Category Archives: Democracy

2020 General Election, Democracy

Is it defensible, as a matter of principle, to discount the risks of Trump’s reelection ?

“While I doubt any impeachment fans feel equanimity toward a Trump reelection, you have to wonder if they are really thinking through what it means to brush off 2020 concerns as “political” and less important than engaging in a quixotic effort to pretend Trump can be removed from office any way other than at the polls.” — Ed Kilgore, New York Magazine

Here’s the debate: a number of Trump’s critics have argued that the House of Representatives must impeach Trump as a matter of principle and that declining to act out of concern for political consequences constitutes a moral failure. Elizabeth Warren, the first prominent 2020 candidate to support impeachment, makes this argument. (“There is no political convenience exception to the constitution of the United States of America. You know, there are some things are bigger than politics. And this one is a point of principle.”)

Brian Beutler (in sync with Warren) excoriates the “Pelosi standard” for impeachment: that the House should not move forward with impeachment unless the case against Trump is “compelling and overwhelming and bipartisan.”

Beutler (“The Democrats Great Impeachment Abdication”) objects that the failure to impeach

will establish a new precedent in our country that presidents can make themselves untouchable, to the law and to Congress, if only they’re willing to be as selfish and malevolent as Trump. And it will do so at a moment when one of the country’s two political parties has fully embraced an ethos of corruption, greed, and will to power.

Beutler grants that moving toward impeachment in 2019 would not play out as it did in 1974 (in large part because Fox News and the conservative media bubble would shield Republicans from any good faith effort to hold the president accountable) and doesn’t regard acquittal in the Senate as reason to refrain from impeachment. He wants to see a trial! He wants to require Republican Senators to vote for acquittal.

“If Democrats build a solid case, and pass compelling articles of impeachment, the Senate’s rules obligate it to conduct a trial, with the chief justice of the United States presiding, in a manner that will be very hard for Republicans to cheapen.”

Does Beutler believe that Republicans would in any significant way be constrained from cheapening a Senate trial? That conceit is hard to accept. This doesn’t, however, blunt Beutler’s argument that a Senate trial would place the case for impeachment front and center for voters in 2020 “to render the final verdict.”

There is that. But, as Kilgore has argued in the past: “A 2021 Trump in charge is a progressive hellscape.” The consequences of a Trump reelection are highly significant. So significant that it makes no sense (politically or morally) to insist that the House must impeach without more than a shrug at the possibility that this would aid and abet Trump’s reelection prospects.

Beutler argues that the House must impeach because otherwise Democrats have given Trump and Republican carte blanche to commit any outrages they wish (so long as Fox and company can keep the base onboard).

“Under the Pelosi standard no abuse of power is too severe to tolerate if a third of the country can be convinced to overlook it. Under the Pelosi standard, Republicans enjoy a handicap where they and their propaganda allies can short circuit the Constitution through relentless disinformation and culture war nonsense, and never face a referendum on their underlying conduct or character. Under the Pelosi standard, Republicans can openly embrace any impeachable conduct that actually delights their supporters, which means Trump and future GOP presidents will have a freer hand than they already do to sic the Justice Department on their political enemies.”

“… and never face a referendum on their underlying conduct or character.” To reiterate: Beutler wants to compel Republican Senators to vote against impeachment and then to face the voters regarding their choice.

Without impeachment, Beutler argues, “Republicans can openly embrace any impeachable conduct that actually delights their supporters,” and the result is “Trump and future GOP presidents will have a freer hand than they already do to sic the Justice Department on their political enemies.”

In numerous discussions on the web (such as at Daily Kos), a handful of advocates for impeachment will concede that Trump’s reelection is a price they are willing to pay to see Trump get his comeuppance in the House. Most, however, stick to their guns without critically engaging in consideration of whether or not a House impeachment would make a second Trump term more likely. They reject this out of hand or simply decline to think that far ahead. The principle they embrace — Democrats in the House must take a stand – is too important to sully with discussion of real world political consequences.

Beutler, to his credit, has looked ahead. He insists that not impeaching would make future bad behavior by Republicans more likely and would make future presidents “untouchable.”

But this projection isn’t credible. As Kilgore argues, Senate acquittal with reelection offers an even worse prospect than failure to impeach and Trump’s defeat in November 2020:

“Talk about untouchability! A reelected Trump would be rampant, vengeful, and (of course) unrepentant. The Supreme Court and the entire federal judiciary would likely become a confirmed enemy to progressivism for a generation. With one or two more Trump appointees to SCOTUS, reproductive rights would almost certainly be vaporized. Climate change might well become truly irreversible. Trumpism (or something worse) would complete its conquest of one major political party, and the other would be truly in the wilderness and perhaps fatally embittered and divided.”

Although Beutler nods toward a future in which impeachment has a beneficial effect on the conduct of presidents and senators, that’s not (on my reading) the basis for Beutler’s conviction. As he weighs the question of impeachment, and whether to refrain or move forward, Beutler writes:

“The pro-impeachment proposition is that Democrats should build the case, hold the trial, and let Republicans in Congress decide whether they want to shred our shared standards of accountability—to let their votes be counted—instead of doing it for them as they quietly sidestep the question.
In either case, the voters will render the final verdict, but in an impeachment scenario, the question would be laid before them clearly, and will place the entire Republican Party on the hook directly for the crimes they’ve been passively abetting for over two years now. It would also preserve important norms about what kinds of behavior should be impeachable.”

As I read Beutler, he wants a public accounting. And — though he doesn’t say it outright — he implies: consequences in November 2020 be damned. It’s all about principle. Even the last comment about preserving democratic norms is consistent with my interpretation.

Impeachment and acquittal don’t preserve norms. Rather, impeachment (with or without acquittal) represents for Beutler a stance on what norms “should be” in place.

That, in my view, is pretty weak tea. ‘Should be‘ doesn’t move the needle. The way to preserve democratic norms is to be rid of the man and the party that undermine them. Absent Senate conviction, the opportunity to make that happen will be found at the polls in November 2020.

If I’m wrong about this, if Nancy Pelosi is wrong about this, show me how. I’m open to persuasion. If impeachment now makes it more likely that we boot Trump out of office in 2020, show me how.

But don’t — with so much at stake — simply brush aside that possibility. It won’t do — with so much at stake — to embrace acting out of principle, as though this absolves you of responsibility for the real world consequences of your stance. You must, as a moral agent, as a political actor, as a defender of the Constitution, reckon with the consequences.

Democracy

Democratic Sheriff dismantles accountability for deputy misconduct

[August 15, 2019 update: The Los Angeles County Democratic Party is expressing buyer’s remorse over its 2018 endorsement of Alex Villanueva. On August 13, the party passed a resolution calling on the Sheriff “to restore the public’s trust in the Sheriff’s Department.”]

Last year Alex Villanueva was a surprise winner against the incumbent in the race to become the new sheriff of Los Angeles County. I don’t live in LA so I’ve followed this only from afar, but as near as I can tell Villanueva’s main goal in office is to rehire deputies who have been fired for a variety of offenses, including unreasonable force, domestic violence, lying, and so forth. He started off with a couple of rehires, then announced six more, and apparently the total is now up to a couple of dozen or so.— Kevin Drum, “LA Sheriff Really Hates It When Bad Folks Get Fired.“

Drum points to Villanueva’s pledge to kick ICE out of the county jails, which engendered broad support among Hispanic voters, as the key to his victory, then he adds:

So far he’s kind of done that and kind of hasn’t, but in any case his top priority by far has been a so-called “truth and reconciliation” committee whose job is to reinstate fired deputies and make it clear that everyone knows the good old days are back.

As a Los Angeles County voter, I can confirm Drum’s impression. (The article Drum cites, “Sheriff’s chief says she quit over ‘highly unethical’ demand to rehire deputy fired for abuse,” reports a new revelation: a week before Villanueva was sworn in, his incoming chief of staff asked the department’s chief of professional standards to alter retroactively the disciplinary records for Caren Carl Mandolyn, fired after a string of misconduct incidents, because the new Sheriff’s “No. 1 priority” was to reinstate him, which he has done.)

