Sex and Politics American Style

Sex and politics perhaps combine together the two oldest professions, if not avocations. Maybe it started with Marc Anthony and Cleopatra. But whatever the origins, the two continue to be perhaps not so strange bedfellows.

Anthony Weiner’s revelations about his continued sexting after resigning from Congress and now while running for mayor of New York again raise the question about whether a candidate or a politician’s sexual behavior is anyone’s business?  The simple answer is that there is not one. Public opinion is shifting on the topic and it is just not clear where the lines should be drawn between public/private behavior and how the sexual conduct of public officials should be judged when determining fitness for office. But nonetheless, we can learn something about sex and politics in America.

Sex and Politics in the World of Ozzie and Harriet Nelson
    Sex in American politics has followed changing public opinion and pop culture views and depictions on the subject. Go back to the 1950's and early 1960's and the sexual image of American politicians was sterile.  Politicians were of mostly male, but they were depicted as sexless beings. This reflected an Ozzie and Harriet Nelson, Lucy and Ricky, and Dick Van Dyke world where married couples on television slept in separate beds and where in reality unmarried couples were not supposed to have sex before marriage. Sex outside of marriage, “deviant sexual activity,” and all forms of homosexuality were illegal. Even talk of sex inside of marriage was dirty. Sex was taboo on television and the media would not have dared ever to discuss the sexual behavior of public officials, except in terms of scandal.

JFK and the Sexual Revolution
    President Kennedy tested the media. We now know of his infidelity, of his liaisons with Marilyn Monroe, and of stories of women being flown to the White House or Camp David. Yet the media never covered it, never discussed it, just simply ignored it. JFK was a handsome, sexy guy but he was sexless–except for the two children he had.

Then the sixties happened. The 60's Sexual Revolution changed so much–at least initially for men. Many of the old sexual don'ts collapsed.  One change was that the media could now talk about sex and politics, except it was all scandal.

In 1974 Congressman and Chair of the House Ways and Means Committee Wilbur Mills was stopped by police for drunk driving.  In the car with him was Fannie Fox, an Argentine stripper who fled the scene.  The story was well covered but despite it he was reelected.   After the election he appeared on stage at a strip joint with Ms. Fox’s husband while she performed.  He resigned.

In 1980 Congressman John Jenrette confessed to having sex with his wife Rita behind a pillar on the steps of the Capitol.  This story made headlines, but it was not the cause of his downfall.  He was convicted of taking bribes in the Abscam sting.  Few people remember Abscam, everyone remembers  the sex and his wife who eventually posed for Playboy.

1n 1984 Gary Hart's presidential campaign was derailed when news of him having an affair with Donna Rice emerged.   For years he had denied stories of infidelity and in fact dared reporters during his presidential campaign to follow him, claiming he had nothing to hide.  Yet he was photographed with Ms. Rice on his lap, with him wearing a shirt declaring him to be a member of the "Monkey Business Crew!"

In 1990 Minnesotan Republican Jon Grunseth ran as a family values candidate for governor and was forced to abandon his candidacy on October 28–just days before the election–when stories emerged that he and several of his middle-aged male friends had gone skinny dipping with Grunseth’s daughter and three of her teenage friends. There was also allegations of an extramarital affair.  The scandal had such a backlash on the media that it brought down Rudy Perpich and Rudy Boschwitz and led to the election of Arnie Carlson and Paul Wellstone.

Coming out of the Closet
    No one was GLBT in the world of Harriet and Ozzie Nelson.  It was either illegal or abnormal.  Politicians who were gay had no political future.  But as public attitudes toward homosexuality changed, so did view on gay sex and politics.

In the mid 1980's stories leaked that the then not-out-of-the-closet Massachusetts Congressman Barney Frank had hired a gay prostitute Steve Gobie.  As the story evolved Frank and Gobie became close and Barney hired Steve to work for him, eventually firing him after learning that Gobie was hooking. The House of Representatives attempted to censure and expel Frank for this, with the effort led by Larry Craig, a Republican Congressman and later Senator most famous for being arrested in 2007 in a Minneapolis airport bathroom on charges of soliciting gay sex.  Frank was re-elected several times, Craig served out his term and opted not to run for office again.

