No Good Deed Goes Unpunished

Well, it appears I’ve missed an intriguing element of those abysmal “ad wars” being waged among candidates for the Republican gubernatorial nomination.

Apparently, Eric Doden’s most recent weird ad–in which he highlights his support for qualified immunity (and anything police might ever do) is based upon the only position Braun took during his six years as a Senator with which I actually agree–he sponsored a bill that would narrow the application of that doctrine. In the current primary contest, that’s a vulnerability.

What’s that old saying? No good deed goes unpunished.

I’ve addressed qualified immunity previously. To recap: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

That’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine it dubbed “qualified immunity.” As a judge in one case noted, it might just as well be called “absolute immunity.” Ruth Marcus explained it in a Washngton Post article a few years ago:

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

In 1982, in a case called Harlow v. Fitzgerald, the Court established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, the first person to litigate a specific harm is out of luck, since the “first time around, the right violated won’t be ‘clearly established.’” A post on Lawfare gave an example.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” The doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

One legal scholar has characterized the doctrine as a “through-the-looking-glass” example of jurisprudence that doesn’t simply excuse police violations of constitutional rights, doesn’t just grant police an exception to the axiom that “ignorance of the law is no excuse,” but that actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

I will admit to surprise–shock, really–that Braun understood the pernicious effects of this judge-made doctrine, and the way it encourages reckless police behavior. It is beyond ironic that his one bit of sensible behavior has become his biggest vulnerability in this primary. 

But no problem! His recent ads–showing slavish support for police and “law and order”– confirm that Braun is always about politics and never about integrity.

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Braun, Banks And ALEC

A reader has provided me with a copy of a letter sent by sitting Senators and Congresspersons–all Republican, so far as I could tell– to ALEC. ALEC stands for American Legislative Exchange Council. Among the signatories of that missive were Indiana culture warriors/Christian Nationalists, Mike Braun and Jim Banks.

The letter read in its entirety as follows:

Dear Founders, Leadership, Members, and Employees of the American Legislative Exchange Council,

We write to express our sincere congratulations as we commemorate the 50th anniversary of the American Legislative Exchange Council (ALEC). Since its inception in 1973, ALEC has remained a stalwart defender of limited government, free markets and a strong federalist system.

During its 50 years, ALEC has grown to become America’s largest voluntary membership organization of state lawmakers. Today, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States.

A true laboratory of democracy, ALEC enables lawmakers to share ideas and experiences with their peers from across the states and develops the most trusted policy solutions to the diverse challenges facing our communities.

We know that many of the critical policy questions of our time will be decided in the states: expanding educational opportunities for our children, unleashing principled entrepreneurship, protecting taxpayers, and lifting people out of poverty. As Members of Congress, we look to the states to inform our policy decisions. ALEC and its members provide us with valuable research and feedback which helps us build on previous successes or avoid unnecessary consequences.

Nearly 100 Members of Congress are ALEC Alumni, and they bring to Washington, DC the collaborative lessons they learned in their state legislatures. Noting that ALEC members adhere to the motto, “limited government, free markets and federalism,” ALEC Alumni in Congress work together to help make Washington more effective and accountable to the American people.

Finally, as we work to reduce federal regulations and interference in Americans’ everyday lives, we can confidently cede statutory power to the jurisdiction of the states, knowing ALEC members stand at the ready to lead the charge. We celebrate the generations of experience and success ALEC and its members have contributed at all levels of government, and we look forward to another 50 years of partnership in providing policy solutions for all Americans.

Here’s what Common Cause says about ALEC and those “trusted policy solutions:”

American Legislative Exchange Council (ALEC) is a corporate lobbying group that brings together corporate lobbyists and politicians to draft and vote — as equals and behind closed doors — on “model bills” that often benefit the corporations’ bottom line. These model bills, drafted without public input, are then introduced in state legislatures across the country, usually with ALEC’s involvement concealed. ALEC and ALEC-member corporations often pay for legislators’ travel expenses to go to ALEC conferences; when ALEC or the corporations are not paying for these so-called “scholarships,” the expense is often passed on to the taxpayers. ALEC lobbies on a variety  of issues, including taxes and budgets, climate change and the environment, workers’ rights and collective bargaining, healthcare, telecommunications policy, election laws, and education.

Common Cause has filed a “whistleblower” complaint against ALEC with the IRS, and provided evidence that the group has violated its tax-exempt status by operating as a lobby while claiming to be a charity.  (ALEC’s purported “charitable” status allows its corporate supporters to take the millions spent each year to support ALEC’s lobbying as tax deductions–meaning that we taxpayers are subsidizing that lobbying.)

After a raft of very unflattering stories about the organization emerged in 2011, a number of major companies left ALEC. Among those who remain are Altria, Koch Industries, UPS, FedEx, Pfizer, Duke Energy, Charter Communications, Comcast, and Anheuser-Busch.

I have written previously about ALEC–especially about its “leadership role” in gerrymandering, and in assisting the efforts of White Supremacists.The latter post quoted an article from The Guardian about a report by the Center for Constitutional Rights (CCR) and other civic organizations, charging ALEC with propagating White Supremacy.

In one of the sharpest criticisms yet leveled at the controversial “bill mill”, the authors warn that “conservative and corporate interests have captured our political process to harness profit, further entrench white supremacy in the law, and target the safety, human rights and self-governance of marginalized communities”

ALEC’s influence is sickening–but it shouldn’t be surprising. Braun and Banks–both endorsed by Trump–are full-throated devotees of and advocates for ALEC’s agenda.

Voters need to see to it that both of them are retired from public office in November.

