All posts by Sheila

The Three “I”s

Let’s deconstruct the issue of economic growth.

If there is one thing all politicians support, at every level of government, it is growing the economy. Unfortunately, few of those political figures recognize the economic effects of their other policy preoccupations. Here in Indiana, that disconnect was on vivid display during then-Governor Mike Pence’s effort to privilege religious discrimination against LGBTQ citizens; it was equally obvious in North Carolina in the wake of the so-called “bathroom bill.”

It’s somewhat less obvious–but no less consequential–in Trump’s efforts to slash the budget and to drastically reduce immigration. A recent report from the Brookings Institution considered what it would take to achieve 3% growth in GDP, if that level of expansion is even possible: “There are three I’s that can do this: immigration, infrastructure, and investment.”

Infrastructure is the most obvious: not only does America desperately need to improve our deteriorating roads and bridges, not only do we need massive improvements to rail and public transportation, but cities and states across the country need the jobs a comprehensive infrastructure program would generate. As the Brookings Report notes,

Infrastructure jobs are disproportionately middle-class (defined as wages between the 25% and 75% percentiles, so this is the real middle-class and not the upper-middle class; there is no Dream Hoarding going on here).

Investment is harder to discuss, because far too many lawmakers fail to distinguish between investment and  routine expense. Conceptually, however, most of us understand that we must invest in order to grow–it’s the difference between payments on your home mortgage and the amount you spent at that fancy restaurant. Trump’s budget may not reflect that understanding, but many lawmakers do recognize the difference. Unfortunately, many self-identified “fiscal hawks” do not.

We need to increase our nation’s investment in research, development, and people. The federal government’s investment as a share of total research and development has fallen to multi-generational lows. Increasing the federal government’s investment will not bust the budget. Currently, the federal government’s entire investment in R&D (as measured by the OECD) is equal to only about one-tenth of our nation’s defense budget. Investments like these have proven track records of increasing economic growth.

When it comes to the importance of immigration to economic growth, however, American xenophobia is far more influential than economic reality.

Comprehensive immigration reform, such as the bipartisan legislation which passed the Senate in 2013 (Schumer-Rubio), would increase our nation’s work force, bring economic activity out of the shadows and into the mainstream, increase our nation’s economic and physical security, and boost our GDP. One estimate sees an increase in $1.5 trillion in GDP cumulatively over the next decade, as compared to the status quo. That same study contrasts with the deportation-only policy that appears to be favored by some in the Trump Administration, which would reduce economic output by over $2 trillion.  Even scholars from the CATO Institute argue that immigration reform could be used to boost GDP, with an earlier estimate of an increase of over 1.25% of GDP.

As another Brookings report notes,

President Trump claims that legal immigration levels should be cut in half and that greater priority should be placed on those with high skills. Both of these claims fly in the face of census statistics that show that current immigration levels are increasingly vital to the growth of much of America, and that recent arrivals are more highly skilled than ever before. Current immigration is especially important for areas that are losing domestic migrants to other parts of the country including nearly half of the nation’s 100 largest metropolitan areas.

Well, that’s what happens when you elect a man who has no idea how the economy works, and for whom facts are meaningless…

 

 

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.

GOP R.I.P.

There is more than one way for a political party to die.

If you ask people of my vintage–the party volunteers, candidates, office holders and party functionaries who populated the Indiana Statehouse and the Hudnut Administration’s sixteen years in City Hall–the GOP we worked for and supported is long gone. We don’t recognize the party that bears the name.

The death of a political party via this sort of transformation into something much darker and different is less visible than the sort of death experienced by the Whigs, but it is no less real.

For the last two decades, at least, I’ve been predicting a split between the GOP’s “business wing”–those we used to call Country Club Republicans–and its far-Right fringe. (Helpful hint: don’t ever bet money on predictions I make; I’m notoriously wrong about nearly all of them.) It seemed inevitable that members of the sober business community, fixated on fiscal prudence and economic issues, would be increasingly unwilling to partner with and vote for the religious fanatics, flat-earthers and white nationalists who had become the party’s base.

If the divorce I saw as likely back in 2000 (the year I “came out” as a Democrat) is ever going to occur, it will be precipitated by Donald Trump–an unstable and self-engrossed con man no rational businessperson would hire for any responsible position.

I may still be proven wrong, but I’m no longer prophesying in the wilderness. Others have begun predicting the fracturing of what’s left of the GOP.