I watched, with interest and dismay, the 2018 campaign for sheriff play out over many months. That campaign connects to issues—such as partisanship, group interests within a broad coalition, shortcuts used by voters, and opposition to Trump and Trump’s anti-immigrant rhetoric and policies—related to the themes of this blog. Without further ado, here are some observations by your fearless editor (who follows local politics mostly by reading the Los Angeles Times and listening to Southern California Public Radio):

The County of Los Angeles Sheriff’s Department is an imposing fiefdom for (whomever happens to be) the Sheriff, who is independently elected and substantially free of meaningful oversight by the County Board of Supervisors (which oversees virtually everything else in county government). LASD patrols unincorporated areas of the county and more than three dozen cities, provides security for the county courthouse (Superior Court), and runs the massive county jail system. (Note: LAPD, the Los Angeles Police Department, which has jurisdiction within the City of Los Angeles, is a separate agency from LASD.)

The Sheriff’s Department is huge, insular, and—both within the county jail and out on the streets—the department has had more than its share of “problem deputies” and a widely discussed history of scandals.  

Jim McDonnell—a former high ranking officer at LAPD, who left to become Chief of Police in Long Beach—ran for sheriff after his predecessor, Lee Baca, who portrayed himself as a reformer, was caught up in a scandal that resulted in a prison sentence (though Baca is out on bail while appealing his conviction). McDonnell won election in 2014 (defeating Undersheriff Paul Tanaka, now in prison) and, while the controversies swirling around LASD didn’t disappear, the sheriff seemed me to be doing a credible job in his first term. 

Sheriff McDonnell was, however, a former Republican in a Democratic stronghold. While the office of sheriff is nonpartisan, and while McDonnell had dropped his Republican registration, 2018 was not a good year for Republicans (or unaffiliated former Republicans) running in Los Angeles County, which has the greatest concentration of Democrats in the nation’s most revved up blue state.

It’s safe to say that McDonnell was unprepared for a competitive reelection bid in 2018. McDonnell had ample funds to conduct a campaign and his endorsements included a number of prominent Democrats, such as L.A. Mayor Eric Garcetti and County Supervisor Hilda Solis, as well as District Attorney Jackie Lacey and the Los Angeles Times editorial board, but—perhaps because going back more than a century, no incumbent sheriff had lost an election in Los Angeles County—he was caught flatfooted. His campaign, which acted as though he could coast to victory, was clearly outmatched by Villanueva’s effort.

Alex Villanueva hustled. He met with community groups, attended forums (which McDonnell often conspicuously declined to attend), and emphatically embraced a reform agenda (while doling out large portions of contempt for the incumbent sheriff). His promises:

  • Reform the LASD by cleaning house, top to bottom, and raising standards across the board
  • Rebuild the organization around the principles of community policing
  • Restore trust that has been lost between the community and the LASD, and within the LASD itself.

Sounds good. Nonetheless, I didn’t find Villanueva to be a credible candidate, because he lacked leadership experience (he had never risen above the rank of Lieutenant after 3 decades in the Sheriff’s Department); he had never held public office, or taken a leadership role in immigration rights, or shown any other evidence of being a trustworthy agent of change; his rhetorical salvos directed at McDonnell and ICE often didn’t seem to bear close scrutiny; and—this was the critical point—Villanueva locked arms with the Association for Los Angeles Deputy Sheriffs (ALADS), the deputies’ union—a tenacious opponent of deputy accountability and implacable foe of reforming the institutional culture within LASD—which bankrolled his campaign.

I wasn’t the only critic who was not persuaded. Steve Martin, former mayor of West Hollywood (one of the cities where LASD patrols) and former president of the Stonewall Democratic Club (ironically, a prominent backer of Villanueva in 2018), who has a long history of advocating progressive reform of LASD, articulated his objections to Villanueva in an op-ed the week before the election. (Although I didn’t see this op-ed last November, it lays out a clear case for opposing Villanueva’s candidacy.)

Martin notes Villanueva and ALADS’s opposition to McDonnell’s commitment to cooperate with the District Attorney’s office in investigating more than 300 problem deputies. He references Villanueva’s attacks on McDonnell’s cooperation with ICE, but notes that this cooperation is governed by California’s sanctuary state law (no matter who heads LASD), that Villanueva’s differences with McDonnel (when examined closely) were sometimes negligible, and that—once in office—there would be significant limits (in contrast to his over the top rhetoric) on what policy changes he could actually bring about.

Most significantly, Martin highlights ALADS’s role in fighting reform:

Over the years it has been obvious that ALADS, the union representing the rank and file deputies, has been a consistent opponent to reform.… A Villanueva administration would give us the same sort of window dressing we saw under the Baca/Tanaka regime, with little meaningful change. Electing a relatively low ranking former deputy backed by a union that opposes deputy accountability, is not a receipt for reform.

I was flummoxed as I watched the campaign unfold. It was understandable why immigrant rights groups and other opponents of Trump’s disgraceful anti-immigrant policies would focus on Villanueva’s criticism of ICE, but what about civil rights, social justice, and prison reform concerns more generally? Deputy misconduct (on a force where out-of-policy misbehavior is widely recognized) was overlooked. Why did the Democratic Party go all-in for this guy?

I believe the answer is that Villanueva ticked off all the right boxes in his campaign. (Just as important: McDonnell’s campaign failed to offer a convincing rebuttal to Villanueva. As noted above: McDonnell’s campaign seemed to think they could ride the advantages of incumbency to reelection, while Sheriff McDonnell even boycotted community forums, instead of meeting and communicating with voters.) Consider:

Villanueva campaigned (mostly under the radar of the L.A. Times) for Latinx support throughout the county. (“He will be the first sheriff to speak Spanish since 1888.”)

He campaigned in African American neighborhoods as well and gained significant support. The Sheriff’s Department has not been much-beloved in many neighborhoods.

He ran as a reform candidate and critic of LASD’s past leadership. (“He was also the founder of an organization dedicated to fighting against the administrative corruption of Sheriff Lee Baca and Paul Tanaka.”)

He pledged to double down on community policing. (“He will establish community policing countywide, hire additional deputies to keep our streets safe, and have a local pipeline to create diversity in the department. He wants to ensure the County Sheriff’s Department is transparent and available for all residents of Los Angeles County.”)

And of course he ran against ICE.

But most of all, he ran as a Democrat:

It has been 138 years since our last Democratic Sheriff. In order to protect our communities and our families we need to elect a Democrat for Sheriff.

This November, help make history. Elect a Democrat for Sheriff.
Vote Democrat for LA County Sheriff. Vote Alex Villanueva.

The image above (a screen grab from Fox 11 News) is from a Villanueva campaign brochure. Though most voters probably couldn’t have picked Jim McDonnell out of a lineup, the pairing of the Sheriff and Trump aimed to make an impression they would remember.

Two factors, in my view, were especially powerful in this campaign: The first, was linking McDonnell to Trump’s immigration policies and pledging to distance the department from ICE. The second, more significant factor was the Democratic Party endorsement. Note that there was no indication on the ballot that Villanueva was a Democrat, since this office is nonpartisan. But his affiliation was conveyed by his campaign at every opportunity: on his website, in his literature, on door hangers, mailed brochures, and social media, in Democratic club voter guides, and in many stories in the press, on radio, and TV: Villanueva was the Democratic candidate for sheriff.

Voters rely on cues to make decisions. Jonathan Bernstein has pointed out that even well informed voters are not “remotely qualified” to make independent judgments about the large number and range of issues they are asked to vote on. That’s why we “take the shortcuts” that are available to us. We look at a range of trusted sources —officials, groups, others who master the nitty-gritty details we have no time or expertise to delve into—to come to an understanding and make decisions. And, as Bernstein notes, among the cues available to us: “The biggest one is party affiliation.”

