All posts by Sheila

About Those Rankings…

A reader recently sent me a link to a ranking of U.S. states on the basis of how “business-friendly” they are. The more welcoming to business, the more likely to create jobs and experience economic growth–or so the organization doing the ranking asserted.

The organization doing this particular ranking was ALEC, the American Legislative Exchange Council. ALEC is dominated by corporate and libertarian interests, so it isn’t surprising that its definition of “business friendly” is heavily weighted toward low tax rates and corporate subsidies.

If you agree with ALEC’s priorities, I suppose having one’s state receive high marks is cause for celebration. If you don’t–and I don’t–their conclusions are pretty worthless, except, perhaps, as a cautionary tale.

City and state rankings are issued by a variety of organizations and publications; they’re the sorts of “report cards” that Mayors and Governors often brag about–conveniently overlooking the fact that virtually all of them paint a picture of how well their jurisdictions meet the sponsors’ priorities rather than providing accurate assessments of the comparative merits of the “rankees.”

I would call my critique of city and state rankings their “dirty little secret,” except it isn’t very secret: all of the various rankings–the ones I like and the ones I don’t– are inescapably a function of the values of the entity doing the ranking. (Take a look at those “best places to retire” lists. Their top choices tend to be places I’d hate, because the elements that make a community livable to me are clearly not among the criteria they’ve employed.)

ALEC  finds Indiana moderately “business friendly” because our taxes are low, and it prioritizes low taxes over elements of state environments that many businesses find more important: an educated workforce, and such quality of life measures as good schools, convenient public transportation, affordable housing and well-maintained infrastructure. The presence of those elements, of course, depends upon the adequacy of the public dollars available to support them–and we raise those public dollars through taxation.

You see the problem.

It isn’t a mystery why states like Indiana lack the first-rate public schools needed to produce that coveted educated workforce, not to mention the well-maintained public amenities that factor into a high quality of life. Like ALEC, we’ve prioritized low taxes over the maintenance of our social and physical environment.

There is a fairly substantial body of business research that finds the availability of an educated workforce and those “quality of life” measures that attract and keep talented workers much more important to businesses seeking to relocate than the level of taxation. Not that taxes aren’t an important part of the mix, but they are rarely dispositive.

If you want confirmation of that research, you need only take a look at the qualities that Amazon has listed as important as it searches for a city in which to locate its second headquarters. Or talk to the people in your city or state who are charged with economic development.

A genuinely business-friendly environment is one in which people want to live and work. Unfortunately, that isn’t something that can be produced on the cheap.

 

 

 

Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor.  The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim,  ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the  raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception.   Communications between lawyers who collude with their clients to break the law are not protected.  In this case,  the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….

 

The Call Of Moral Duty

I empathize with Michael Gerson, George W. Bush’s former speechwriter who is now a columnist for the Washington Post. Closer to home, I’m sympathetic to conservative blogger Paul Ogden. Despite significant policy disagreements with them, I respect these longtime conservatives, because they are two of the few–very few–who have remained intellectually honest during the Trumpification of the GOP.

People like these remind us that there is an intellectually respectable conservative philosophy, and that its basic tenets haven’t changed even if the party that used to espouse them has.

In a recent column for the Post, Gerson confronts the conflict between political philosophy and a desire to exercise power.

Is it time for anti-Trump conservatives to recognize that they have lost the political and policy battle within the GOP and to accommodate themselves as best they can to an uncomfortable reality?

This is the argument of the Ethics and Public Policy Center’s Henry Olsen, one of the most thoughtful political analysts on the right. On issues such as trade, immigration and the Muslim travel ban, he argues, Republican critics of President Trump are dramatically “out of step with conservative[s].”

As Gerson sees it, this is a call to put aside differences on some policies in order to work together on the implementation of other goals upon which there is broad agreement within the conservative movement. In the abstract, that’s normal political realism; even within a particular faction of the same party, policy differences will exist and need to be negotiated.

As Gerson recognizes, however, these aren’t normal times.

If Trump were merely proposing a border wall and the more aggressive employment of tariffs, we would be engaged in a debate, not facing a schism. Both President Ronald Reagan and President George W. Bush played the tariff chess game. As a Republican presidential candidate, Mitt Romney endorsed the massive “self-deportation” of undocumented workers without the rise of a #NeverRomney movement.