On August 8th–before Trump’s horrifying reaction to Charlottesville–the Guardian devoted an article to the defection of GOP conservatives from the party that had embraced (or at least tolerated) Trump. The article began with the highly visible unhappiness of Senator Jeff Flake.

Jeff Flake of Arizona, among 17 conservative politicians, activists, officials and pundits interviewed over two months, revealed that while the president has given rightwing fringe groups a seat at the table, his alliance with his own party remains highly precarious.

The article proceeds to quote a number of prominent Republicans who shared their disdain for Trump and his enablers. Eliot Cohen, a former state department counsellor to Condoleezza Rice, said:

“This fundamentally boils down to character, and his character is rotten. He’s a narcissist who happens to have taken control of the Republican party. Trump has taken conservatives back to a different era, before William F Buckley drove out the Birchers, the bigots and the antisemites. We’re now back in a different world.

British conservative historian Niall Ferguson agreed:

The Republicans have surprised me in one respect and that was the poor discipline of the party. If you think of this in British terms, essentially we are now in a quasi-monarchy, kind of what Alexander Hamilton vaguely had in mind. But it’s a monarchy in the sense that the White House is a court and Trump is like one of those people who becomes king who’s not terribly well-suited to the role. And so there’s rampant factionalism and infighting and erratic decisions by the king, and Paul Ryan’s the prime minister who’s trying to manage affairs in the estates general. But the problem is that from a British vantage point, the party discipline’s very weak.

The article goes on to quote a significant number of prominent conservatives, some still supportive and others noting that Trump’s erratic and uninformed behavior is inflicting substantial damage on the party, and widening, not healing, the rifts that have been growing for some time. Two of the most critical were Charlie Sykes, a talk-radio conservative, and Michael Steele, former Chair of the national GOP.

Sykes pointed to the obvious danger of “going along”: you end up accepting  “someone who mocks the disabled and insults women because he gets you a social policy win.”

For his part, Steele says out loud what so many long-time Republicans say quietly:

This is my 40th year as a Republican and it is the first time I can honestly say I don’t recognise this party and some of the people who are leading it.

And this was before Charlottesville.

The GOP I once belonged to is already dead. The question for conservatives now is: what will become of its distasteful, immoral, unAmerican remains?

What Bible Are They Studying?

In the wake of Trump’s response to the Charlottesville riots–and especially as we look to see and judge the reactions of White House staff and Congressional Republicans–a news item published a couple of weeks ago in The Hill takes on a particularly ironic flavor.

Many of President Trump’s Cabinet members gather at a weekly session to study the Bible, the Christian Broadcasting Network (CBN) reported Monday.

Ralph Drollinger, the founder of Capitol Ministries, says he leads a weekly Bible study with Cabinet members such as Education Secretary Betsy DeVos, Energy Secretary Rick Perry, Health and Human Services Secretary Tom Price and CIA Director Mike Pompeo.

“It’s the best Bible study that I’ve ever taught in my life. They are so teachable. They’re so noble. They’re so learned,” Drollinger told CBN.

Vice President Pence, who is a sponsor of the faith sessions, reportedly joins the group when his schedule allows.

The snark just writes itself–especially when you consider that although Trump’s embrace of the “good people” carrying torches and chanting anti-black and anti-Jewish slogans prompted CEO’s to resign en masse from his two business advisory councils– it has yet to prompt even one departure from his Evangelical Advisory Board.

I am not a Christian (and I don’t play one on TV), so I don’t pretend to be conversant with the varying theologies that distinguish Christian denominations. But I have deeply religious Christian friends, and they assure me that Christ did not preach a doctrine of racial and religious hatred.

Evidently, the Evangelical Advisory Board and the leader of the cabinet’s Bible Study are more tolerant of intolerance than my Christian friends.

According to media reports, Pastor Ralph Drollinger, the 7-foot-1 former UCLA basketball star who leads these sessions, has his own take on a number of biblical admonitions. He once lectured a group of Sacramento lawmakers that female politicians with young children have no business serving in the Legislature. He called those who do so sinners. (Interestingly, he subsequently defended fathers whose careers take them out of the home for extended periods, although he did say they should be “extra sensitive” to such absences–whatever the hell that means.)