So, in Democratic Los Angeles County, voters turned out an experienced incumbent to make Alex Villanueva the Sheriff.

On his first day in office the new sheriff, who had repeatedly clashed with his superiors during his 30-year tenure at LASD, immediately removed the top 18 executives in the department and required 500 supervisors to reapply for their positions, creating more questions about Villanueva’s judgment and priorities. More alarmingly, he eliminated two constitutional policing positions created by McDonnell to advise the sheriff on use of force and disciplinary matters.  

Aside from his unconventional approach to management, thus far Villanueva has presided over an LASD that looks pretty much what the department looked like in the bad old days, as a recent headline suggests, “Cop group with matching skull tattoos costs taxpayers $7 million in fatal shooting.” Are the secret societies that deputies join, groups that feature: names such as Banditos, Jump Out Boys, Grim Reapers, and Regulators; matching tattoos (skulls and guns are popular); gang signs exchanged by the deputies; and accusations of links to unlawful behavior on the street and in the county jail—as well as violence, harassment, and bullying directed at deputies who haven’t joined the cliques—a problem that demands a sheriff’s attention? Or, as Villanueva suggested, is the issue no more serious than intergenerational “hazing” (a bonding experience to create esprit de corps among deputies, perhaps)?

At this point, with each new story of the direction that the new sheriff is taking the department, progressive criticism has begun to appear. And, it turns out that critics of Villanueva’s anti-ICE rhetoric and his promise to “physically remove” ICE agents from the jails were right: within federal law and California’s sanctuary law, the Sheriff’s Department has only limited leeway. “While Villanueva has indeed banned uniformed ICE agents from the jails he has replaced them with private contractors, which critics have called a distinction without a difference.”

After Bernstein’s comment on the primacy of party affiliation, he adds: “If the party endorses a candidate, you have a good idea how that person will behave in office.”

That’s where I think the local Democratic Party, and all those Democratic clubs, failed Democratic voters. They didn’t foresee Villanueva’s “main goal in office” (as Kevin Drum put it). Why not? I don’t think they were looking very hard. Not in 2018.

The Democratic Party is a coalition of social groups. The Democratic agenda emerges from the separate agendas of those groups. Sometimes there are disagreements among constituencies, but often there are groups with standing in the party that can lead on issues within their province. Such groups have, in Jo Freeman’s words, “policy sovereignty over a policy territory and can generally designate those issues and positions within it that are to be part of the party line.” The immigration rights groups in 2018 had standing to dictate the party line: unequivocal opposition to ICE.

And, of course, their position was fortified by another Democratic group: the Association for Los Angeles Deputy Sheriffs. ALADS is a public employee union and as such is a part of the Democratic coalition. While the Los Angeles County Professional Peace Officers Association (PPOA), which represents LASD supervisors, endorsed McDonnell, a number of other Los Angeles unions joined ALADS in supporting Villanueva. (Competing endorsements from organized labor didn’t seem to be especially significant in this race.)

Immigration activists took Villanueva at his word. They pushed for a sheriff whom they regarded as committed to their agenda. No other Democratic groups had reason to object to this agenda and furthermore no other issues were as prominent during the 2018 campaign.

All other concerns related to LASD—the use of unreasonable force, domestic violence, abuse of prisoners in county jail, outlaw cliques at LASD stations, and holding deputies accountable for misconduct—were more or less submerged. ICE, on the other hand, was a hot issue. So concerns with ICE carried the day.

It’s a testament to Trump’s extremely hateful policies and the degree of harm he has inflicted that activists were not more wary of Alex Villanueva: a man with no track record to show that he was up to job or that he could be trusted to serve the public faithfully. (It’s also additional evidence of McDonnell’s feckless campaign that these concerns failed to become live issues.)

While I believe that Jim McDonnell is a man of integrity, who was pursuing a genuine reform agenda and would have steadfastly tracked California’s sanctuary law (as Villanueva has done), the local Democratic Party disagreed with me (and convinced most voters as well).

One could, of course, decide that the relatively modest changes vis-à-vis LASD and ICE that Villanueva has implemented outweigh the issue of deputy accountability at the department. It is possible to decide that on balance this is the right choice. Immigrant rights activists may reasonably hold this view.

But the fact that a number of progressives are reassessing their judgments about the new sheriff, as well as their silence or muted objections in 2018 suggest that Democratic endorsements of Villanueva were not grounded on a balancing of interests. Instead, the urgency of opposing Trump and ICE took precedence, precluding a well-grounded evaluation of the man who is now our sheriff.

Democratic dominance in Los Angeles, Democrats’ fierce resistance to Trump and commitment to immigrants, in the absence of meaningful countervailing factors in 2018, has resulted in the election of a sheriff who is squelching reform and accountability at LASD. Public safety and trust in law enforcement are casualties.

Democracy

MSM watch: Column—5 stars; Headline—1 star

Revised July 13, 2019: There is a dissonance between headline and column in Wednesday’s Los Angeles Times.

If you want a clear, accurate summary of the Trump administration’s treatment of kids jailed at our southern border, Doyle McManus’s column is a good place to look. He runs through the whole “cruel, appalling mess.” McManus reviews the reports that establish what’s happening, rips away the cynical rationale for the program, takes administration officials to task point by point, and knocks down Trump’s attempt to blame Democrats.

But that’s not quite what you’d expect from the (print edition) headline, “No partisan excuse for this,” which references two paragraphs in the story—paragraphs number 22 and 23. They read in full:

Finally, this shouldn’t be a partisan debate, even in an election season — but, of course, it is.

“The Democrats’ bad immigration laws, which could be easily fixed, are the problem,” Trump tweeted. On the other side, Democratic presidential candidates have been outdoing each other in supporting leniency for migrants who enter the country illegally.

While the column is an indictment of Trump and administration officials, the headline and two paragraphs out of twenty-five, purport to make it about partisanship. The mainstream media aims for Democrats vs. Republicans, both-sides-are-at-it-again journalism to showcase ‘balance,’ but in this case the motif is hardly more than a fig leaf: no one who reads it will be fooled into thinking this is a story about partisanship in Washington.

Yes, “on the other side” numerous Democratic candidates have been “supporting leniency” in their primary campaigns. But the L.A. Times might as well have sent a reporter to the National Mall to quiz the first twenty tourists on their opinions—because those visitors are as accountable for what’s happening at the border as Democrats on the campaign trail. This is Trump’s doing.

So what’s going on? The headline, which fits comfortably within the journalistic canons of objectivity and balance, seeks to draw in readers from both sides (and may well do so more effectively than a headline that more accurately conveyed the commentary’s substance), while—unlike standard click-bait on the web—even though readers don’t get quite what they expected, the column has the virtue of delivering a solid story.

Democracy, Democrats, Republicans

A primer on the asymmetric political parties in the United States

(Or: ‘How the Republican Party became an insurgent outlier – Part 1’)

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.” — Thomas E. Mann and Norman J. Ornstein

In It’s Even Worse Than It Looks: How the American Constitutional System Collided with the Politics of Extremism, Mann and Ornstein credit political scientist Stephen Skowronek with attaching the term ‘insurgent outlier’ to the GOP, while absolving him of the details of their analysis. By now, the increasing extremism of the Republican Party—long before Donald Trump’s ride down the escalator—has been widely (if not universally) acknowledged. As has a second element of Mann and Ornstein’s critique: that this GOP transformation is the first place to look to explain the highly dysfunctional state of the American political system.

While it’s easy to identify villains in this story—I’ve written multiple posts featuring Newt Gingrich, Mitch McConnell, Lindsay Graham, and William Barr, for instance—I’d like to sketch a structural explanation of how we got here. So, in today’s installment, I’ll begin with a look at the asymmetrical nature of the two political parties, inspired by Matt Grossmann and David A. Hopkins’ book, Asymmetric Politics: Ideological Republicans and Group Interest Democrats, and their account contrasting the Democratic Party, a coalition of social groups, and the GOP, the vehicle of an ideological movement.

