Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).


The Future

January 17, 2017

What are the lessons of the election for the future of democracy?

First, leaving part of the population far behind is dangerous. Democracy properly gives everyone the right to vote, so everybody counts. When a segment of the population feels ignored, like those who lost their factory jobs, they sometimes revolt. But it’s easier to destroy what they don’t like than to shape a better future. Many, disliking Hillary and the gridlocked Congress, knocked her and Democrats out of their way, but are likely to regret the results unless the Republicans change and start working for the workingmen they’ve ignored.

For a century, Republicans have been fighting the unions of working people, and the legal protections for working people and consumers with increasing success. Can Republicans change and actually side with those same people. That’s the claim of Trump’s empty jawboning. But his methods will do the opposite.

  • He can’t bring coal back now that other forms of energy are cheaper.
  • He can’t bring steel back when other countries produce it for less.
  • There are opportunities in technology, science, education, research, infrastructure, the environment, and retraining but Republicans prefer to count pennies and dream about a world they can’t have back.

Progress requires investment. But Republicans only support tax relief for the wealthy with prayers they’ll do something useful, not complex and destructive financial maneuvers, mergers, buyouts and monopolization – all strategies for beggaring the rest of us.

I don’t expect Republicans to change their colors.

But political campaigns will change, effective immediately:

  • Candidates will repeat slogans like “crooked Hillary” or “wicked Donald” ad nauseum, expecting people to be more affected by repetition than evidence.
  • Accomplishing something will be downgraded to the level of an accidental coincidence because candidates will expect people to be more moved by rhetoric than reality.
  • Appeals to people’s guns and hatreds will no longer seem self-defeating; instead, appealing to people’s basest instincts and group hatreds will be mandatory.

Is there another way?

The economic polities of FDR, President Franklin Delano Roosevelt, stuck for more than half a century and kept this country depression-free until the recent W years.

Roosevelt understood that policies had to be good for everyone. He designed Social Security so that everyone got it, conveniently, through the post office; our checks came in the mail, although now it’s often direct deposit.

His economic policies got everyone back to work – Roosevelt didn’t shrink from hiring people with government dollars to get them working. He didn’t rely on a private market when it obviously wasn’t working. And he took our economy out of the Great Depression and put it on a powerful footing for an economic surge that lasted the rest of the century.

It’s not about jawboning. It’s about figuring out what will actually get people to work. That’s what America got out of the New Deal. What he didn’t do was turn the rest of us into the serfs and slaves of the wealthy. He didn’t celebrate the kind of jobs done only by those too desperate to refuse endless hours for peanuts, in what we used to call sweatshops and labor camps, no matter how dirty, diseased, dangerous, disgusting, illegal or improper.

Let me end by asking what we will also be doing to reign in global warming, protect Americans,  democracy, and the country we were blessed with?

— This commentary was broadcast on WAMC Northeast Report, January 17, 2017.


The Challenges

January 10, 2017

Looking at the New Year, there are two existential challenges that must be dealt with: global climate change and the threat to American democracy.

Global climate change has to be at the top of the agenda because scientists are telling us we are crossing tipping points. What is a tipping point? It is the point where the damage already done makes the process go out of control. You can’t stop a bomb once it starts – the explosion takes over. And tipping points are being crossed. As arctic ice melts, it’s not just that the earth got warmer already, it’s that the highly reflective ice was reflecting heat back into space and isn’t there to do that any more so without humans doing anything more, global warming speeds up. That’s a tipping point. Other tipping points are in the oceans and the food chain. Climate change threatens real doom, a mass extinction, and the creatures to be extinguished this time are us. So go ahead and throw your grandchildren into the fire and then see if you’re allowed into heaven. Folks, if we send our grandchildren to hell you can be sure that we’ll be right there burning with them.

American democracy is at risk because a foreign power has seen that it is possible to manipulate American elections and an American candidate has seen that it is possible to manipulate the people who are prepared to put weapons in the service of their hatred. And if Trump is half as venal as I think he is, and follows the path of demagogues and dictators, he will bribe members of Congress in order to have his way and to stay in office. Even worse, if he follows the pattern of dictators and demagogues, he will try to distract America with a war. I don’t want to think about the mem, women and children who will lose their lives for the glory of Trump!