Bill Clinton
    Then of course there is Bill Clinton.  He was impeached but not convicted for lying about having sex with Monica Lewinsky. We learned of this after Republicans and Special Prosecutor Kenneth Starr spent $44 million taxpayer dollars to find out that the Clinton's did nothing illegal with Whitewater (a financial deal gone bad when Clinton was governor). What we got was a $44 million price tag to find out that Clinton had sex with an intern in the Whit House. The media and the Republicans were all over the story as well as accounts of affairs with Gennifer Flowers and harassment of Paula Jones. But Clinton seemed to portend a sea-change in sex and politics.  He left office more popular than ever while in office and the public seems to have discounted Clinton’s private life as irrelevant to a judgment regarding his political career.

Sex and Politics in New York (City) and Elsewhere
    Eliot Spitzer resigns as governor because stories emerge that he is seeing prostitutes while he was attorney general (and while prosecuting prostitution) and then still as governor.  John Edwards is forever tainted because of his non-marital child and affair he had while still married to his wife who was dying of cancer. Anthony Weiner is forced out of Congress because of his sexting. And then former governor Mark Sanford is forced out of office because of an affair with a soul mate in Argentina (not Fannie Foxe again), but a few years later is re-elected to Congress.

Conclusions
    So what do we learn for all of this sullied discussion of sex and politics?  First, public attitudes towards sex and politicians have changed... somewhat.  In 1965 it would not have been possible to discuss presidents or elected officials as sexual beings at all, or except in terms of scandal.  It would not have been possible to make the 1995 movie The American President – with Michael Douglas and Annette Bening – telling the story of a widowed president and a lobbyist dating.  The president is sexual but still there are dark overtones and rumors of conflict of interest as Bening’s character is lobbying for legislation and there are hints she is exchanging sex for political favors.

Second, Clinton and now Sanford suggests that in some situations the public will discount personal sexual behavior.  They will do so if the candidate does not make their own personal character an issue or put the issue in play.  By that, candidates such as Grunseth or Craig who run as family values conservative candidates have a harder time putting the issue behind them than candidates like Clinton who do not try to make claims about personal virtue.

Third, coming clean seems to be important. Clinton was at his lowest when he lied about the scandal.  Candidates who are honest about their affairs seem to recover. Often the cover up is worse than the sex. If Eliot Spitzer wins election as NYC Controller this will attest to that. Weiner’s downfall will be that he continued to lie about his persisted sexting (BTW: Look for a great headline in a NYC newspaper when he abandons his mayoral race “Weiner Pulls Out”).

Fourth, being gay no longer seems to carry the inherent stigma it once did.  However, with same-sex marriage becoming legal, it will be interesting to see how infidelity among gay and lesbian politicians is covered.

Fifth, so far all of the major sex scandals have involved male politicians involved with women.  The one exception in Minnesota was state senator Amy Koch.  How this might change in the future with more women as elected leaders is yet to be seen. Conversely, the role of politician’s wives so far has generally been that of a Tammy Wynette “Stand by Your Man” stance. Think of Hilary not leaving Bill and Silda standing next to Eliot.  Now some wonder why Huma Abedin is there for Weiner? Many are asking why is she still with this guy, what does he have on her? The notable exception was Jenny Sanford–she refused to stand by Mark at his press conference and she divorced him.

Finally, what we don’t know about sex and politics is more about voters and more research on how sexual scandals affect voting decisions would be interesting.  In a 1991 humorous essay I wrote for the Texas Observer I found evidence that more sexually active voters were less likely to vote.  This raises all types of great questions Anthony Weiner–those most likely to vote for him may be too busy having sex on election day.

Zimmerman, Food Stamps, and Immigration: It’s All About Race

It’s all about race.  It always has been in America and it appears that it continues to be the case.  Three events in the news this week, the House cuts food stamps and refuses to act on immigration, along with the acquittal of George Zimmerman (Trayvon Martin), demonstrate that we have not achieved the race-neutral or color-blind society that so many believe we have achieved.

W.E.B. Du Bois wrote in 1903  that "the problem of the Twentieth Century is the problem of the color-line."  He was prophetic.  America’s struggle with race and the legacy would dominate the 20th century.  First it would be the legacy of separate but equal and the squashing of voting rights with Jim Crow.  Then it was Rosa Parks, Martin Luther King, Jr., and the civil rights movement that produced the 1964 Civil Rights, Act, the 1965 Voting rights Act, and affirmative action.   It looked like progress had been made and as 2001 arrived some argued that this would be the century of a post-racial America.  At least that seemed to be the prognosis with the election of Barack Obama in 2008.

