Category Archives: Public Policy and Governance

This Deserves Full-Throated Support

So long as Republicans continue to control the Senate–and a know-nothing buffoon continues to occupy and degrade the Oval Office–this bill is unlikely to become law.

That’s too bad, because it gets to the essence of our genuine “national emergency.”

The bill, which is known as H.R. 1, or the For the People Act, and was sponsored by Rep. John Sarbanes (D-Md.), would create a more responsive and representative government by making it easier for voters to cast a ballot and harder for lawmakers to gerrymander, by transforming how campaigns are funded to amplify the voices of ordinary Americans, and by bolstering election security and government ethics.

Rather than treating structural issues hindering democratic decision making in separate proposals, the bill addresses a number of the systemic weaknesses that enable political game-playing and “dirty tricks”–  voting rights, gerrymandering, campaign finance reform, and ethics.

The Brennan Center description of the measure (linked above) highlights several of the most important provisions–restoring the Voting Rights Act, ensuring that everyone in the country gets at least two weeks within which to cast an early ballot, campaign finance reforms, and a requirement that all voting machines have paper trails. Among the most important are measures affecting voter registration and discouraging gerrymandering:

Streamlining Voter Registration: H.R. 1 would bring Automatic and Same-Day Voter Registration to voters across the country. Automatic Voter Registration (AVR) is a transformative reform under which eligible voters are automatically registered when they provide information to the government at the DMV or other government agencies, unless they opt out. Since 2015, 15 states and the District of Columbia have approved AVR, leading to big gains in registration. If adopted nationwide, AVR could add as many as 50 million new voters to the rolls. Same-Day Registration (SDR) allows eligible voters to register at the polls on Election Day, making it less likely that voters will be disenfranchised by last-minute registration problems. It is already offered in 16 states. Combined with AVR, SDR would solve most of the serious registration problems voters experienced in 2016 and 2018….

Gerrymandering Reform. H.R. 1 would curb extreme partisan gerrymandering by ensuring that states draw congressional districts using independent redistricting commissions whose members represent diverse communities across the state, by establishing fair redistricting criteria, and by mandating greater transparency for the redistricting process.

Taken as a whole, this bill would make considerable progress toward ensuring fair elections with results that accurately reflect the will of the voters. In a sane world, opposing it would be tantamount to opposing motherhood and apple pie–so why do I say that Republicans will never let it see the light of day?

The answer to that (entirely rhetorical) question is obvious to anyone who follows political news: without gaming the system, today’s GOP cannot win enough votes to control the House or Senate. If not for the Electoral College, the party–at least as it exists today– would rarely if ever win the White House.

America desperately needs a grown-up GOP, one that’s able to compete for votes in fair elections. While we wait for the emergence of such a party, however, we need fair elections.

Passing this bill would be a major step in that direction.

Incompetence Saves The Day

The “breaking news” yesterday on my iPhone and computer included a welcome report about the coming census. As most of you are undoubtedly aware, Wilbur Ross wanted to add a question about citizenship that was widely seen as an effort to depress Hispanic response.

Since funding for a wide number of programs is based upon population, an undercount would really hurt cities and states with high percentages of Hispanics. I’m sure its just coincidental that those places tend to vote Democratic.

In a 277-page opinion, the federal court ruled the question could not be asked.

David Schultz, a colleague who holds joint appointments at Hamline and the University of Minnesota law school, posted a brief summary of the decision on the Law and Courts listserv in which we both participate. (Yes, I am an incredibly nerdy person…)

The Court concluded that the explanations offered–the purported reasons for adding the question–were pretextual.

“First, the Court concludes that Secretary Ross ignored and violated a clear statutory duty to rely on administrative records (rather than direct inquiries) to the “maximum extent possible,” 13 U.S.C. § 6©, rendering his decision “not in accordance with law,” 5 U.S.C. § 706(2)(A). Second, even if that statute did not exist, Secretary Ross’s decision to add a citizenship question rather than collect citizenship data through more effective and less costly means was “not supported by the reasons [he] adduce[d],” Service, 522 U.S. at 374, making it “arbitrary and capricious” in violation of Section 706(A). Third, although a closer question, the Court finds that Secretary Ross failed to satisfy the statutory requirement that he report any plan to address the subject of citizenship to Congress at least three years before the decennial census, in violation of Title 13, United States Code, Section 141(f)(1). And fourth, the Court concludes that Secretary Ross’s decision was pretextual — that the rationale he provided for his decision was not his real rationale.”

