michigan, Pennsylvania, and Michigan decided the election.  Within those three states, shift 90,000 votes and Hilary Clinton would have been president. 

Four years later, factoring swing counties into the equation, the equation was 10/10/7/270.  Ten percent of the voters located in perhaps ten counties across seven states would decide the election.   In 2020 the election came down to Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.  But had 43,000 more individuals voted for Trump in Arizona, Georgia, and Wisconsin, he would have won reelection.

Now four years later the numbers to look at may be 5/5/5/270.  Five percent of the voters in five counties located in five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—will decide the election, with Maricopa, Fulton, Wayne,  Allegheny, and Door counties deciding who gets to 270.

How has the presidential race come down to this?

Let us assume that Joe Biden and Donald Trump are the presidential nominees in 2024.  Assume that that each of them wins all the same states they won in 2020, and that they again split the states of Maine and Nebraska the way they did in 2020.  Assume also that Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are the only swing states in 2024.  If the election were held today Trump would lead Biden in the electoral college 235 to 232.  This number reflects a shift in electoral votes after the 2020 census  that work to Trump’s benefit.  This leaves the above five swing states totally 71 undecided electoral votes.

Polls right now in  the five swing states show Biden leading in Michigan  and  Wisconsin (25 electoral votes) and Trump in the lead in Arizona, Georgia, and Pennsylvania (46 electoral votes). With the exception of Georgia where Trump according to the latest poll  has a nine point lead, all the margins  of victory are within the margin of error. This suggests that the races are really to close to call or could simply go either way.

Total up the safe states and swing states for each candidate.  Trump wins with 281 electoral votes to Biden’s 257.

The picture is bleak for Biden.  No sitting president has won re-election with approval ratings with what Biden now has.  Incumbents do badly when the public senses the country is moving in the wrong direction or when they perceive the economy is doing badly. This is the case now in the polls.

The public is worried about Biden’s age.  There is an enthusiasm gap comparing how Democrats feel about Biden compared to how Trump’s base feels about him.  Generally undecided voters break against the incumbent when they perceive things going badly in the country.

Add it all up—Biden is in serious trouble.

Biden and Democrats are hoping abortion saves them like in 2022. Or that the Trump legal problems and possible convictions will save them. These are tough bets to make.

Four years ago many viewed Biden as a one term transitional president who would pass the mantel on to a  new generation in 2024.  He still needs to do that.  There is a small window, perhaps just three to four months, that Biden has to decide to exit the race and leave room for another Democrat to emerge as the consensus candidate.

It is possible that Biden can still win. It is possible the polls are wrong or that they are not good predictors but simply snapshots in time.  One year is a political eternity.  Yet right now despite how bad a candidate Trump is with all his problems, there is no guarantee Biden  can win in 2024 and instead a good chance he will lose.

Saving American Democracy From Donald Trump-- Does the Fourteenth Amendment Provide a Solution?

 Winston Churchill once exclaimed that " democracy is the worst form of government, except for all those

other forms that have been tried from time to time."  With democracy facing challenges in the US the likes that perhaps not seen since the Civil War, the question is what to do. 

            This question takes on exceptional salience with the coming 2024 presidential elections and the prospect that Donald Trump could again be re-elected.   This has prompted some to call for some to employ the Fourteenth Amendment to declare Trump an insurrectionist and declare him ineligible for office.  As attractive as this solution may sound, it is a dangerous tool to solve  a pressing problem.

            Democracies can produce their own antithesis. The Democratic German Weimar Republic elected Hitler and the Nazis who annihilated the popular government. Across the world we see similar problems in Hungary, Poland, and perhaps Israel.  Our constitutional framers saw this potential too.

Democracy, including that in the US, is an experiment in the people ruling, and it is still not clear if it works.  The American Experiment according to historian James McGregor Burns was that of being the first popular government in history. While one can challenge whether the elite framers who were slaveholders truly were interested  in popular government, let’s assume they were.  For James Madison, perhaps the principal architect of the Constitution and one of the authors of the Federalist Papers the challenge of popular government or what we call representative democracy today is to protect it from majority faction, mob rule, populism, or what others have called the tyranny of the majority.

The fear was that the passions of the people would swell up and produce a majority faction, defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The political solution to the problem of  populism was  creating a system placing breaks on the mobilization of power through separation of powers, checks and balances, federalism, staggered political terms, and an electoral college.  Yet somewhere along the line these mechanisms have failed .