Yet the illusion of a post-racial America was always greater than the reality.  Despite progress on many fronts, the color-line and race remain a powerful reality in America even before the events of the last week.  Schools as segregated today as they were in 1954 when the Supreme Court issued its Brown v Board of Education decision that supposedly ended separate but equal.  Residential segregation, especially in the north, remains high.  Racial profiling by police, which was a major issue until 9/11, persists, and the racial disparities in terms of educational outcomes, incarceration, wealth, and income, persist.  We continue to live in what political scientist Andrew Hacker described as Two Nations: Black and White,  Separate, Hostile, and Unequal.

The backlash against civil rights was manifest in the war against drugs.  It also has played out in opposition to the Motor Vote Act, claims of voter fraud, and efforts to institute voter ID.  Hostility to welfare in the 1990s was all about race, especially with the mythic welfare queen symbolized as an African-American woman.  And arguments that affirmative action was reverse discrimination and  unnecessary because we had entered a new era where race did not matter failed to appreciate how even with affirmative action people of color–especially African Americans–were still under-represented in colleges and universities across the country. 

Even Obama’s victories in 2008 and 2012 pointed to the continuing legacy of race.  Yes he won, but the racial polarization of voting was significant with 98% of African-Americans voting for him and a majority of whites in 2012 for Romney.  In 2008 there is evidence were he not Black Obama would have won even bigger than he did.  Obama won despite his race.

And then the Supreme Court weighed in.  In June it issued two opinions, one on affirmative action, one on voting rights, that vastly limited the ability of schools to diversity and the federal government to police states that seek to impede minority political rights.  As I suggested in an earlier column, we are witnessing the end of the second civil rights era and the coming of the second great disenfranchisement.

And now the events of the last week.  First, the Republican House makes it clear that it will not move on immigration and it passed a farm bill without authorizing food stamps.  Both moves are simply base politics.  The current base of the Republican party is old, white, and conservative.  It is hostile to taxes, immigration, and just doesn’t get it on race.  Opposition to immigration and food stamps will probably not cost Republican House members as votes in 2014, and instead it will help them.  With so few swing districts in America, few Republicans will fear voter retribution if they voted the way they did.  Instead, they stave off conservative challenges and shore up their political base.

Of course, such a strategy is of a short time horizon.  American demographics are changing and this vote does nothing to help the GOP reach out to Hispanics and other racial minorities who will become the new majority in America.  Even many in the GOP recognized the need to move on race, as evidenced by the 2013 Republican study entitled The Growth and Opportunity Project.  Yet getting a party to change to appeal to a new base when the old base remains hostile is nearly impossible.  The decision on immigration is simply another way that the GOP continues to shoot themselves in the foot.

The vote on food stamps is fascinating.  First, it is a story about welfare.  In passing the farm bill, the subsidies that have been approved overwhelming go not to the family farmer but to big agribusinesses.  Big corporate farms–generally owned by whites–again get their welfare.  Yet food stamps–welfare for the poor and middle class–get nothing.  The GOP continue to think that food stamps are only for the undeserving poor–the 47%ers–who are mainly racial minorities, but the reality is more whites, including suburbanites after the 2008 crash, get food stamps.  Again, such a vote endears the GOP to their base but does little to reach out to the real America who struggles.

Finally, is anyone really surprised by the Zimmerman acquittal? It was almost like an anti OJ Simpson trial.  Race mattered in both but in different ways.  With OJ, it was the rarity of a Black man acquitted  in the murder of a white woman.  But here it was the acquittal of a person accused of killing an African-American.  Granted that Zimmerman was part Hispanic, but the case was really painted as a white-black one. Five white women and one woman of color were on the jury.  It was a jury where race was an issue to start with.  Studies suggest that it is hard for a lone juror to resist others if there is not another person supporting her.  Six-person juries are less likely to find a second dissenter.  My point is that if race was a factor among the jury and its composition, a six-person jury made it more likely that a single person of color would find it hard to change the deliberations dynamics than were there a larger jury with more people of color on it.  Second, the stand your ground law in Florida made it hard to convict.  The law significantly favors  the use of guns to defend.  Third, the defense effectively used race throughout the trial, playing on fears of out of control black teenagers and crime to scare an all-female jury.  It was just predictable. 

Du Bois’ color-line has not really vanished.  It continues to be about race.