But it is blind, even obtuse, to place Trumpism in the same category. Trump’s policy proposals — the details of which Trump himself seems unconcerned and uninformed about — are symbolic expressions of a certain approach to politics. The stated purpose of Trump’s border wall is to keep out a contagion of Mexican rapists and murderers. His argument is not taken from Heritage Foundation policy papers. He makes it by quoting the racist poem “The Snake,” which compares migrants to dangerous vermin. Trump proposes to ban migration from some Muslim-majority countries because Muslim refugees, as he sees it, are a Trojan-horse threat of terrorism. Trump’s policy ideas are incidental to his message of dehumanization.

So how do we split the political difference on this one? Shall we talk about Mexican migrants as rapists on every other day? Shall we provide rhetorical cover for alt-right bigots only on special occasions, such as after a racist rally and murder?

Gerson continues his analysis: Republicans criticize media bias, but Trump is trying to delegitimize criticism as “fake news” and mainstream journalists as “enemies of the people.”  Politicians being investigated can be expected to push back, but Trump is trying to discredit all federal law enforcement and he deliberately cultivates citizen distrust of a mythical“deep state.”

We have seen similar damage in the realm of values and norms. In the cultivation of anger and tribalism. In the use of language to inflame and demean. In the destruction of a common factual basis for politics, making policy compromise of the kind Olsen favors impossible.

As Gerson says, these choices are not a dialectic requiring synthesis. They’re alternatives demanding a choice. Instead of capitulating to the party’s white nationalists in hopes of policy victories and partisan dominance, Gerson counsels elected leaders to “remind Americans who they are and affirm our common bonds,” and to work for an

agenda of working-class uplift, not an agenda of white resentment — which will consign Republicans to moral squalor and (eventually) to electoral irrelevance. For principled conservatives to hear the call of moral duty and stand up for their beliefs until this madness passes. As it will.

People join political parties for all sorts of reasons. Both parties are mixtures of policy wonks, rigid ideologues and political theorists along with rank and file folks influenced by their parents, co-workers or friends.

Trumpism confronts the dwindling number of intellectually-honest Republicans with a difficult choice: whether to swallow hard and continue to be obedient soldiers in a debased, white nationalist GOP, or remain true to the conservative philosophy that led them to join the party in the first place, even at the cost of antagonizing old friends.

The call of moral duty is clear.

These Are The People Running Our Country..

This is truly terrifying.

Ed Brayton at Dispatches from the Culture Wars reports on one of those “best people” Trump promised us. This time it’s a communications person in the Department of Health and Human Services.

As a fringe right-wing political commentator, Ximena Barreto claimed that “African-Americans are way more racist than white people,” labeled Islam “a fucking cult” that has “no place” in the United States, pushed the false Pizzagate conspiracy theory, and attacked the “retarded” 2017 Women’s March. In December, she became a deputy communications director at the Department of Health and Human Services (HHS)…

Brayton buttresses this description with specifics of the time, place and rhetoric employed. Click through to see the rest, but here’s a taste:

During her November 30, 2016, Periscope, Barreto said that Islam advocates for “killing other people and abusing women; that’s not a religion, that’s a fucking cult. Like, I’m serious. Like, that’s not religion.” She also said during a June 12 video that Islam is “just a cult. All the practices are cult-like, all that they do.”

During a December 4, 2016, Periscope video, she wondered aloud whether there are members of the Muslim Brotherhood in the U.S. government — a common conspiracy theory among anti-Muslim right-wing media. After someone asked if there’s a Muslim Brotherhood plan in the United States, she replied: “Well, how many of them are in the government already, you know? Like in Congress?”

In a May 25 post on the now-defunct website Borderland Alternative Media, she suggested that practicing Islam should not be allowed in the United States.

Even if her appalling bigotries weren’t disqualifying, her obvious ignorance should have been.
As disquieting as it is to know that these are the sorts of people being hired by our federal government agencies, the fact that so many judicial nominees are only marginally better is far more terrifying. Employees can be replaced; judges are lifetime.
Even the extremely conservative Neil Gorsuch answered that question without equivocation during his confirmation hearing last March. Gorsuch called Brown a “seminal decision that got the original understanding of the 14th Amendment right.” He added that Plessy was a “dark, dark stain” on the Supreme Court’s history.

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pickto ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nominationnot long after video of his abject performance went viral. The White House also pulled backtwo nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

These nominees are not jokes, and they are not cartoonish bumblers. They are highly effective and respected thinkers with agendas not unlike that of Trump’s Supreme Court nominee Neil Gorsuch. They will create a judicial branch that is hostile to women’s rights, workers’ rights, voting rights, LGBTQ protections, and the environment. And they will do so capably and under the radar. We giggle at the Trump judges at our peril.
I’m not giggling. I’m drinking.