An even more interesting part of the decision was the court’s review of the requirements of the Administrative Procedures Act. As David wrote,

What most struck me about the opinion were two major points.  First, and I argued this from day one of the Trump administration, their lack of skill and knowledge about the government (including the Constitution, the law, and process and procedure), would eventually lead to many administrative decisions being struck down in the courts.  This is an example of that. The court describes in detail how Ross just ignored the law and thought he was acting like the CEO of a company where he could do whatever he wanted. He ignored the law, reporting requirements, and also sought to cover up decisions.

The second major point was how DOJ attorneys effectively conceded much of the case to the plaintiffs…

Because Ross simply ignored applicable legal requirements, he left the DOJ attorneys with virtually no arguments to counter the charges of illegality. (Lawyers who’ve been put in this position by clients who are willful or stupid–or both– can relate.)  According to David, “The judge was simply devastating in detailing Ross’ willful disobedience of the law and the inability of the attorneys to defend his actions.”

This administration is doing incalculable harm. Every day is a new outrage, a new assault on the environment, public eduction, the rule of law…not to mention sanity and common decency. This case is a wonderful reminder that–as much damage as this band of looters and thugs is doing–it would be a lot worse if they weren’t reincarnations of the Keystone Kops.

As Paul Krugman put it in “Donald Trump and His Team of Morons,”

Then there’s the Trump effect. Normally working for the president of the United States is a career booster, something that looks good on your résumé. Trump’s presidency, however, is so chaotic, corrupt and potentially compromised by his foreign entanglements that anyone associated with him gets tainted — which is why after only two years he has already left a trail of broken men and wrecked reputations in his wake.

So who is willing to serve him at this point? Only those with no reputation to lose, generally because they’re pretty bad at what they do. There are, no doubt, conservatives smart and self-controlled enough to lie plausibly, or at least preserve some deniability, and defend Trump’s policies without making fools of themselves. But those people have gone into hiding.

I never thought I’d be so grateful for incompetence.

Speaking Of Symbolism…

Most sane observers understand that Trump’s wall is entirely symbolic. If built, it clearly wouldn’t prevent the entry of undocumented folks (the majority of whom fly in and overstay their visas) or the successful smuggling of drugs (which tend to come by ship or air).

Even Fox News rebutted the Administration’s claim that 4,000 terrorists had been stopped at the Southern border (the actual number appears to be 6 people on the watch list). I’m told that most of the Saudis responsible for 9/11 entered through Canada.

The obscenely expensive wall Trump wants to build between the U.S. and Mexico is solely intended to send a message: ignore the poem on Lady Liberty. If you are brown, you aren’t welcome.

The government shutdown triggered by his tantrum over the wall provided Trump watchers with another symbol–one more example of how truly corrupt our know-nothing President can be. Not that most of us needed the reminder.

As federal employees tried to figure out how they would pay their mortgages and put food on the table during the shutdown, as landlords threatened to evict tenants dependent upon Section 8 vouchers that stopped coming, as millions of Americans who rely on SNAP (food stamps) faced the likelihood that those benefits wouldn’t be forthcoming…Talking Points Memo reported that the President managed to keep a historic site incorporated in his hotel fully staffed.

WASHINGTON (AP) — Smithsonian museums are closed. There are no federal staffers to answer tourists’ questions at the Lincoln Memorial. And across the United States, national parks are cluttered with trash. Yet despite the federal government shutdown, a historic clock tower at the Trump International Hotel remained open Friday for its handful of visitors, staffed by green-clad National Park Service rangers.

“We’re open!” one National Park Service ranger declared around lunchtime, pushing an elevator button for a lone visitor entering the site through a side entrance to ride to the top of the 315-foot-high, nearly 120-year-old clock tower.

The Trump administration appears to have gone out of its way to keep the attraction in the federally owned building that houses the Trump hotel open and staffed with National Park Service rangers, even as other federal agencies shut all but the most essential services.

A watchdog group has filed a Freedom of Information request over the Trump Hotel’s exemption from a shutdown that furloughed hundreds of thousands of workers and crippled many agencies.

Completed in 1899, the Romanesque-style former post office is on the National Register of Historic Places. The GSA pays for the National Park Service to run the building’s clock tower for visits by the general public. The tower initially closed to the public after the shutdown started. The GSA noticed then that the deal under which the park service staffs the site had expired, and renewed it, and the park service reopened the tower this week, the agency said.