Political science research tells  us that democracies need elite and mass support to work.  Yet polls suggest the American public increasingly worries about  our democracy or no longer trusts it, and many elites too have lost confidence in it.  Among those Donald Trump.

No matter how you cut it, Trump is the worst nightmare of our constitutional framers.  He is why we had an electoral college to prevent his selection as president.  But nonetheless, he was elected once due to structural features in the electoral college that have reduced presidential elections down to what a few voters in a few swing states think.  We have a democracy that is not  purely majority rule nor  purely capable of containing the excesses of democracy.  We have a democracy where the wealth of a few drives the agenda.  We have a democracy where wealth inequalities as well as racial, geographic, and partisan polarization divide America.  We have a democracy with institutions designed for the eighteenth century seeking to operate in the twenty-first century.

Simply put, there are many reasons to fear the crisis of a house divided.  There are  many reasons why  the likes of Donald Trump appeal to so many.  Yet what is scary is that his efforts to overturn the 2020 election results  and whether as a result of it he should be considered a viable presidential candidate divide America.  It ought to be a no brainer—What he did on January 6, 2021, was  simply wrong.  He encouraged a storming of the US capitol with the goal of effecting a coup d’état and overturning an  election.

He is an insurrectionist and should be barred from office under Section Three of  the Fourteenth Amendment.  At least this is the conclusion of a forthcoming article co-written by a former professor and colleague of mine Michael Stokes Paulsen.

The Fourteenth Amendment was one of three Post-Civil War Amendments and a host of legislation adopted as part of the Reconstruction.  The relevant part of Section Three states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The question is what does this section mean and how does it apply to Trump, if at all?

            Central to Paulsen’s argument is a historical analysis of the Amendment with an argument that concludes that the Section Three exclusion was written to address specific circumstances growing out of the Civil War and the need to prevent former Confederacy members from serving in office and impeding Reconstruction.  But one can read Section three more broadly, as is true of Section One with regards to Duer Process and Equal Protection, to still be part of the Constitution and applicable beyond the Civil War and Reconstruction.   We can read it to apply to future events and use it to exclude Trump from future office because of what he did on or around January 6, 2020.

            I am not a professional historian—I am trained with a Ph.D. in political science as well as a JD and master’s in law as well as advanced degrees in philosophy and astronomy.  It is possible that Paulsen is correct that Section Three applies beyond the facts of Civil War Reconstruction and it has the meaning  he ascribes to it.  However, I decided to defer to some of the best American legal historians regrading Section Three’s meaning.

             Urofsky and Finkelman’s A March of Liberty (volume I, p. 502) describes Section Three as a “severe sanction” to those who  held office before joining the Confederacy.   Kelly, Harbison, and Belz’s  The American Constitution (volume II, p. 333) as originally proposed  “unconditionally  disenfranchised  all participants in the late  rebellion until March 4, 1870.”  But many moderate rebellions objected to the provision as two severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress.

            Foner’s The Second Founding (p. 85) dismisses Section Three  in one sentence as “long since faded into history.”  Foner’s masterpiece, Reconstruction:  America’s Unfinished Revolution acknowledges the Fourteenth Amendment can only be understood within the  content of the  1866 (257), the elections that year, and the fear that the present Andrew Johnson would undo efforts to  enfranchise former freed slaves (254).  Finally Maline and Rauch’s Empire for Liberty (volume II, p. 12) effectively ruled out all of the “South’s leaders” and was detested by  Southerners.

            At best historical evidence is mixed when it comes to the meaning and interpretation of Section Three.  Most  historians see it as time bound or limited to the circumstances immediately following the Civil War.   Yes, as Paulsen contends, other parts of the Fourteenth Amendment such as Section One may have a life beyond  the Civil War or Reconstruction, but just because one section is not limited by time and historical circumstances does not mean the entire Amendment is.

            The task here is not to criticize the historical claims.  One can concede the  history of Section Three and one can also concede that Trump encouraged an insurrection on January 6.  Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

            Trump deserves to be punished for what he allegedly did.  This is why we have courts, due process, and rule of law. Let the criminal justice process do its job. Additionally, one has to feel uncomfortable  letting election officials make determinations of ballot access.  While such decisions are subject to judicial review, there is already a problem in the US with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws.  Granted their case is different from Trump’s but we should not empower more discretion in election officials to deny access to the ballot.

            Additionally, a generation ago in 2000 the Supreme Court’s Bush v. Gore  was criticized for resolving the election dispute in Florida.  Many said the Court picked the president.  Here if the Insurrection Clause is used to keep Trump off the Ballot,  courts again may determine who is the next president.  This is especially with the likelihood that the Supreme  Court may eventually review any lower court decision.