The Democratic Party

‘President Franklin D. Roosevelt’s smashing victory in the 1936 presidential election revealed that the American political landscape had shifted. With FDR at its head, the Democratic Party put together a formidable coalition whose main components were lower-income groups in the great cities—African Americans, union members, and ethnic and religious minorities, many from recent immigrant groups—and the traditional source of Democratic strength, “the Solid South.”‘ — William E. Leuchtenburg  

The New Deal coalition, which dominated American politics from 1936 until the election of Richard Nixon in 1968, fractured with the election of Ronald Reagan in 1980. But while the composition of Democratic constituencies changed (most prominently with the loss of the Solid South), the fundamental structure of the Democratic Party did not.

The Democratic Party is a coalition of social groups. Because the groups, and their public policy agendas, are separate and distinct, what they bring to the table may generate conflict within the coalition. Indeed, Democrats have a reputation—going back to the 1930s—for dissension and discord. Unifying many groups with their own interests and ideas is challenge. The process of coming to agreement may be chaotic—and, over many decades, the picture hasn’t always been pretty.

  • “I am not a member of any organized political party. I am a Democrat,” Will Rogers remarked in an era when the New Deal Coalition prevailed.
  • The 1968 Democratic Convention, when the New Deal Coalition was near its end, stands as the prime exemplar of Democratic disunity in my lifetime. (Both 1948 and 1972 were fractious years for Democrats, but neither are remembered for violent street clashes, while the first one, in any case, was before my birth.)
  • A half century after 1968, “Democrats in Disarray,” remains a hoary meme (and click-bait), because disagreements are inevitable when many different interests are crowding under a single tent (and journalists need a hook). The Washington Monthly explored this topic in March, while Crooked / Pod Save America offered fifteen links on the topic last week. A simple Google search will virtually always find current examples of this genre.)

The perennial challenge for Democrats is crafting a coherent policy from the disparate views and interests of the various groups coalescing under the party banner.

Democrats pledge to represent ‘everyday Americans’ (‘the forgotten middle class,’ ‘the people,’ ‘the common man’) with a contrast (often explicit, sometimes implicit) to Republican commitments. The Democratic electoral base is comprised of groups that regard themselves as disadvantaged, and look to specific government policies and programs to provide a measure of social equity.

These constituencies have this in common: they believe that government can help people like themselves.  They believe that public policy is capable of solving problems, of offering benefits, of providing redress for injustices. That notion had little traction in Washington in the decades before FDR came into office. President Roosevelt, and the Democratic Party that he led, empowered government, expanding its role and responsibilities, to ensure that the economy benefited a majority of Americans.

Government can help make people’s lives better, Democrats agree. But because they’re a diverse bunch, their experiences of disadvantage—and specific public policy preferences—are different. How do we unify these groups and their program and policy preferences?

The Democratic Party’s solution is to wrap its arms around these groups, to acknowledge the disadvantages (problems, injustices) of each—and to embrace specific public policies to change things for the better.

The Democratic agenda—as represented in the party platform, political campaigning, legislative priorities, policymaking, and regulatory enforcement—is formed from the collective demands and appeals of the disparate social groups that comprise the coalition. 

Grossmann and Hopkins, who cite Dean Acheson (1955) and a trio of studies from political scientists (1966, 1976, and 1983) making similar observations, put it this way:

The coalitional composition of the Democratic Party has long encouraged party leaders to assemble a policy agenda from the aggregated preferences of the party’s numerous constituencies, courting the mass electorate with a large assortment of concrete benefits favoring targeted groups. Although the particular groups inside the Democratic “big tent”—as well as their specific programmatic demands—have evolved over time, the party’s foundational partisan character has remained constant for decades of electoral history.

This model has the great virtue of matching our familiar experience. A list of Democratic constituencies circa 2019 would include: women, African Americans, organized labor, voters under age 35, … and so on. Consider women, who are far and away the largest social group in the Democratic coalition. Clear majorities of women consistently vote Democratic and have done so for decades. (Discussion of the political gender gap began in the Reagan era. The gap has grown considerably since then, especially in our most recent electoral cycles.)

The Democratic Party is responsive to this voting constituency, as reflected in Democrats’ advocacy of specific policies and priorities to benefit women. Health care—salvaging the Affordable Care Act in response to efforts by Congressional Republicans, egged on by Donald Trump, to repeal it—was at the heart of Democratic campaigns in 2018. Women voters played the starring role in the Democratic victory to take back the House.

Accessibility to health care is high on the list of concerns of most women who vote (or may be tempted to vote) Democratic. Access to reproductive health coverage—and the right to choose to end a pregnancy—is a crucial element of health care. While abortion is fraught politically (particularly late-term abortions) in some quarters, the great majority of women—and especially those who identify as or lean Democratic—do not want to be denied the right to make this choice on their own. Ensuring this right is a Democratic priority.

Democrats embrace many other issues that resonate with women: the Equal Rights Amendment, equal pay for equal work, gender discrimination in employment, family budget concerns more generally, and  sexual harassment and violence toward women are all issues that appeal to the largest group in the Democratic coalition.

The contrast with Donald Trump’s Republican Party couldn’t be clearer. Trump has boasted of sexual assault of women, repeatedly assessed women’s worth based on appearance and sexual attractiveness, and insulted women in misogynistic terms. This hostility has increased Democratic support among women, but that’s only part of the story with the contemporary GOP.

In swing districts and, in many instances, in previously stable Red districts that flipped in 2018, Democratic candidates often presented a clear contrast with Trump and Congressional Republicans vis-a-vis respectful discourse; regard for the rule of law, for democratic institutions, and for coming together—to compromise with the other side, as needed—to enact meaningful legislation to benefit the people that Congress and the President were elected to serve; and concern with the welfare of the nation as a whole, not only of the GOP base. These are hardly ‘women’s issues,’ but they resonated with the largest social group in the Democratic coalition. Women who feel threatened by Trump and the GOP have every reason to regard these issues as critical to their interests and well-being.

Wage Gap

Elizabeth Warren’s pledge last week to women of color at the Essence Festival illustrates how an injustice toward a social group prompts a policy response among Democrats. Begin with these facts: white women earn 77 cents for every dollar that white men earn, while black women earn 61 cents and Latinas, 53 cents. That, for Democrats, counts as a prima facie injustice.

In Warren’s words:

Black women are more likely to be breadwinners for their families and work more than almost any other set of women workers in America, including white women. Yet, Black women are paid less and they are less likely to be able to afford basic human rights like healthcare, childcare and housing.

And her response:

On day one of the Warren Administration I will take a set of executive actions to boost wages for women of color and open up new pathways to the leadership positions they deserve. I’ll start by putting tough new rules on companies that contract with the government — who collectively employ a quarter of the American workforce. Companies with a bad track record on equal pay and diversity in management won’t get new contracts — which gives them a big financial incentive to shape up. I will prohibit companies that want to get government contracts from forcing employees to sign away their rights with forced arbitration clauses and non-compete agreements — restrictions that are particularly hurtful to women of color. I will also take executive action to make the senior ranks of the federal government look like America and strengthen enforcement against systemic discrimination. We need to demand that companies and the government properly value the work of Black women — and hold them accountable if they don’t.

These executive actions are just a first step. . . .

We could inventory every social group/voting bloc that coalesces within the big tent of the Democratic Party and match emblematic concerns and priorities among group members, on the one hand, with commitments and programs that Democrats embrace, on the other, to show piece by piece how the Democratic agenda emerges.

Inevitably, there will be disagreements among the groups. Negotiation, forming alliances, and generating consensus—a give and take, the stuff of politics and practical compromise—will come into play. In this way, the party advances the interests of the groups in its coalition in a process that mostly plays out in the open.