Same-Sex Marriage and the Next DOMA Battle

The battle for state recognition of same-sex marriage has just begun.  While many might think that the Supreme Court decision in United States v. Windsor striking down section 3 of the Defense of Marriage Act (DOMA) represents the last judicial word on the issue, that is far from the case.  Instead, that decision has changed the legal debate and strategy regarding same-sex marriage, and it still involves DOMA.

            Imagine this likely scenario.  A same-sex couple is legally married in Minnesota and they decide to relocate to Florida, a state that does not presently recognize such marriages.  This couple then asks Florida to recognize their marriage with the intent of enjoying the state’s hundreds of statutory benefits regarding adoption, devising of property, or taxes that are available to married couples.  Is the State of Florida required to recognize this marriage?  There are powerful legal arguments to say yes, and they were only strengthened after the Windsor decision.

            Consider first what the Windsor case was about.  It involved a challenge to section 3 of DOMA. Passed in 1996, section 3 defined marriage at the federal level as exclusively a relationship between one man and one woman.  The practical effect was that all federal laws referring to marriage would use this definition.  This meant that any state which did recognize a same-sex marriage would not have such a union recognized under federal law.  In Windsor, at issue was a surviving member of legally married same-sex couple in Minnesota.  She had inherited property from her partner and sought to claim federal tax benefits as a couple and not as a single person. However, DOMA prevented that and she sued, claiming she was entitled to pay a lower tax as a surviving spouse.  Windsor challenged section 3 of DOMA as unconstitutional and the Supreme Court agreed.

            Writing for the Court, Justice Kennedy argued first that marriage remained a state issue.  By that, states generally had the authority under the Tenth Amendment to determine who could marry.  DOMA interfered with that state prerogative. What it did according to the Court was to single out a specific group for discrimination or special burden that state law sought to protect.  Such a singling out of a group–here same-sex married couples–was both a violation of the Fifth Amendment’s Equal Protection clause.

            This decision thus settled the issue of the constitutionality of section 3 of DOMA and federal recognition of state approved same-sex marriages.  Yet it did not address an equally important topic–Section 2 of DOMA and state recognition of same-sex marriages performed in other states. 

            Many have forgotten why DOMA was originally passed.  In the early 1990s a series of court decisions in Hawaii moved that state close to the recognition of same-sex marriage in that state.  Fearing that such a decision would then require other states to recognize these Hawaiian marriages, Congress enacted DOMA.  But the real heart of DOMA was not section 3 but section 3.  Section 2  declared: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”  In effect, no state would have to recognize a same-sex marriage as valid in their state even if that couple was legally married in another state.  Thus, Florida would not have to recognize  as valid a Minnesota same-sex marriage in their state, even if that couple relocated to their state to live.

            Even before DOMA many claimed that section 2 was unconstitutional, The argument was that it violated Article IV, section one of the Constitution–otherwise known as the Full Faith and Credit clause.  That clause states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under the Articles of Confederation, the thirteen original states often refused to recognize legal acts from other states, as each often discriminated against one another.   In the 1942 in Williams v. North Carolina the Supreme Court declared the purpose of the Full Faith and Credit Clause was “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.”

            What does this clause practically mean?  The most obvious issue is marriage.  Couples legally married in one state do not have to get remarried in another state when they move into it.  Divorce proceedings and many other court judgments and laws have to be recognized too by other states.  This is where the challenge to section 2 of DOMA comes in.

            While Congress has authority to define how such full faith shall be proved, it is not clear that  it has the authority to limit the scope of the Full Faith and Credit clause.  It is doubtful that Congress could pass a law permitting states to refuse to recognize opposite-sex marriages performed in other states, or even to allow them to refuse to recognize racially-mixed or mixed-faith marriages.  The same principle applies to same-sex marriages.  While Justice Kennedy in Windsor did say that marriage was a state issue, the Full Faith and Credit clause can be read as an abrogation of that state prerogative in some instances.  Moreover, given the language of Windsor where the Court assailed the federal government under Section 3 for singling out same-sex couples for special burdens after a state sought to protect them, one can apply similar logic under the Fourteenth Amendment Equal Protection clause.  One can argue that states cannot single out same-sex couples for special burdens and treat them differently from opposite-sex couples.