            But there is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics.  In a polarized political environment such as the US is experiencing, keeping a candidate off the ballot does nothing to overcome that.

            Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states. 

            American democracy is in trouble and Trump is trouble for democracy.  He is a symptom of a deeper problem that keeping him off the ballot will not solve.  Short term political mobilization, especially in the critical five or six swing states that will decide the 2024 presidential election, is the solution.   Organize to defeat Trump.  But longer term there are major obstacles regarding race, class, and gender discrimination.  There are problems with election laws unfair to minor parties and candidates.  There is a need to address political disinformation.  The institutions of democracy need to be fixed.  Barring Trump from office will not accomplish that.

Trump is why the framers created the Electoral College

This blog originally appeared in The Hill. 

The possibility of a second Donald Trump presidency provides perhaps the strongest case ever for the Electoral College. Were the Electoral College to work as the Framers originally envisioned, there is no chance Trump would even be a serious candidate in 2024, let alone 2016 or 2020.

The Electoral College is perhaps the most maligned and misunderstood institution in American politics. There have been more efforts to alter or abolish it than any other institution, and polls suggest large percentages of the public support replacing it with a direct popular vote for president.

So why did the constitutional Framers create the Electoral College?

Historian James MacGregor Burns describes the U.S. in 1787, at the time of the drafting of the Constitution, as an experiment. It was an experiment in popular government. The world was full of monarchies, but nowhere did democracy exist or was there a government where the people could select their leaders.

As the constitutional Framers debated how to structure the new government, “fear” was the word of the day. Slave states feared the free; small states feared the larger ones. Everyone feared that if the new Constitution were framed wrong, they would lose. These disagreements led to the infamous three-fifths compromise, where slaves would count only as partial persons in determining population for congressional representation. Additionally, a recent uprising by farmers, known as Shay’s Rebellion, meant many at the convention feared that the people might not be capable or knowledgeable enough to vote.

When all this fear came to the presidency, the question was how to select that person. Alexander Hamilton originally proposed a president who would serve for life. While there was some talk of direct election of the president, there was little support for it. The less populous states worried that a direct popular vote would mean they would be dominated by states with more voters. The slave and free states each feared that the direct popular vote might work to their disadvantage. Thus the compromise — the Electoral College.

The idea was for the legislatures of each state to select electors who would be temporary, beholden to no one, with the sole duty of picking the president and vice-president. The presumption was these electors would be of sound judgment and character, and they would make the best choice for president. As Alexander wrote in Federalist No. 68: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Similarly, James Madison worried that with direct elections, “The ministers of foreign powers would have and make use of the opportunity to mix their intrigues & influence with the election.” Pierce Butler, another constitutional framer, worried that the “two great evils to be avoided are cabal at home and influence abroad.” The Electoral College would address both.

This system was also defended as protecting the minority from the tyranny of the majority. A direct popular vote might result in small states or particular regions or interests being ignored. The Electoral College was, as political scientist Martin Diamond once argued, the check on populism that might go bad.

But partisan politics quickly undermined the original vision of the Electoral College, as each state sought to control its electors and how they would be selected. In the early nineteenth century, as the spirit of democracy spread, legislatures gradually let the people vote to select the electors. Later on, states changed their laws to allow for each qualifying candidate to designate their own slate of electors, with popular elections determining whose slate was entitled to cast the electoral votes. Finally, fearing that the electors might not vote as the people decided, “faithless electors” laws were enacted to compel them to vote the way the popular vote went. The Supreme Court upheld such laws in Colorado Department of State v. Baca.

Changing notions of what democracy means have led to erosion in support for the Electoral College. Five times in American history — 1824, 1876, 1888, 2000, and 2016 — the winner of the national popular vote lost the presidency to the winner of the Electoral College. Many Americans saw this as undemocratic and urged that the Electoral College should go. One alternative is the National Popular Vote, a compact for states to cast their electoral votes for whichever candidate wins the national popular vote.

Now enter Donald Trump. Twice impeached, although not convicted; allegedly the beneficiary of Russian interference in 2016; now facing two indictments, with more possibly coming; already held liable for sexual harassment, and facing many other lawsuits. He is implicated in the January 6 attack on the Capitol and expresses no remorse for his behavior. By one count, he lied more than 20,000 times in office.

Yet Trump’s base is with him. He is the odds-on favorite to win the GOP nomination and perhaps the presidency again. For the first time, America could have a convicted felon as president.