Getting it right can be tricky. In addition to balancing the interests and preferences of multiple groups, the party must look ahead to competitive elections against the Republicans. In such an environment, not every group will be a winner (at least in equal measure with others in the coalition). Similarly, once in office, Democrats are unlikely to enact every item on their agenda; some programs and policies will win out, while others will not. (Barack Obama, the most recent Democratic president, put the expansion of health care at the top of his agenda, while choosing not to elevate criminal indictments of the financial sector executives who crashed the economy.)

While some preferences must be deferred, however, generally everyone with standing in the party is heard. Inclusion is a Democratic priority. There is an expectation that every group’s preferences will be reflected in some measure in the party’s agenda. As Jo Freeman put it (in an article surveying the cultural differences between the Democratic and Republican parties), “The word that would most aptly characterize what Democrats want is ‘fairness.’”

This picture of the Democratic Party (going back roughly eight decades) is more or less the traditional view of how politics works in the United States. It is not, however, the way things work in the contemporary Republican Party.

The Republican Party

The Republican Party is an altogether different beast than the Democratic Party. Ideology reigns supreme in the GOP, which serves as the vanguard of movement conservatism.  Republicans, and organizations within the party, self-identify as conservative. Fidelity to conservative ideology is the organizing principle of the Republican Party. This ideology motivates activists, generates campaign themes and pledges, sustains the demands of the base, and provides a rationale for the party’s governing agenda.

In contrast to Democrats—who, as we have seen, look to government for practical remedies on behalf of social groups experiencing disadvantage—Republicans view proposals in relation to abstract ideological doctrine. The question is not whether a proposal would be efficacious or cost-effective or fair, but instead: Would implementing the proposal be consistent with conservative ideology? As the Republican Party has moved further right in recent decades (and ideological hostility toward government has grown), the possibilities of getting to ‘Yes’ have diminished considerably, especially regarding any proposal offered by Democrats.

In governing, Democrats accept that group interests will conflict, that negotiation and compromise will take place, and that trade-offs and even half measures may result. And that’s okay much of the time: half a loaf is better than none.  Democrats reward leaders who get things done, often even when victories are only partial. Not so with Republicans. Their preference is often all or nothing. They are looking to leaders who will not stray from a rigid party line. The touchstone is conformity to the party’s ruling ideology.

The primacy of conservative doctrine has become increasingly more entrenched in recent years, as illustrated by an observation by Jacob Hacker and Paul Pierson (in Off Center: The Republican Revolution and the Erosion of American Democracy):

As conservative activism has shifted toward national politics, it has also focused increasingly on the recruitment and certification of aspirants to elected office and the monitoring and punishment of politicians once they are elected. Ideological “box scores” are a revealing indicator of the trend. A few decades ago, only a handful of prominent conservative groups (notably, the American Conservative Union, or ACU) assembled ideological issue scores based on members of Congress’s recorded votes on hot-button topics. Today, the ACU’s scores compete with those of such conservative watchdogs as the National Tax Limitation Committee, Americans for Tax Reform, the National Taxpayers Union, Citizens Against Government Waste, the Republican Liberty Caucus, the Christian Coalition, the Eagle Forum, the Campaign for Working Families, the Family Research Council, and the subtly named Center for Reclaiming America. These groups range in size and clout. But even the smallest can often exert considerable power when it can credibly claim to be the arbiter of whether a candidate or elected official is a true believer in a central conservative cause.

Being “a true believer in a central conservative cause” often precludes getting anything done. Republican voters reward elected officials who uphold doctrinal purity, shunning compromise altogether. These voters carry out “punishment of politicians” who fail in this regard. Increasingly, these collaborators get primaried because Republican voters won’t stand for any ideological deviation or accommodation with Democrats. Moreover, often a symbolic ideological embrace, the conspicuous expression of fidelity to conservatism, matters more than the actual substantive outcome of their stance.

House Speaker John Boehner’s tenure was an extended case study of this dysfunctional dance as members of the Freedom Caucus repeatedly chose to one-up their conservative colleagues with expressive displays of ideological purity, even as they sabotaged Republican policy preferences. This self-defeating gamesmanship continued with the elevation of Paul Ryan to the Speakership, as Jonathan Bernstein related during one of the skirmishes:

Democrats only have leverage to negotiate a fairly good deal because Ryan’s Republican conference was split, with Ryan knowing he would never have the radicals’ votes on anything that could even get a simple majority in the Senate. That meant Ryan would eventually need Democratic votes, which meant everyone knew from the start that some Democratic priorities would wind up being fulfilled despite the large Republican majority in the House.

What the Freedom Caucus gets out of it is the chance to win in the Real Conservative game … at the cost of actual conservative policy preferences.

It wasn’t always this way in the GOP.

The Republican Party of the 1950s and 1960s was ideologically diverse in this sense: there were moderate Republicans and even liberal Republicans in the party. They were, like their conservative brethren, Republicans in good standing. No longer. The conservative movement, which seized the nominating apparatus of the Republican Party in 1964, by the Reagan era not only dominated debate and decision making within the party, it had begun to make the party inhospitable to moderate and liberal Republicans. In more recent decades, ritualistic purges through primary elections came to dominate Republican Party politics, but the seed was planted long before.

When William Buckley declared that his foe was “the Liberal Establishment,” Republicans were as much in his sights as Democrats. This included Republican President Dwight David Eisenhower, whose views on both domestic and foreign policies have no place in today’s Republican Party. In 2019, self-identification as conservative is required of all Republicans in good standing — elected officials, candidates, and nominees (at least on the national level).

Conservative Revolution

In the 1950s, Buckley and other intellectuals fused three strands of ideology into a central, overarching conception of conservatism (the ‘three-legged stool’). These beliefs included commitment to (i) free markets, (ii) traditional morality, and (iii) a combative foreign policy. The conservative movement embraced the fusion of this trinity, which came to represent Republicans’ reigning ideology.

I didn’t mention the word ‘liberal’ in my description of the Democratic Party. While liberal intellectuals are among the party’s constituencies, and many party activists and voters identify as liberal, most Democrats self-identify as moderate or conservative (though the number of self-identified liberals in the Democratic Party has grown in recent years). People regard themselves as Democrats because of social identity, group empathy, and specific issues embraced by the party. Regarding oneself as liberal is not a defining characteristic of Democrats.  

Republicans, in contrast, view politics through an ideological lens: political conflicts reveal a fundamental divide between conservatism and liberalism. And a visceral opposition to liberalism is embedded within conservative ideology.

While it’s possible to describe contemporary conservatism (and the three-legged stool) without appeal to liberalism, doing so would leave something out. Grossmann and Hopkins quote George Nash’s observation (in The Conservative Intellectual Movement in America Since 1945), regarding the fusion of three strands of ideology into one, that the free-market, foreign policy, and traditional morality conservatives were united by their opposition to liberalism:

To the libertarians, modern liberalism was the ideology of the ever-aggrandizing bureaucratic, welfare state. If unchecked, it would become a totalitarian state, destroying individual liberty and private property—the wellsprings of a prosperous society. To the traditionalists, liberalism was a disintegrative philosophy which, like an acid, was eating away at the ethical and institutional foundations of Western civilization, creating a vast spiritual void into which totalitarian false gods would enter. To the Cold War anti-Communists, modern liberalism—rationalistic, relativistic, secular, anti-traditional, quasi-socialist—was by its very nature incapable of vigorously resisting an enemy on its left.

The authors also quote Nicol Rae (The Decline and Fall of Liberal Republicans), who crisply characterizes conservative ideology in these words:

In a crude form, their ideology can be stated as follows: Something is rotten in the American body politic; that rottenness is due to liberalism; and only by returning to the economic, moral, and foreign policy precepts of America’s past can the promise of America be redeemed.

Conservative ideology at its heart begins with an unequivocal aversion to liberalism. This aversion is baked into the conservative movement. Although most Democrats have not embraced liberal ideology, Republicans view the Democrats as liberal standard-bearers. Republicans see political conflict as thoroughly ideological and their critique of Democrats is consistent with that stance.