            This argument becomes even stronger if one brings in three other constitutional rights or clause.  First, there is the right to interstate travel.  In Shapiro v. Thompson that individuals have a right to interstate travel and that individual states may not interfere with such a right.  Such a right the Court ruled is inherent in the Constitution although they chose to use the Due Process and Equal Protection clauses to support their claim.  Then in Saenz v. Roe the Supreme Court used the Privileges and Immunities clause of the  Fourteenth Amendment to again assert a right to interstate travel.  In both cases at issue were state laws imposing durational residency requirements  upon relocating individuals who wished to collect public assistance welfare benefits.  In both cases the Supreme Court invalidated such laws as burdening these rights.  Finally, one could also argue that the Commerce clause in implicated here.  Refusal by a state to recognize a same-sex marriage performed in another state creates an impediment to interstate commerce. It places a burden on same-sex couples wishing to relocate to another state for business or employment.

            So now think about the legal status of section 2 of DOMA when it comes to a legally married same-sex couple from Minnesota moving to Florida.  One can argue first that Congress lacked the authority under the Full Faith and Credit clause to enact section 2.  States are then precluded under this clause, as well under the Equal Protection clause from  refusing to recognize same-sex marriages performed elsewhere. These constitutional clauses, Supreme Court interpretation of them, and the reasoning in Windsor are enough to argue that states are not free to single out same-sex marriages from legal recognition if performed in another state.  This is perhaps the next legal battleground on this issue.

Higher Education After Affirmative Action

So what would higher education in America look like without affirmative action? This is the question many are asking after the Supreme Court decision in  Fisher v. University of Texas, Austin declaring that the use of race in college admissions must be justified by a compelling government interest.  While the decision did not invalidate or declare the use of race unconstitutional in admissions decisions, it made it very difficult to do that, perhaps effectively ending affirmative action.

Some see this decision as a blessing and victory for color-blind justice. In its place some advocate the use of class or economic disadvantage as a way to recruit and diversify. But given the growing economic polarization in the United States and trends in higher education, the use of class as admissions criteria in itself will fail to diversify and open up higher education to many new faces.

The mixing of race and education have always been controversial. Affirmative action was one tool to combat this discrimination. In 1978, the Supreme Court in Board of Regents of California v. Bakke upheld the use of race as one factor that could be considered among others when making college admissions decisions. It was a controversial 5-4 decision, with Justice Lewis Powell writing the controlling opinion defending affirmative action and the use of race in admissions as a means of promoting educational diversity. Twenty-five years later in Grutter v. Bolinger, the Supreme Court in another controversial 5-4 opinion again upheld the use of race and affirmative action in college admissions decisions. This time Justice O’Connor wrote the controlling opinion, yet this time opining that she hoped in another 25 years race no longer would need to be an admissions factor in a color-blind society.

But many in America still resent affirmative action. States such as California have already banned it, and there are calls to shift away from race and instead use economic disadvantage or class in place of it. What if the Supreme Court does ban the use of race in admissions, is class a good proxy or replacement? Not necessarily.

The real problem with shifting to class as an admissions criteria is that higher education has closed its doors to the poor, and America is more and more becoming an economically unequal society. The reality is that the poor cannot afford to go to school and higher education no longer seems to want or can afford them.

Consider America’s economic polarization. The first study is from the United States Census Bureau in 2010 describing poverty and income in America. In 2010 the richest five percent of the population accounted for 21 percent of the income, with the top 20 percent receiving more than 50 percent of the total income in the country. This compares to the bottom quintile accounting for about 3 percent of the total income.

A second study by the Center on Budget and Policy Priorities in 2010, drawing upon Congressional Budget Office research, found that the income gap between the top one percent of the population and everyone else more than tripled since 1973. After-tax income for the top one percent increased by 281 percent between 1973 and 2007, while for the middle class or middle quintile it increased by 25 percent, for the bottom quintile it was merely 16 percent. Looking beyond income to wealth, the maldistribution has not been this bad since the 1920s. According to the Institute for Policy Studies, in 2007 the top one-percent controlled almost 34 percent of the wealth in the country, with half of the population possessing less than 3 percent. The racial disparities for wealth mirror those of income. Since 2007, the wealth gap has increased as the value of American homes–the single largest source of wealth for most Americans– has eroded. Studies such as the Survey of Consumer Finances by the Federal Reserve Board have similarly concluded that the wealth gap has increased since the 1980s.