We are not in good hands. Americans could be put to work to deal with the environment, build and rebuild our infrastructure, handle real threats to our country and to each other. But to save a few more dollars for the richest among us, people will not be put to work doing the things we need and the richest won’t have to share to take care of our country. That’s kleptocracy folks, it’s precisely the kind of behavior that we expect from Putin and the world’s most bloodthirsty dictators.

No, we are not in good hands because the evil in the Manhattan tower is a greedy grabber of money and power, a denier of global warming, corruption, how the economy works, and the common good.

This is a crisis as serious as World War II – an existential crisis. Will America survive, never mind greatness, if we succumb to a dictator? Will humanity survive, never mind flourish, if global climate change makes refugees and cadavers of us all – and who’ll take in refugees then? What will we do to reign in global warming, protect American democracy, and preserve the country we were blessed with?

Remember ye were strangers in the land of Egypt. We will be strangers – on the planet.

— This commentary was broadcast on WAMC Northeast Report, January 10, 2017.

 


The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


On Egos in Skin, Muscles and Race

December 31, 2016

Years ago, when I was working out in a gym, a younger woman was obviously putting more weight on the equipment and doing more and faster reps than I was. I did not know this woman and there was no conversation between us. But as she passed me, she commented that it was OK because I would be stronger on the upper body exercises. When people catch me off guard with a comment like that, I often say nothing, and I don’t think I responded. But I have often wanted to say to her that I don’t keep my ego in my muscles.

Some do of course, people who can do all sorts of things that I can’t, great athletes but also people who move furniture and other heavy work and they have every right to put their egos in their muscles.

But why would anyone put their egos in the color of their skin? I hope everyone has other things to be proud of. That leads me to feeling mostly pity for the people who base their lives on racism, as if their own race is special, not just as good, but superior. That is as shallow as the cosmetics that people apply to their skin.

After the Civil War, Thaddeus Stevens told the House of Representatives that he hoped people would be judged only by their character and ability. By that standard of course, whites, or Caucasians, are all over the map, from killers and thieves to statesmen and scientists. The same is true for other so-called races. If that leaves people feeling like the ground has been knocked from under them, they need to hike onto firm ground, but it isn’t going to be the color of their skin. The people who kept repeating that President Obama couldn’t figure anything out only revealed their own inferiority complex, a struggle they tried to hide by claiming to belong to a supposedly superior white race, and by their inability to see the qualities of an African-American man.

The great Dodger shortstop, Pee Wee Reese, made a very revealing comment when he pointed out that what had really upset some ballplayers when Jackie Robinson broke in to the majors was not the color of his skin; it was his education – Robinson had been a four-letter man at UCLA and came to the Dodgers as a well-educated African-American at a time when most ballplayers had little education. The antagonism of some ballplayers was jealousy concealed as racism.

By the same token, I think what bothered many about President Obama was not just his race, but his accomplishments – an ivy-league education capped by the top position on the Harvard Law Review, a job with a corporate law firm followed by a career in public service. These are accomplishments most of us could envy. But most of us are happy to admire the man without demeaning his obvious accomplishments because somehow his skin color diminishes us. Truly I think racism both masks and reveals the inferiority of the racist. They need to get over it.

— This commentary was broadcast on WAMC Northeast Report, December 27, 2016.


PC

December 31, 2016

I first heard the term political correctness when we were looking at colleges with our daughter. It was a term raised by other parents. I didn’t know what it referred to. Now it’s so common it’s just called PC. I just think of much of it as manners, and at the root of manners is kindness.

Kids tease each other mercilessly. Some of that becomes so concentrated on particular children we call it bullying. Words can, and do hurt.

I admit that sometimes the search for euphemisms seems useless, where the new term simply picks up the meaning of the old leading to a search for still newer ones. But there is a difference between terms that describe a problem and terms that invest that problem with an insult. It is a problem to be born deaf, blind, or retarded. But there are wonderful, decent, loving people with every one of those problems, and many who are very creative and effective.

And in virtually every case, other people can make that condition more or less severe or disabling. Race, religion, national origin, gender, of course, are only problems to the extent that others make them so. But why would we do that when we could reach out to the very folk that others belittle for such nonsensical reasons? Why when we could be helpful? Why when we can make our surroundings more pleasant rather than more hateful?

Isn’t that the message that all of our faiths teach us? Doesn’t gratuitous meanness simply make hypocrites of us all?