Democrats have a practical, instrumental view of politics. The focus is not ideological, but pragmatic. But whether or not Democratic voters (and officials) identify as liberal, the Democratic Party looks to government to right wrongs and to offer a helping hand. The Republican view of Democrats as their ideological opponents is accurate insofar as Democrats seek public policy solutions to social problems, while Republicans harbor mistrust of government and oppose expanding its reach.

Having it both ways

Grossmann and Hopkins point to the contradictory views of voters as a reason the United States has settled into a dynamic with a fundamental asymmetry (which they characterize as a “foundational imbalance” and “mismatched nature”) between the two political parties. A majority of Americans can be found to affirm an ideological commitment to traditional American values (and suspicion of government) in agreement with conservative Republicans, while at the same time more than half support an array of specific domestic programs (aka left of center Democratic policies) that offer practical benefits. In other words, most Americans are at once ideologically conservative and operationally liberal. (One version of this inconsistency is to cling to cherished benefits, while casting shade on government, the source of the benefits: “Keep your government hands off my Medicare.”).

Both parties play to their strengths in political battles: Republicans sound abstract conservative themes, such as the virtue of limited government, while Democrats affirm the social identity of their coalition partners and tout an array of specific programs that benefit them.

Because most domestic policy programs are highly popular (especially big, expensive programs), while most voters also embrace conservative rhetorical sentiments (such as demanding limited government), the governing majority can shift back and forth, depending on how voters with these contradictory attitudes lean from one election to the next.  

The asymmetry between the Democratic and Republican parties results in a cascade of practical implications. I’ll explore various consequences in future posts.

(Image: Thomas Nast, Stranger things have happened.)

Democracy, Short & Sweet ... Short & Sour, Tribalism

Have we seen the last “vivid display of willed gullibility” from John Roberts?

Quote of the day on the Chief Justice’s decision “in at least one case, that he would no longer play rubber-stamp judge …”:

“I understand that Roberts is not a secret moderate. He’s a lifelong conservative with far-reaching legal goals of rolling back civil-rights, economic, and environmental gains. But if the chief justice is sick and tired of being treated like Francisco’s idiot intern, the possible ramifications are huge. If he were to begin taking account of facts—taking this administration at its word when it tells the world of its plans to punish Muslims, torment immigrants, disfranchise its opponents, cripple Congress, and silence its critics—then there may be more times when the chief says, in so many words: Stop lying. Do the job right or give it to someone who can.” – Garrett Epps

Well, this could happen.

(Image of Roberts from wikipedia.)

Democracy, Donald Trump, Off the Rails, Short & Sweet ... Short & Sour

The President Jokes with Putin about Russian interference in the election

“Donald Trump joked with Vladimir Putin about getting rid of journalists and Russian meddling in US elections when the two leaders met at the G20 summit in Japan.
As they sat for photographs at the start of their first formal meeting in nearly a year, the US president lightheartedly sought common ground with Putin at the expense of the journalists around them in Osaka. . . .

When journalists asked Trump just before he left for Japan what he would like to talk to Putin about, he told them it was “none of your business”. As they sat alongside each other, a reporter asked whether he was going to tell Putin not to meddle in the 2020 election.
Trump said: “Yes, of course I will,” drawing a laugh from Putin. Then, without looking at Putin, Trump said briskly: “Don’t meddle in the election, please,” and then repeated the phrase with a mock finger wag as Putin and the US secretary of state, Mike Pompeo, smiled broadly.” – The Guardian

Democracy, Republicans

The Long Game: SCOTUS imperils California’s authority to protect the coast

A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.

The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government.  The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.

The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.  

The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.

The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.

David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.

In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)

On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.

Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.

That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.

This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.

Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.

In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:

“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”

In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’

She referenced Breyer’s dissent in Hyatt:

Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”

While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.

This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.

Democracy, Democrats, Donald Trump

Tick tock, tick tock – Why hasn’t the House staged televised hearings with live witnesses?

Well, finally: “In their attempt to move forward with impeachment, the Democrat-led House Judiciary Committee is reaching way back, calling Watergate star John Dean to testify on June 10.”

It’s a beginning and long overdue.

Never mind what you think about impeachment, or Nancy Pelosi’s resistance to it, or optimal timing for it, or initiating impeachment proceedings, or any other permutations. Why haven’t we had televised hearings with live witnesses in the House of Representatives every week since Bill Barr released his redacted version of Robert Mueller’s report? There are scads of people whose testimony the Trump White House can’t possibly block – including many B-List folks who aren’t household names, but (as in the Watergate hearings of another era) can advance the narrative of presidential wrongdoing. (John Dean is fine, as a warm-up, though the Mueller Report mentions a cavalcade of others who have a closer connection to Donald Trump.)

The absence of hearings up till now represents Congressional malpractice. Numerous commentators have highlighted the importance of telling a story through House hearings:

June 6 – Jonathan Bernstein (“Stop Obsessing About Impeachment Poll Numbers“):

What the House can do is relentlessly dramatize and amplify the story that the Mueller report tells, along with other Trump impeachable malfeasance and scandals. So far, they haven’t really done that effectively.

June 4 – Josh Marshall (“Thoughts on Impeachment“):

The most effective action the House can take is to investigate the President’s wrongdoing and bring it before the public and hold the possibility of impeachment in the offing as they bring new evidence to the public about the President’s misrule.
But here’s the thing. . . .
If the most aggressive stance toward President Trump isn’t impeachment but aggressive investigation – which I firmly believe – then you actually have to be aggressive and show you’re being aggressive.

June 2 – Francis Wilkinson (“Before Impeachment, Democrats Must Win the War for Truth“):

Democrats . . . should methodically highlight the truth of Trump’s ethical and policy failures, day after day, in hearings, reports, news conferences and events in Washington and around the country. And then they must get up each succeeding day and do it all over again.

May 30 – Donna Edwards (“Democrats need to repackage the Mueller report for TV“):

It’s time for Democratic leaders to repackage Mueller’s findings in a form that will be more readily digested by the American people. Unfortunately, the current approach of investigations in no fewer than six committees, multiple subpoenas, innumerable court proceedings and White House delay tactics just creates more confusion. How can the United States focus on the findings if a Democratic House will not singularly focus its investigations? From the cheap seats, it appears that there may be too many balls in the air.
It is no surprise that few Americans are talking about the report over the water cooler. The only voice that breaks through with a consistent (if mostly untrue) message is President Trump’s, especially absent an alternative narrative. Democrats should look at this differently. Mueller has given Democrats cover to present that narrative and proceed with impeachment as the appropriate process under the Constitution.

May 29 – Benjamin Wittes (“Mueller Bows Out: What Does Congress Do Now?“)

Congress’s current strategy is an incoherent muddle. . . .
The better approach, in my view, is to focus on live testimony from witnesses who supplied the material about President Trump’s conduct that Mueller made public in the report—mostly but not exclusively in Volume II. There are a lot of these witnesses. Congress could easily hold weekly hearings that would be riveting television. Who knows? They might even get what the president most values in the world: good ratings. The goal would be to focus public attention on the president’s abuse of the intelligence and law enforcement communities and his individual conduct with respect to Russia. Such hearings could develop new information. They could also enrich our understanding of the existing factual record. They would serve to publicly validate and elucidate Mueller’s findings and, critically, to shift those findings from the voice of Mueller himself to the voice of the president’s closest aides. Perhaps most importantly, they would create a sustained vehicle for focusing on Trump’s conduct—which is, and needs to be, the central issue.
If I were in charge of the House judiciary committee, a wide array of witnesses named in the report would receive an invitation for public testimony—and any of them who did not immediately agree to appear would receive a subpoena in short order. The idea would be to bring the Mueller report to life and, along the way, to establish clearly in case law the ability of Congress to conduct such oversight hearings against a recalcitrant executive.