Our constitutional framers would have declared him unfit to be president. Were the Electoral College operating how they had originally intended, there is no way Trump would now be a viable candidate for president. Perhaps the prospect of a second Trump presidency is the best argument one can offer for retaining the Electoral College.

George Santos opens a window to the ethics of political lying

 My latest in the Hill.

New York Congressman George Santos (R-N.Y.), who faces several investigations, is not the first candidate for office accused of lying, yet many seem to act as if he is. The question is whether such lying is ethically, if not legally, wrong and why, and whether there should be laws that make such behavior illegal. For the good of democracy, political lying should not be protected by the First Amendment; there should be sanctions for it.

Lying is supposed to be wrong. We were all taught that. But where is the line between lying and hyping? Nearly half of job resumes have at least one falsehood because people pad their work history and accomplishments to impress potential employers. Advertisers stretch the truth to convince us to buy products. Despite indignation, our society seems to condone some lying.

Unfortunately, American history is rife with candidates for office lying. The lies take different forms. First, they have lied about political or policy facts such as the state of the economy, crime rates, or foreign policy threats. Or they lie about the records or positions of opponents. Sometimes they lie about themselves or their own resumes.

Not all political lies seem to be of the same type. Lies about oneself are arguably the worst.  They speak to the character and fitness of a candidate for office. They are the basis for how most people judge candidates. We assume that honest people will run for office and that, if they are elected, we can trust their judgment to make decisions on a range of issues about which most of us have limited information.

Nonetheless, all lies pose a problem for politics and, ultimately, democracy.

American politics, including campaigns and elections, presupposes or depends upon truth-telling in order for it to operate appropriately. Elections are competitive contests where candidates put themselves and positions forth for voters to decide. Based on what candidates do and say, the public evaluates the merits of resumes and policy positions of those seeking office. Elections are marketplaces of ideas competing for voter approval.

This marketplace fails to work when candidates lie, especially about themselves. There are parallels to other institutions in society where truth-telling is assumed and enforced. 

The adversarial process in court, for example, works only because attorneys are required to act truthfully in presenting evidence. Juries can reach a fair verdict if they are presented with evidence and information they assume is true. Jurors may have to assess witness credibility and sort out the facts, but in the end they do not have to ask whether the facts they were presented are true.

The economic marketplace works only because of a belief in truthful economic activity. Yes, some might ascribe to the laissez-faire attitude of “let the buyer” decide. But most think that  outright consumer fraud or deception is wrong and that it distorts the marketplace. We presuppose all buyers and sellers will tell the truth and not benefit from lies or deception. This is why, in part, insider stock trading is wrong. Fair play and truth-telling is also behind the rules on intellectual  property.

In school, grades work as a fair measure of merit only if one presupposes that students are not cheating. Teachers suppose students are submitting their own work and assign grades based on it.  Thus, there are rules against plagiarism.

Connecting these three examples is the concept of character. Courts, markets and schools rely on trust and reciprocity, and both are related to honesty.

Elections are something like the adversarial process in court, business marketplaces, and grades in school. Candidates for office are like facts presented in court, products or goods for sale, or papers or exams submitted for grades. Political campaigns both cannot ask voters to decide which policies and candidates they like and ask at the same time what is truthful. At some point, there must be a baseline on what is considered true or false.  

Democracy rests on truth and knowledge. The classic First Amendment-defense of a free press and free speech is that the public is entitled to truthful information in order to be able to vote, make informed decisions, and hold the government accountable. Take away the presumption of truth-telling and, simply put, voters and democracy cannot do the job.

On the anniversary of Jan. 6, misinformation poses a greater danger than ever.

What George Santos allegedly did is an extreme version of what other candidates have done. He appears to have lied about who he was and what he represented. He gave voters, perhaps, a false picture of himself. If that’s true, it was resume fraud at its worst, false advertising, and arguably plagiarism all rolled into one. In an era when America has witnessed repeated lies about stolen elections and other matters, perhaps the public is finally disgusted. We need to rethink the outer boundaries of political lying.

Unfortunately, the Supreme Court seems to think that the First Amendment protects lying and has enabled such behavior. The court struck down laws aimed at prosecuting stolen or false military valor and state laws prosecuting political lies. It is incredulous that the constitutional Framers ever would have endorsed the idea of a “constitutional right to lie.” Instead of focusing on the speaker, the law should focus on the rights of the public and democracy to receive truthful information. Until we do that, there will be more candidates and officeholders who lie.

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.