But Americans still dream and believe they can rise to the top. Yet social mobility in America has ground to a halt. A 2010 Organization for Economic Cooperation and Development study found that social mobility in the United States ranked far below that of many other developed countries. Nearly half of the economic advantage parents have in the United States is transmitted to their children; a number nearly two-and-one-half times that of Australia and Canada. The biggest cause of social immobility according to the report is declining educational opportunities for many students. Other studies, including those in 2005 and 2010 in the Economist, similarly point to the declining social mobility in the United States that makes it difficult for individuals to rise from one social economic status to a better one. In fact, there is better than a 95 percent chance that children will not improve their social economic status in comparison to their parents. In sum, the rich are getter richer and the poor cannot change their lot.

Now consider higher education. The New York Times and other media services have talked about the declining applications from blue-collar students to elite universities and higher education in general. Rising tuition rates are pricing the poor out of school. But other studies point to universities which are culturally intolerant to the poor and working class. Fewer and fewer professors are first generation college students, and many schools rely upon legacy admissions. At Harvard, studies recount how legacies–children of students who previously attended Harvard–appear to have a greater chance of securing admission than those whose parents did not attend the school. For supposedly the most selective school in the country, the legacy applicant pool is not as competitive. Additionally, applicants who attend a select number of preparatory schools also seem to benefit in terms of admissions. Income and family economic advantages make a difference in terms of admissions and success in school.

The point here is that finding  race in admissions as unconstitutional and replacing it with class will do little either to diversify higher education or open up opportunities for the disadvantaged. Affirmative action for the poor will do little to ensure they are admitted, that they can afford to go, or that they can succeed and compete. Merely changing the law this way will do little to help the disadvantaged, regardless of race.

The End of the Second Civil Rights Era and the Coming of the Second Great Disenfranchisement

    With Monday’s affirmative action decision and Tuesday’s Voting Right Act case the Supreme Court has just about ended the second civil rights era in American history, paving the way for the second great disenfranchisement in American history.   While the decisions were no surprise, they nonetheless tell us many things about race, class and power in American politics, and also about who the Supreme Court favors. . .and it is not the powerless and oppressed.
    Consider first what the two decisions did.  On Monday the Supreme issued a decision ruling that the use of race in admissions decisions for public colleges and universities is not permitted unless it survives strict scrutiny.  What that decision means is that higher education must demonstrate a compelling reason why race should be used for admission decisions.  Strict scrutiny is a high bar to jump, and effectively decision means that it will be very difficult to implement most affirmative action decisions that rely on race.
    Tuesday’s decision affected perhaps the single most effective civil rights tool in American history–the Voting Rights Act.  Passed in1965 and reauthorized several times, the act had several provisions.  Some applied to all states and barred discriminatory practices that impeded minority voting rights.  But Sections 4 and 5 were unique.  Section 4 applied to certain states that had low voter registration and discriminatory practices in 1964.  For those states that met the Section 4 criteria, any changes that they made in their voting procedures would have to be “precleared” by the US Justice Department before going in to effect.