Is our culture so competitive that everything has to be turned into rankings, insults, failures, and, to use Trump’s favorite term, losers? I know that people justify that to encourage others to be strong. But what is strength? Is strength simply the ability to survive the taunts of others? Don’t we have enough challenges without taking each other down.

There is another possibility, that our own egos are so tender that we can only feel good by putting others down. That life is just a set of opportunities to insult everyone except our friends, and perhaps those people who would know that our taunts are insincere jokes.

It is interesting that President Obama cultivated just such a hard shell at his mother’s urging because of their experience in Indonesia. But Obama has never endeared himself to the taunters here. Clearly racial taunts and racial disdain aren’t for the purpose of strengthening people – they are designed to hurt, as if by hurting others we justify ourselves.

Just the opposite: hurting others undermines our own claims on this world. We are in the holiday season. This is the time when Christians are encouraged to find peace and good will toward all men. Jews embody that message most strongly at the Passover, closer in time to Christian Easter. Both of us are exhorted to love our neighbors. Similar prayers are in Muslim worship. We all share our origins in the story of Abraham. And one of the most crucial problems of this world is for all of us to find ways to live peacefully together.

Ultimately that is what good manners are about. Peace on earth; goodwill toward men – even though one of our friends was arrested not far away for wearing a t-shirt that said exactly that. Let’s start making this a better world. There are demons enough in this world without demonizing each other.

— This commentary was broadcast on WAMC Northeast Report, December 20, 2016.


Lessons from a Century of Voting Reforms

December 31, 2016

Let’s discuss voting issues today.  Well more than a century of experience has gone into the way we vote. That century should be a source of confidence and concern because none of us is old enough to remember why all the rules are in the statutes.

If you’ve seen the 19th century election day paintings, people came to the polls with pieces of paper and dropped them in the ballot box. That made voting very public. Some states required an open, public ballot. That can be a protection but it also made voters vulnerable. Employers and landowners could and did retaliate economically. As political machines took root, they bribed, threatened and attacked voters to get what they wanted. Parties produced colored ballots that voters carried to the polls. They held their ballots up on their way so everyone could see and then dropped their colored ballots into the box. That satisfied the local machines. And it meant that elections were widely corrupted. Can you imagine a local gang, party operative or factory boss telling you whom you had to vote for and backing that up with beatings and bribes? Unfortunately that’s well-documented, both in big cities and small towns.

The secret ballot was developed around the turn of the 20th century to help solve that problem. It put the names of all the candidates on a single piece of paper so it wasn’t obvious who the voters supported. The idea was imported and known as the Australian ballot. Coupled with it was the development of election machinery, hardware like the lever machines we used in New York for quite a long time. But the election statutes reflect lengthy experience with attempts to defeat the secrecy and the security of the machines. So rules required inspecting, securing and sealing the machines, and identifying the voters at the polls based on permanent books of signatures. We had moved quite far from the chaotic march to the polls with random pieces of paper.

Some lessons from that history: It is easier to control the polling place itself than what happens at home or at work, where people might confront orders backed with threats or bribes on how to vote. But that doesn’t work without a way to verify what you did, and enforcing the secret ballot makes it hard to tell how you voted. Thank heavens most of us now have secure polling places. The secrecy and security of the ballot are essential.

The problem of imposters at the polls has largely been solved. But absentee ballots remain a security concern because of the opportunity for others to see, bribe, trick or intimidate the voter. Obviously there are some people who need absentee ballots, but early voting is a safer procedure for those who can get to the polls.

Now in the age of computers we seem to be trying to reinvent the wheel because we have forgotten what the problems were. But programmers, computer engineers and indeed their professional association, the IEEE, has made clear that touch-screen and internet voting cannot be secured given what we know now. Therefore, given current technology, New York’s choice of scanners with paper ballots is the safest available choice IF we do sample post-election checks of the machines against the paper ballots. We should not shift to a new system given the existing state of knowledge and tools. But sample checks should be universally required to keep the system honest, and Jill Stein is right to demand recounts to check the integrity of the system.

Selfies, on the other hand, are a problem. They create the ability to verify who one voted for. That, of course, is why people take them. But it makes it possible for nefarious groups to bribe or intimidate voters. We developed the secret ballot to protect voters and keep elections clean and honest. We need to stick to it.

— This commentary was broadcast on WAMC Northeast Report, December 13, 2016.


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