There could hardly be a clearer symbol of Trump’s priorities.

Are more than 800,000 hard-working federal workers desperately trying to make ends meet? Is air travel becoming dangerous as TSA personnel call in sick rather than continue working without pay? Are the national parks overflowing with trash? Well, first things first–we certainly don’t want to inconvenience Trump’s business.

The wall is a symbol of his bigotry; the park rangers tending to the clock tower are a symbol of his self-engrossed avarice.

His presidency is a shameful symbol of national decline.

Progress Report From Juanita Jean

So much winning…

A few days ago, my favorite Texas blogger summed it all up:

As of this moment, we have no Attorney General, no White House Chief of Staff, no Interior Secretary, no Director of the EPA, the Secretary of Education is a religious nut trying to destroy education, the VP is a religious nut who believes women should be subjugated, the Secretary of State is a political hack helping cover up the murder of a Saudi journalist, the Director of National Security wants to bomb Iran, 18 countries have no US ambassador (including Australia), half of the positions in the State Department remain unfilled, the stock market is down almost 3,000 points, China now owns Pacific rim trade, the US is the only major power to NOT be in the Paris accords, the entire world is either terrified or laughing at us, and the president has shut down the government for the last 10 days over his 5th century solution to a 21st century problem. Notice I didn’t mention anything about everyone convicted, in jail, or on the way to jail, or Trump’s current average of telling over 500 lies per month.

This is great? Are we tired of winning yet?

The answer to her (entirely rhetorical) question is: yes, some 60% of us are very tired of Trump and his version of “winning.

The question that is harder to answer is, what the f**k is wrong with that other 40%?”

Reich’s Rules

What American politicians call privatization has been a focus of much my academic work.(If you go to the “Academic papers” section of this blog and search for privatization, you’ll find a lot of entries.)

I phrase it as “what American politicians call privatization” because–as Morton Marcus pointed out to me years ago– genuine privatization is what Margaret Thatcher did in England. She sold off government-owned assets like railroads and steel mills to the private sector, after which they were private. They paid taxes, and either prospered or failed, but government no longer had much to do with them.

What Americans call “privatization” is very different. The accurate term is “contracting out” –and it refers to the decision by government agencies to provide government services through for-profit or non-profit surrogates. That process should not be confused with procurement–no one expects city hall to manufacture its own computers or the myriad other items it requires in order to function. (Admittedly, the line can get blurry: contracting with a private paving company to fill potholes, for example. But few privatization critics are troubled by those long-standing practices.)

It is important to recognize that when a government agency contracts with a surrogate to provide services that the agency is legally required to provide, government remains legally responsible for the proper delivery of those services.

Robert Reich recently enumerated five rules that should govern these decisions. His rules are very similar to those on my class lecture on the subject.  It should be obvious, for example, that government shouldn’t contract out when keeping a service in-house will be more efficient and cost-effective.

Other rules are less obvious, but no less important.

  • Don’t privatize when the purpose of the service is to bring us together – reinforcing our communities, helping us connect with one another across class and race, linking up Americans who’d otherwise be isolated or marginalized.

 This is why we have a public postal service that serves everyone, even small rural communities where for-profit private carriers often won’t go. This is why we value public education and need to be very careful that charter schools and other forms of so-called school choice don’t end up dividing our children and our communities rather than pulling them together.

  • Don’t privatize when the people who are supposed to get the service have no power to complain when services are poor.

 This is why for-profit prison corporations have proven again and again to violate the constitutional rights of prisoners, and why for-profit detention centers for refugee children at the border pose such grave risks.

  • Don’t privatize when those who are getting the service have no way to know they’re receiving poor quality.

 The marketers of for-profit colleges, for example, have every incentive to exploit young people and their parents because the value of the degrees they’re offering can’t easily be known. Which is why non-profit colleges and universities have proven far more trustworthy.

  • Don’t privatize where for-profit corporations face insufficient competition to keep prices under control.

 Giant for-profit defense contractors with power over how contracts are awarded generate notorious cost overruns because they’re accountable mainly to their shareholders, not to the public.

Perhaps the most troubling contracting practices involve the military; contract soldiers are uncomfortably similar to mercenaries, and the growing use of private companies in America’s  various wars and military actions generates a number of very thorny issues, a topic I’ve explored elsewhere.

One of America’s many overdue conversations should address what services we expect  our various levels of government to provide and the nature and extent of the evidence needed to support a decision to outsource service delivery.