    The overall VRA was passed to overcome the history of discriminatory voting practices enacted in the South after the Civil War.  As the Civil War ended Congress passed several civil rights acts along with the 13th, 14th, and 15th amendments.  Collectively, this legislation was part of Reconstruction which sought to rebuild the South and promote Black equality.  Yet Reconstruction ended in 1877 when federal troops were withdrawn from the South as part of a deal to end a presidential election standoff between Harrison and Tilden.  When Reconstruction ended, southern states enacted all types of restrictive legislation to effectively re-enslave Blacks.  We saw the emergence of separate but equal, but also laws aimed at preventing African-Americans from voting.  These efforts included poll taxes, literacy tests, grandfather laws, and felon disenfranchisement laws.  More extreme, the KKK burned crosses and lynched to make sure their message was understood.  These laws were upheld by the courts and discrimination persisted in the South.  After a brief flirtation during Reconstruction when many former slaves were elected to office or voted, the laws were a success–until the 1960s only a few percent of the African-American population could vote.
    But a new civil rights era began with Rosa Parks, Martin Luther King, Jr., the Supreme Court decision Brown v. Board of Education of Topeka, Kansas, and the VRA.    Civil rights heroes pushed the cause of equal rights onto the political agenda, President Johnson responded with the 1964 Civil Rights Act and the VRA, and the Supreme Court under Chief Justice Earl Warren upheld their constitutionality.   The VRA has been powerfully successful in promoting civil rights for people of color and the act was subsequently reauthorized several times, most notably in 2007. 
    Here is the problem.  The Act may be a victim of its own success.  The original VRA was upheld by the courts based upon the evidence of discrimination that existed in the 1960s.  But the South has changed in many ways since then when it comes to voting.  The registration rates for Blacks is different now than 1964.  But when the VRA was last reauthorized it was done so with congressional findings of fact from the 1960s and 1970s.  Today’s Supreme Court decision struck the act down, arguing that the data used to define which states are subject to section 5 preclearance was out of date.  Effectively, part of the VRA was declared unconstitutional.
    Now Congress should not have been so sloppy in using old data to support the reauthorization of the VRA.  But this Supreme Court cut them no slack.  It ignored that minority voting rights had dramatically improved because of the VRA and because of the threat of pre-clearance.  Without this threat, voter id, gerrymandering, and a host of new practices will go into effect that will chip away at voting rights.  What we are about to see, as I described in 2008 William Mitchell Law Review Article, is the coming of the second great disenfranchisement in American history.  We have already seen that effort in the last few years with voter id, long voting lines, and mythic claims of voter fraud.
    But now couple the VRA case with the affirmative action decision.  This is a Supreme Court that does not seem to recognize that racism continues to exist and that somehow we can live in a color-blind society.  Yet racism does exist.  We see it in housing discrimination and job discrimination.  Wealth disparities across race exist as do disparities exist when it comes to arrests, racial profiling, and sentencing.  We continue to live in two nations, separate and unequal, yet this Court fails to see that.  Instead, its decisions, much like that of the Supreme Court after the Civil War, are gutting civil rights legislation.  The Supreme Court of Justice Roberts is no friend of people of color.  It is not the Supreme Court of Earl Warren, but of Melville Fuller who presided over much of the dismantling of the old Reconstruction and the ushering in of the Jim Crow and separate but equal era.
    But like the Fuller Court, the Roberts Court is also unsympathetic to the oppressed in general.  If the Fuller Court protected the rich and corporations by striking down legislation that sought to regulate trusts, the economy, and unfair working conditions, the Roberts Court has given corporations the free speech rights to make political expenditures.  It has also made it hard to bring class action suit against them.  Think about it–today’s Supreme Court decision gutting parts of the VRA that was meant to protect minority voting rights needs to read along side its Citizen’s United decision.  More rights for corporations, less for people of color. One should also read these election law cases along side the affirmative action case.  For those who think the use of class can substitute for race and affirmative action, the Supreme Court is building a body of law that insulates the haves against the have nots. 
    Overall, what we are learning from this Court is that it is closing the doors of justice to many and it seems to be on the road of creating a political system that is less equal for all, at least when it comes to race and class.