May 22 – David Corn (“Have the Democrats Blown the Trump-Russia Scandal?“):

For five months now, the Democrats have held power within the House. While passing legislation to address voters’ needs and while battling to enforce subpoenas, they could also be telling the story—with hearings featuring witnesses who could present compelling accounts that have a chance of grabbing the nation’s attention for at least a few minutes.
Three percent of Americans say they have read the Mueller report. That number is probably high. Yes, many have seen the headlines and the news accounts summarizing the report’s findings and allegations. But there is something visceral about a well-run hearing. It is a different way of presenting information to the citizenry. (John Dean’s testimony during the Watergate hearings continued for days and captivated the nation.) Congressional hearings could be used to convey the basics of the Trump-Russia scandal that have disappeared in the ceaseless shuffle—and been shoved aside by the debates over collusion and obstruction.

May 5 – Jonathan Bernstein, who has been at it a while (“Impeaching Trump Would Constrain Democrats Too Much“):

The “before” question is whether to continue investigations and hearings as part of regular House oversight, or as part of an explicit impeachment inquiry.
Are there advantages with the latter? Not really, I don’t think. Whether it’s called impeachment or not, what matters at this stage is whether Democrats can find ways to publicize Trump’s malfeasance, in hopes of both hurting Trump’s popularity and of finding new allies among any weak Trump supporters among congressional Republicans.

April 22 – Norman Ornstein (“Impeachment Is Not the Answer. At Least Not Yet“):

What we need is for the Judiciary, Intelligence, and Homeland Security Committees to conduct a series of deep dives into the areas of communication and coordination between Trump and his campaign with Russians and their surrogates, such as WikiLeaks; the multiple categories and areas of obstruction of justice that Robert Mueller outlined; the threats to our intelligence operations and our justice system from Trump and his operatives; and the moves by Russia to interfere in and influence our elections used by Trump and unchecked by Republicans. Other committees, such as Ways and Means and Banking, need to be ready to do the same thing as more information emerges from the SDNY and the New York attorney general, among others, about Trump’s financial dealings, including with the Russians, and about Russian money laundering. The witnesses need to include Mueller and Rosenstein, of course, but also the range of figures mentioned in the report, and also a range of experts in areas such as ethics, constitutional violations, intelligence operations, and election administration and security.
Democrats need to stage and coordinate hearings across committees and subcommittees, to make sure they do not overload Americans’ ability to pay attention. Most important, they need to structure the public hearings in a dramatically different way than usual. Each committee needs to use experienced counsel—a good example might be former U.S. Attorney Preet Bharara—and limit, if not abandon, opening statements, except from the chairs. No five-minute rounds of questions going down the line of every committee member, leading to utterly disjointed discourse, making it easy for hostile witnesses to evade, filibuster, or otherwise avoid follow-ups and get through a five minute period, which is then followed by a five-minute breather with an ally on the Republican side, and then another five minutes from the next member of the panel that may have nothing to do with the previous round of questions.

(Photo of John Dean: screengrab.)

Democracy, Republicans

Reversal of Roe v. Wade is only a sliver of the agenda for the activist SCOTUS majority

It’s not just Roe v. Wade that is threatened by a Supreme Court with two Trump-appointed justices. Two Supreme Court cases in the news this week, and the willingness of the activist majority to abandon conservative judicial principles and impose their vision of the Republican platform on the country, presage devastating rulings ahead for environmental protection, health and safety rules, consumer rights, union-organizing, restraining monopolies, and all manner of regulation that seeks to benefit working- and middle-class folks as opposed to big business. The U.S. hasn’t seen such a conservative and aggressively activist SCOTUS majority since before the New Deal.

CASE #1

“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.” John Paul Stevens, May 14, 2019

In District of Columbia v. Heller, Antonin Scalia’s 5-4 majority opinion struck down a law banning possession of handguns and requiring other firearms to be stored unloaded or locked. The Court’s decision rejected the clear language of the Constitution (which recognized the right to bear arms to sustain well-regulated state militias); Colonial history, when firearm regulations were in place before adoption of the Constitution; a history of uncontroversial federal restrictions on firearms (including a 1927 ban on mail delivery of handguns and a 1934 law outlawing possession of sawed off shotguns and machine guns); and the unanimous 1975 Supreme Court ruling, United States v. Miller, which deferred to the plain language of the Second Amendment, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

“One of the greatest pieces of fraud”

Stevens writes:

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

It is critical to see what was going on here: The court majority in the Heller case was intent on embracing not a strict reading of the text, or original intent, or legislative history, or a common sense remedy to an acknowledged social problem; instead, the 5-4 majority adopted a historically anomalous interpretation of the Second Amendment, created and espoused in recent decades by the conservative legal movement and powerful allies of the Republican Party, chiefly the National Rifle Association.

Long story short: NRA hardliners in the ’nineties elevated Wayne LaPierre to run the outfit, embraced survivalists and other fringe groups, and transformed the organization from a sportsman’s group to an advocate for militias that opposed “jack-booted government thugs” (ATF agents) and stockpiled arms in anticipation of a fight against federal tyranny. This mutation proved to be highly profitable for the nonprofit organization (and for LaPierre).

Stare Decisis

For former-Justice Stevens, stare decisis (a Latin phrase meaning ‘to stand by things decided’), which is the legal principle that the judiciary will respect precedent, was sufficient to justify upholding the District’s gun regulations. As SCOTUS decisions in previous decades have affirmed [Payne v. Tennessee], stare decisis is “a foundation stone of the rule of law,” which “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Stare decisis alsoreduces incentives for challenging settled  law, saving parties and courts the expense of endless relitigation.

Stevens concludes his essay with mention of mass shootings – at schools, music venues, churches – that now occur with tragic regularity. The 5-4 Heller majority – in rejecting the conservative legal principle, stare decisis, and imposing a viewpoint embraced by Republican Party special interests, chiefly the NRA – made these shootings inevitable by prohibiting sensible regulation of firearms.

CASE #2

Last Monday, another 5-4 Republican majority rejected stare decisis in Franchise Tax Board of California v. Hyatt, a decision (related to a dispute between California and a former Californian, who now resides in Nevada) that hinged on the issue of state sovereignty. Stephen Breyer’s dissent (on behalf of the four Democratic justices) sounded a warning, which has been widely interpreted as anticipating the majority’s willingness to reverse Roe v. Wade. Leah Litman, writing in the New York Times, sounded a common refrain:

… Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bells about Roe, particularly as states enact draconian restrictions on abortion.

I agree with Litman and Breyer: the Roe decision is highly insecure with the five Republican justices that form the court’s majority. Reversing Roe would have cataclysmic effects on women’s reproductive rights in much of the country. For evangelicals and others who would like to put women back in their places (circa the 1950s, the ‘Again’ in Trump’s MAGA), erasing Roe would be a giant step in that direction.

But – without diminishing the repercussions for women – reversing Roe is only the tip of the iceberg.

Because Roe was so fundamentally consequential and, as a major driver of Republican votes, continues to be so consequential, it is often a focus of discussions about the Supreme Court. But with the focus on Roe, there may be a significant failure to appreciate how broad and comprehensive the conservative legal movement’s attack on settled law has become.

California cautionary tale circa 1986

In an illustrative case in 1986, California voters recalled Chief Justice Rose Bird and two associate justices of the State Supreme Court. Voter anger over the death penalty – Bird and company had overturned more than 60 death penalty verdicts, while upholding none – powered the successful campaign. But the campaign was lavishly funded by agribusiness, the banking industry, and other special interests who sought to squelch the most pro-worker, pro-consumer high court in the country. It worked. The court, after the recall, became much more attuned to the interests of business and corporations.

The controversy over abortion has – for decades – been the high profile campaign issue that the death penalty was in California thirty years ago. But now, as then, that’s hardly all that is at stake. The bulk of the GOP donor class is more intent on quashing regulation, lowering tax rates, suppressing worker rights, and keeping consumers at bay, than reversing Roe. They are seeking a compliant federal bench. Right to life vs. right to choose is a more salient issue for most voters, than (for instance) rulemaking and enforcement at the Consumer Financial Protection Bureau, so Roe has been the focus of debate about the courts.