This is a “discipleship” that supports snatching health insurance from millions of Americans; that believes God wants them to deprive poor women access to the lifesaving pap smears and breast exams provided by Planned Parenthood; that wants to give wealthy taxpayers “relief” while viciously slashing already inadequate safety-net programs for the poor. It’s a “discipleship” that ignores biblical admonitions about stewardship of the environment. A “discipleship” that apparently has no problem supporting a President who equates good people and Nazis. I could go on. And on.

Isn’t there something in the bible about knowing people “by their works”?

Let me just modify that famous Gandhi quote: I like my friends’ Christ. I do not like these self-proclaimed “Christians.” They are so unlike my friends’ Christ.

 

 

The City And The Constitution

I was asked to speak to participants in the local OASIS program about the interaction of the Constitution with municipal government, and about my experiences during the Hudnut administration. I decided to share it, both as a needed vacation from Trumpism and as a reminder that there used to be decent politicians in both parties…

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When constitutional issues arise, most of us think of the federal government, and especially the Supreme Court. But the Constitution and the Bill of Rights apply to all levels of government, and are enforced by both state and federal courts—it’s what we mean when we talk about “the law of the land.”

There are differences in jurisdiction, of course—we have a federalist system, which means that some areas of the law are left to state and local governments—but those areas have to be consistent with the national Constitution. I am constantly amazed at how many people don’t know anything about federalism—that division of authority between the federal government and state and local governments—or about Separation of Powers or other basic aspects of America’s legal structure.

I really encountered this lack of “civic literacy” when I was at the ACLU. The ACLU defends the Bill of Rights, which is essentially a list of things that government can’t do. The Bill of Rights answers the question: who decides? Who decides what prayer you say, what political beliefs you hold, what books you read? In the United States, citizens get to make those sorts of decisions for ourselves, free of government interference.

Since the Bill of Rights only limits what government can do, the ACLU only sues government. Not only did I discover that a lot of people don’t know that the Bill of Rights only restrains government, I also discovered that a lot of people don’t know what government is.

Originally, the Bill of Rights applied only to the federal government. It wasn’t until passage of the 14th Amendment that states were required to extend the “privileges and immunities” of citizenship to their own residents. After the 14th Amendment was ratified, there was a series of decisions in which the Supreme Court ruled that the Bill of Rights also  limited the authority of state and local government officials.

Evidently, a lot of people haven’t encountered the 14th Amendment: When I was Corporation Counsel, I issued an opinion that the 1st Amendment prohibited the City from doing something—I no longer recall what—and someone wrote an angry letter to the editor that began, “I read the First Amendment, and it says Congress shall make no law…” That’s an excellent example of why just reading the text of the Constitution—especially the text of only one amendment—won’t give you the whole story.

Speaking of stories…I was asked to share some of the highlights—and low points—of my three- year stint as Corporation Counsel (chief lawyer) of the City of Indianapolis, with a focus on how the Constitution and Bill of Rights affect municipal governments.

I was appointed Corporation Counsel by Mayor Bill Hudnut in 1977. To the best of my knowledge, I was the first woman to hold that position in a major metropolitan area, and my first encounter with a constitutional issue was a lesson in both sexism and freedom of the press: Indianapolis still had two newspapers then, and the evening News featured a “Gossip” box on the front page. When my appointment was announced, the Gossip box “item” was something along the lines of: a high-ranking official has appointed his most recent honey to an important position in City Hall. No names, but it wasn’t hard to figure out who they were talking about. (After all, as one newspaper had described me, I was a “divorcee.” We don’t hear that word much these days, fortunately…sounds pretty racy.)

On my second day on the job, I got a call from the U.S. Justice Department. At the time, the City was being sued for a history of race and gender discrimination in the police and fire departments; we ultimately entered into a consent decree, because Mayor Hudnut recognized that history and wanted to correct it. But the suit had just been filed a few months before the call from the Justice Department lawyer. He asked for Dave Frick, my predecessor, who had become Deputy Mayor. Dave’s Secretary explained that he was no longer Corporation Counsel and asked him if he would like to be transferred to the new Corporation Counsel. He said yes—and I picked up the phone and said “May I help you?” He said, “Yes, I’m holding for the new Corporation Counsel.” This was 1977, and there weren’t many women lawyers then; he clearly thought he was talking to a secretary. After a pause, I said “This is the new Corporation Counsel.” He was suitably embarrassed. (On the other hand, he was really easy to deal with after that.)