The People v. the Plutocrats and Political Scientists

    Everyone knows that the American political system is supposed to be based on majority will.  True, but only half correct.  It is actually a political system based on majority will subject to limits to protect minority rights.  Our political system was never pure populism and it should not be.  Respect for minority rights should not be viewed as a threat to democracy; instead, as recent debates surrounding ranked choice voting (RCV) demonstrate, the danger comes from the plutocrats and political scientists, both which seem to oppose it because either of fears that it threatens their power or because of the belief that the people are not smart enough to vote this way.
    James Madison  declared in the Federalist Papers (essays written by him, Alexander Hamilton, and John Jay in 1787 defending the ratification of the proposed American Constitution) that "all government rests on opinion."  Ultimately the best feature of popular government is that the people rule.  It is, as the first three words of the Constitution declare, about “We the people.”  Yet while the rule of the people is the hallmark of a representative government or democracy, the worst feature too can be that the people rule.  There is an ugly strain in American politics that begins with the Salem Witch trials that run to slavery, the subjection of women, the McCarthy hearings, and Stonewall.  Fear and prejudice can do nasty things.
    Yet the genius of the American politics (to borrow a phrase from historian Daniel Boorstin) is a constitutional system that seeks to qualify majority rule to protect minority rights.  It is a complex system of checks and balances, separation of powers, competitive elections, and a Bill of Rights that is supposed to accomplish that.   This is what is known as Madisonian democracy.
    The system does not always work.  Progressive era historians such as Charles Beard in his An  Economic Interpretation of the Constitution of the United States contended that the Constitution was  meant to support the interests of the economic elites in the country that were badly hurt by the first American constitution the Articles of Confederation.  The Constitution was written by rich property owners who supported slavery and property rights.  The minority they wished to protect from majority rule, for Beard, were the rich.  The American political system is one designed not by the people, for the people, and of the people, but one in spite of the people. The fact that 225+ years after the writing of the Constitution the profile of the leaders of this country looks much the same as those who designed it speaks perhaps to the bias against the people in American politics.  “We the people,” as former Supreme Court justice Thurgood Marshall pointed out, excluded the majority or the people in 1787 and the history of American politics has been a struggle to give real meaning to that phrase.
    Now how does all this connect back to RCV, plutocrats, and political scientists?  There have been lots of reforms and efforts to give more power to the people.  Perhaps the greatest threat to a democracy is the economic power of the rich and corporations. Former Supreme Court Justice Louis Brandeis stated it well: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both.”  The real battle for political reform in the United States needs to begin with limiting the ability of money and economic interests to affect the political process, This is the story of campaign finance reform. 
    But there are many other worthy political reforms that too are needed such as limits on political gerrymandering and guarantees on the right to vote.  But ranked choice voting too is a worthy reform.  It is a terrific experiment to give voters more choices.  It is based on the simple idea that voters have preferences and we should be able to rank our political choices.  We may have our preferred candidate, a second choice, and maybe a third one.  RCV is supposed to address two defects in the current system we use to vote.  The first is that candidates can get elected with less than a majority of the vote–a simple plurality if it is more than a two-person race.  This has been the scenario in Minnesota with the governor–no governor has received a majority of the vote since 1994.  We have had all minority governors.  Second, the current voting system discourages citizens from voting for third-party candidates less they fear they are wasting their vote.  Thus, there is a good argument to be made that the current way we cast votes is actually counter-majoritarian and that it  discourses people from voting for their preferred candidates.  This is hardly democratic.  Other democracies around the world have experimented with alternative voting systems to address these problems, with RCV as one possible solution.
    Minneapolis’ 2009 first use of RCV was inconclusive.  It was not a great test of it because of a popular mayor.  Few of the other races were decided or seriously affected by RCV.  But 2013 is different.  The mayor’s race could have up to 8-10 candidates and running as the candidate who wants to a second choice might make sense in a crowded field.
    But now some are claiming that RCV needs to be abandoned.  These claims come from plutocrats, those who fear that RCV will change the political calculus and upend their preferences.  They claim that it is anti-democratic, or that it is biased against the poor or people of color, or that it disenfranchises some.  There is no evidence to support any of this.  In 2009 there was a lot of voter error and spoiled ballots but in the end, only one ballot in the entire election was not counted.  The problems seen then perhaps were first time learning curve issues that could be addressed with more  voter education and training.  In my study for Minneapolis on RCV, I raised some concerns but ultimately did not find evidence of discrimination and a survey of voters found that 90%+ liked RCV.  Additionally, if a voting system allows for more choice among voters and strives to produce candidates who get a majority of the vote, is this not consistent with majority rule and serving the people?  Our current election system favors high name recognition and candidates with money.  No guarantee that RCV will break these trends, but anything that works to that end would be good.
    But a second criticism is coming from some political scientists who either do not like RCV or do not understand how it works.  Their central criticism is that RCV demands too much from people. It is hard enough, they say, for people to gather enough information and make choices about one candidate, let alone many and then ranked them.  The political science literature, they say, simply says this is beyond the capacity of the average voter.
    This is an elitist argument.  True, voters are perhaps not as well informed about as many things as political scientists would like them to be, but that does not mean that the people are incapable or expressing their preferences.  Under the current voting system, for good or bad, people make choices and there is no reason to expect they cannot also do so with RCV.  They do that in other countries and who is to say citizens in these countries are smarter than Americans or voters in Minneapolis.
    Finally, some political scientists just do not seem to understand or appreciate how RCV works.  They seem to think that electing someone on a second or third round of voting (assuming no first round winner with 50% + one of the votes) is anti-democratic or that the people will not stand for perhaps a protracted count of ballots.  By now Minnesotans are used to recounts and there has been no rioting in the streets.  Conversely, electing candidates to office who may turn out to be the compromise choice of the majority of voters may in fact prove to be more democratic, majority-enhancing, and prone to encouraging voters to learn and compromise than does the current process. The current voting process seems to favor voting against candidates (instead of voting for someone), selection of extremists, or simply support for the current two major parties even though the evidence increasingly suggests that the current political alignment of them does not match with most voters preferences.
    Overall, RCV may be one tool that can give real meaning to “We the People,” favoring the people over the plutocrats and the political scientists.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.