Movement conservatives shun conservative legal principles

In the Hyatt case, like Heller, the 5-4 court majority did not rely on conservative legal principles, or a close reading of the Constitution, to arrive at its decision.

Breyer’s dissent criticizes the majority’s assertion that the Constitution changed, in a basic way, the nature of state immunity. “The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts.”  He continues, observing the vague conservative appeals to what is “implicit” in the Constitution, “embedded … within the constitutional design,” and reflected in “the plan of the Convention.” But – Breyer notes – concepts like these are “highly abstract and difficult to apply,” “invite differing interpretations,” and “suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.”

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

In other words, there is no convincing path from textualism or originalism – the conservatives’ purported means of interpreting the Constitution – to the conclusions the majority reaches.

Breyer, like Stevens, then presses his argument about stare decisis (a conservative legal principle virtually by definition): unless there is a compelling reason to overturn a decision, then jurists should refrain from doing so. “While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.”

And Justice Breyer makes clear that his concern is much broader than this single case. It is one thing to reverse a case because it proved to be impractical, legally obsolete, or when changing facts have made it impossible to apply or justify the old rule. But:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Constitutional conservatism – divinely inspired traditional culture

In 2014, Ed Kilgore expressed concern at the Republican Party’s “hellish momentum” toward increasingly extreme positions, as ‘establishment’ Republicans adopted the views of the Tea Party. “There’s remarkable near-unanimity in favor of hard-core positions on fiscal matters, the economy, cultural issues, and immigration–and above all a violent resistance to the idea that government can play a positive role in national life other than at the Pentagon.”

And he specifically mentioned the conservative movement’s embrace of “constitutional conservatism.”

… I do worry that the still-emerging ideology of “constitutional conservatism” is something new and dangerous, at least in its growing respectability. It’s always been there in the background, among the Birchers and in the Christian Right, and as an emotional and intellectual force within Movement Conservatism. It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of “traditional culture” is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or “foreign” delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America. … Some of the moneyed interests bankrolling the GOP and the conservative movement probably just view all the God and Founders talk as a shiny bauble with which to fool the rubes, but others–notably the Kochs–seem to have embraced it as a vehicle for permanent domination of American politics.

A very conservative, aggressively activist Supreme Court

On July 2, 2018 Erwin Chemerinsky, Dean of the UC Berkeley School of Law, in a more scholarly analysis of the Supreme Court (following the 2017-2018 term), focused on the activism of the conservative majority and its fealty to the agenda of the Republican Party:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

…

What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”

The dean cites four cases from the Court’s last term decided 5-4 that “reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution.” They are:

  • Janus v. American Federation (overturning a 41-year-old precedent  to end “fair share” contracts, which required employees at union shops, who declined to join the union, to pay a portion of union dues that covered collective-bargaining activities)
  • National Institute of Family and Life Advocates v. Becerra (striking down the California FACT Act, which ensured that religiously-affiliated crisis pregnancy centers, disguised as medical centers, provided women with complete information regarding their options – including access to reproductive health services)
  • Trump v. Hawaii (reversing an appellate court ruling that invalidated Trump’s travel ban)
  • Epic Systems v. Lewis (rejecting employees’ rights to class action suits or class arbitration, contrary to the 1935 National Labor Relations Act, which was upheld by SCOTUS in 1937)

Conservative dreams of a 21st century Lochner Era

For most of our history the Supreme Court has been a powerful conservative – anti-democratic (small ‘d’) – force to suppress change. (The Warren Court of the ’fifities and ’sixties was an anomaly, as was SCOTUS well into the ’seventies, when Roe v. Wade was decided.) During the Lochner Era (which scholars generally agree began by the last decade of the 19th century and ended in 1937), the Supreme Court struck down hundreds of federal, state, and local laws – deemed to interfere with “freedom of contract” /economic liberty /the free market – enacted to protect workers and consumers.

Lochner v. New York (the case that gave the Lochner Era its name) struck down as unconstitutional a labor law that limited bakery workers’ hours to 10 hours a day and 60 hours a week.  During this era, the Court struck down child labor laws, minimum wage laws, bans on “yellow dog” contracts, other laws to assist in union-organizing, and legislation to regulate industry, and – of course – significant New Deal measures introduced by Franklin Delano Roosevelt in his first term as president.

Chemerinsky predicts that the activist justices that form the Court’s majority – “whose jurisprudence is based on the Republican platform” – will vote to overrule:

  • Roe v. Wade,
  • affirmative action, and
  • the exclusionary rule when police violate a suspect’s Constitutional rights.

He mentions the likely suppression of LGBT rights and rejection of equal rights challenges to partisan gerrymandering as well.

Chemerinsky doesn’t venture a prediction about decades of rulings since the New Deal permitting the regulation of business. But a number of libertarian legal scholars and Senator Rand Paul have argued that Lochner v. New York was correctly decided, because it freed business from the regulatory state.  

Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, “Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically.”

The immediate future of the Supreme Court – and of U.S. District and Circuit Courts – will more closely resemble the Court of the Lochner Era, than the Warren Court (and several that followed closely behind, when Republican-appointed justices – Stevens, Souter, Powell, O’Connor, and Kennedy – at least occasionally sided with the liberals). The authority of many federal agencies that make and enforce rules – the Environmental  Protection Agency, the Federal Communications Commission, the Federal Trade Commission, the Security and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Election Commission … to list only a handful – may be challenged by an activist Supreme Court majority. We will be living a nightmare for years to come.

(Photo: wikipedia.)

Democracy, Donald Trump, Off the Rails, Republicans

Adam Schiff: “You might say that’s all OK, but I don’t think it’s oK.”

The Barr coverup continues – and Republicans pretend that the Barr letter is the Mueller report, while Barr declines to release the Mueller report. Adam Schiff cites a litany of bad behavior – all of which is on the public record – by Trump campaign officials and advisors:

  • the Russians offered dirt on the Democratic nominee
  • the President’s son did not call the FBI; he said he would love the help the Russians offered
  • the President’s son, son-in-law, and campaign chairman Paul Manfort took the meeting and concealed it from the public
  • a year later, they lied about it and the President is helped dictate the lie
  • the campaign chair offered information on the campaign to a Russian oligarch in exchange for money or debt relief, and offered polling date to someone linked to Russian intelligence
  • the President called on Russia to hack his opponent’s emails and the Russians attempted later that day to hack into her campaign
  • the President’s son-in-law sought to establish back-channel communications with the Russians
  • an associate of the President contacted the Russian military intelligence agency through Lucifer 2 and wikileaks
  • a senior campaign official was instructed to find out what dirt that hostile agency had on Trump’s opponent, and
  • the National Security Advisor-designate secretly spoke with the Russian ambassador about undermining U.S. sanctions and lied about it to the FBI

“You might say that’s all OK. You might say that’s just what you need to do to win. But I don’t think it’s OK.

I think it’s immoral. I think it’s unethical. I think it’s unpatriotic. And, yes, I think it’s corrupt and evidence of collusion.”

Representative Schiff observes that he has always distinguished between this bad behavior and proof beyond a reasonable doubt of conspiracy. And he expresses complete confidence in Robert Mueller and the Mueller report.

Republicans on the House Intelligence Committee are pretending that the Barr letter is the Mueller report and that collusion is off the table. Yesterday they issued a letter demanding that Adam Schiff step down as chairman.

Meanwhile, Donald Trump, also pretending that the Barr letter is the Mueller report, declared victory at a campaign rally and thundered: “After three years of lies and smears and slander, the Russia hoax is finally dead. The collusion delusion is over.”

As noted in my previous post, the Barr letter appears to have been designed to give cover to Republicans’ falsehoods regarding the Mueller report. So far things have worked out as designed. And the coverup continues.