Within my first couple of months on the job, I confronted a pretty classic First Amendment Religious Liberty issue. (The First Amendment has two religion clauses: the Establishment Clause and the Free Exercise Clause; together, they mandate governmental neutrality in matters of religion). For many years, the City had erected a Nativity scene on Monument Circle at Christmas. Monument Circle was—and is—publicly owned. Erecting a religious display on government property is a violation of the Establishment Clause; it is an endorsement of religion—in this case, the Christian religion. The jurisprudence was very clear, and when the City was threatened with a lawsuit, I advised Hudnut that we would lose such a suit if it were to be brought.

Unlike so many of today’s politicians, Hudnut did not use the conflict as an excuse to grandstand. He could have made points with people who didn’t understand the Constitution by “defending” the display; instead, he used the incident as an opportunity to educate. We sold the nativity scene to the Episcopal Church across the street and they displayed it, still on the Circle, where it was equally prominent and totally Constitutional.

Mayor Hudnut—who had been a Presbyterian Minister before he was elected—took all kinds of heat for “attacking Christianity.”

I think this incident was the first time I realized that some people want their religious symbols on public property because they want government to endorse their particular beliefs. It didn’t matter to these folks that the nativity scene was still on the Circle, still easily viewed: they wanted the City to send a message that their beliefs were favored, that their religion made them “real Americans,” and that people who hold different beliefs should be considered second-class citizens. That message, of course, is precisely what the Establishment Clause forbids.

One of the things that the City’s legal department does is advise committees of the City-County Council when legal questions arise. I still vividly remember being asked to testify about a proposed ordinance to ban Rock concerts from City parks. A local Reverend had persuaded his City-County Counselor to introduce the ordinance, which as I recall was pretty explicit about the reason, which was to protect Indianapolis’ citizens from immoral lyrics. It wasn’t concerns about traffic or noise or other issues that are entirely appropriate for City government to consider.

This minister had brought a busload of his church members with him to this particular committee meeting, and they sat in the public hearing room waving small American flags. It was surreal.

I testified that the ordinance as written would violate the First Amendment’s Free Speech Clause. Freedom of speech requires government to be what lawyers call “content neutral:” government can restrict the time, place and manner of communications, to a degree, but it can’t pick and choose what messages get exchanged. I explained to the Committee (and the audience) that there were a number of things the City could constitutionally control—traffic, noise, sanitation—but that the Constitution would not allow censorship of certain kinds of music based upon disapproval of the messages being conveyed by the lyrics.

When I completed my testimony and turned to leave, the Pastor rose from his seat and yelled at me, “My bible is more important than your Constitution.” (I thought it was interesting that the bible was his and the Constitution was mine…)

Most of the Constitutional issues I dealt with at the City were (fortunately) a lot less “exciting” than that encounter. For example, during my three years in City Hall, City Legal defended a number of what lawyers call Section 1983 cases. Section 1983 is a provision of federal law that allows people to recover attorney’s fees if they win a lawsuit alleging that someone acting on behalf of City government violated their constitutional rights. It’s a very important safeguard, because many—probably most—people whose rights have been violated can’t afford a lawyer. If lawyers know that they will be paid by the city if they are successful, in other words, if they can prove that the City really did violate their clients’ rights, they are more likely to take meritorious cases—and more likely to decline sure losers.

As I noted previously, Mayor Bill, as we called him, was a minister, and sometimes his minister side pressured his Mayor side. For example, he really wanted to close down bookstores that sold sexually explicit books and magazines, and periodically he would suggest some creative—but constitutionally dubious—ways of doing that. I like to think I kept him constitutionally compliant while I was there, but after I left, the City passed a truly bizarre ordinance that tried to sidestep the Free Speech provisions of the First Amendment by defining “pornography” as sex discrimination.

The District Court, the Seventh Circuit and the Supreme Court all saw through that strategy.

The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. Some of you may have seen the story from this year’s 4th of July, when NPR tweeted out the Declaration of Independence, and got hundreds of angry emails from people who thought it was an attack on the President, or “communist propaganda.”

I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

We elect a U.S. senator for how many years? 11%

Who was the first President of the United States? 23%

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.

America is the most diverse country on earth. What we have in common—what makes us Americans—is allegiance to a particular concept of law, a particular approach to self-government. When we don’t know what that approach is, or why our Founders crafted the system we have, we lose what holds us together, what makes us one nation.

To borrow a phrase from the Tweeter-in-Chief: that’s sad.