If you don’t show, you don’t count

October 16, 2018

If you don’t show, you don’t count.

That’s true in many ways. If you don’t show up in the WAMC fund drive, you don’t count in its survival or in the quality of programming it can carry. And you leave the station’s underwriters less confident of what their efforts can do. Showing up matters.

If you aren’t planning to show up to vote, don’t fool yourself that it won’t matter. Or you might think that you’re sending a message. But the message received isn’t necessarily the same message you think you’re sending. The way politicians count no-shows is that you and those like don’t count. If you’re not likely to show up at the polls, politicians are not likely to spend much time worrying about your problems and how to convince you they are the good guys. They won’t spend much effort trying to help people like you and they won’t waste campaign time trying to explain to you and people like you why their policies matter or the other guys’ policies don’t.

And if the pollsters don’t think you’re going to show up at the polls, that changes what they tell us is likely to happen, and it deepens the discouragement of people like you. Politics won’t help you because not enough people like you show the pollsters and the politicians that you demand to be counted.

In other words, not showing up at the polls has consequences way beyond the election. It generates a vicious cycle. Who is going to care about your generation or your part of the country or your place in the economy if you don’t vote? Voting is the coin of the realm. It’s the currency from which politicians determine what to worry about. It’s what we have to pay to get attention. The other stuff, money, only matters if it can get votes. If your vote isn’t in play, you, your friends, family and others like you are not counted. That’s part of why voting is a civic duty. It’s not just something we do for ourselves, like buying a pair of socks. It’s something we do to set the scales of politics.

Even commentators like myself pay attention. Who’s out there that can get our message? Who’s out there that may run with our message? Who’s out there that needs to be or can be reached and persuaded?

Of course, understanding the issues matters. Many of us are convinced, for example, that Trump is playing for suckers lots of the people who are supporting him for economic reasons. We’re convinced that he’s covering his failures with pittances and throwing the benefits to others. But my point goes way beyond that because even if you make a mistake, the very fact that you got to the polls changes everything. Don’t stay home.

And when you get to the polls, don’t shrug off things that can go wrong at the polls – broken machines, difficulty getting the machines to reflect your choices, long lines to vote at too few voting machines, long distances to get to the polling places you are assigned. Make an objection. Go to a judge. Go to the reporters. Or get to one of the lawyers fighting to make our system cleaner and more democratic. You make a difference by being counted.

— This commentary was scheduled for broadcast on WAMC Northeast Report, October 16, 2018.

 

 

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Anthony Kennedy And The Future Of The SCOTUS

July 4, 2018

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).


What Happened at the Supreme Court Gerrymandering Argument

October 13, 2017

Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.


Organize to Vote

May 2, 2017

All of those who took part in recent demonstrations – the women’s marches, Black Lives Matter and others aimed at protecting civil liberties, immigrants, the vulnerable and the less advantaged – we are not a minority.

But demonstrations aren’t enough. This country is ruled by ballots. Protests matter when ballots threaten. Nonvoters are routinely discounted. So the next step is to organize to vote.

That’s where demonstrations become a major opportunity. Those who marched can be helped to register or they can help others register and vote.

Marchers need to be asked: whether they are registered to vote; whether they are registered at their current address; whether they are registered to vote in the primaries; whether they have been getting to the polls and voting; and whether they know others, in this or any other state, who need help or encouragement to register and vote. Would you get registration forms for others?

Demonstrations can lead to votes in other ways.

Demonstrate at the Board of Elections to make a difference by showing we want to vote, we’re signing up to vote, we’re ready to vote. Let’s show up where it matters.

Demonstrate outside the 100 foot or other state defined zone where electioneering is prohibited, showing and sharing the fact and the joy that we voted, and you voted, and we performed our civic duty for each other and we did it together and we’re celebrating – those are demonstrations that can make a difference.

What’s crucial about the demonstrations we all took part in doesn’t end with the message. That’s the beginning; that’s what got us fired up and brought us together; that’s what made clear our commitment and our shared sense that acting as a people is empowering. But what matters is converting that commitment – the joy, the fire in our hearts and the messages we marched for – into votes.

Democracy depends on what happens at the voting machines. It’s run by votes and the threat of votes. Even campaign contributions are ultimately about votes. Voices are most powerful when they lead to votes. If we vote, we count. If we stay home in disdain because we’re not satisfied, we’re politically irrelevant. Vote. Count. Take back our democracy – for us, for all of us, for the people. Don’t let the moneychangers and the slick talkers take the forms of democracy for their own benefit. We vote; we count; and we celebrate.

Why look at that now? Because the organization that makes voting happen, the organization that makes the voices of the people matter at the polls and on the ballots, all that organization starts way in advance. Because every state has its deadlines. And back before the deadlines, organization is not instantaneous. Let’s create our political snowball. Let’s terrify the politicians with our strength so that they’ll actually have to behave democratically, according to the rules, principles and methods of democratic government.

Wouldn’t that be refreshing!

— This commentary was broadcast on WAMC Northeast Report, May 2, 2017.


Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


Dealing with Citizens United: Second in a Series on Money in Politics

July 12, 2016

Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.

Citizens United[1] angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.

Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.

Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.

Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.

Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.

Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors.[2] Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.

In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.

Next time we’ll look at the proposed amendments.

— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.

[1] Citizens United v. FEC, 558 U.S. 310 (2010).

[2] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).


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