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Why I Don’t Think The Midterms Were An Anomaly

I have a bet with my youngest son. He’s a political pessimist, especially when it comes to the state of Indiana. (The bet involves very expensive dinners…) The bet was triggered by my excitement–and optimism–about Jennifer McCormick’s announcement that she is a candidate for Governor. I think she can win, even in deep Red Indiana; my son has written off the possibility of any Democrat winning statewide office, and has dismissed any predictive value of Obama’s 2008 Hoosier win.

My optimism about McCormick’s campaign is partially due to candidate quality (both hers and that of her likely opponent, the odious Mike Braun) but it is also based on what I see as a national trend: from top to bottom, the GOP is running truly horrible candidates.

At the very top of the Republican ticket, we are almost certain to get either Donald Trump or Ron DeSantis. American voters soundly rejected Trump in 2020, and he gets more certifiable as his legal woes mount. DeSantis appears to be basing his campaign on an “anti-woke” platform. Not only is DeSantis most definitely not a guy you’d like to have a beer with, his evident belief that a majority of Americans want to return to the 1950s, when “men were men” (and in charge), women were in the kitchen barefoot and pregnant, no one had ever heard the word transgender, and schools dutifully imparted White Christian propaganda, is simply delusional.

In a recent issue of his daily newsletter, Robert Hubbell noted that Democratic over-performance hasn’t abated since the midterms, when that predicted Red wave failed to materialize. He pointed to subsequent elections in Colorado Springs, Colorado, where voters selected the first non-Republican mayor since 1979 by a margin of 15 points;
a Pennsylvania special election to the state assembly where the Democrat won by 20 points and maintained Democratic control despite the fact that, going into the 2022 midterms, Republicans had held a 113-90 advantage; and a New Hampshire assembly race where the Democrat won by 43 percentage points, “eclipsing Biden’s 27-point margin in 2020.”

Hubbell quoted one analyst for the observation that

Democrats have overperformed the 2020 presidential results by an average of six points across 18 state legislative races this year. . . . They’ve also beaten their 2016 margins by an average of 10 points.

He quotes another analyst who focused in on the underlying reasons for that over-performance: abortion extremism, ongoing GOP-encouraged gun violence, extremist MAGA candidates, and a (finally!) fired-up Democratic grassroots.

In the run-up to the midterms, Republicans confidently pointed to Joe Biden’s disappointing approval ratings as a sign that they would sweep their gerrymandered House districts and retake control of the Senate. As we now know, despite the extreme gerrymandering and the vote suppression efforts, those victories eluded them.

As Morton Marcus and I argued in our recent book, the loss of Roe v. Wade was a major reason for that outcome. Women’s progress toward civic equality requires autonomy, control over one’s own reproduction, and most women who vote understand that. Republicans running for office in 2024 will have to “thread the needle” between primary voters who are rigidly anti-abortion and a general election electorate that is lopsidedly pro-choice.

Good luck with that…

Add to the abortion wars the daily gun carnage that feckless Republicans keep trying to blame on mental health–despite the fact that large majorities of voters, even majorities of NRA members, attribute the mayhem to the lack of responsible gun regulations.

Voters who aren’t part of the White Nationalist Cult that is today’s GOP look at Congress–at Republicans protecting George Santos, hiring Neo-Nazi staffers, threatening to ruin the economy if they aren’t allowed to deprive poor people of food and mistreat veterans...and a not-insignificant number of them are echoing the immortal words of Howard Beale in the classic movie Network:“I’m as mad as hell, and I’m not going to take this any more!”

It’s true that the GOP can count on its cult members coming to the polls. There are more of those sorry creatures than most nice people want to believe, and they absolutely pose a danger to all of us–but they are a distinct minority of Americans. We need to see them for what they are, and recognize the threat they pose to the America the rest of us inhabit, but they can’t win in the absence of majority apathy.

Democratic candidates, on the other hand, appeal to voters who (like Indiana’s McCormick) support public education and academic freedom, who believe in separation of church and state, in women’s equality, in civility and compassion and inclusion–in all those qualities that our parents taught us were admirable, but the GOP disdains as “woke.”

There’s a lot to be concerned about, but like Hubbell, I’m hopeful.

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From Hudnut And Lugar To…Pathetic

In a recent post, I explained my long-ago departure from the Republican Party by sketching the GOP’s transition from a political party into a ragtag collection of culture warriors, con men and moral pygmies.

I’m certainly not the only person who’s noticed: David Brooks–a conservative-but-not-insane columnist for the New York Times recently bemoaned the fact that Republicans have abandoned principled policy debate in favor of fighting culture wars. And Yuval Levin of the American Enterprise Institute has wondered whether we may see a “policy realignment without a partisan realignment” because Republicans have found so many “cultural ways” to attract votes.

One of the many problems with Republicans’ metamorphosis from political partisans to culture warriors (a nice word for White Supremicists)  is the quality–or, more accurately, the absence of quality–of the political figures the party elevates.

Here in Indiana, the GOP is no longer  the party of able, principled people like Bill Hudnut and Richard Lugar. Besmirching the legacy of Lugar’s long and honorable Senate service, we have Mike Braun enabling the worst of Trumpism, and Todd Young obediently protecting billionaires from taxation and gun crazies from regulation.

Both have voted  in lockstep with other Trumpian “ditto heads” in the Senate–against the recent COVID relief package, against confirming Merrick Garland as Attorney General… essentially, against anyone or anything a Democratic President wants.

Neither of them can point to anything positive or important that they’ve accomplished. Their sole “platform” is that they have faithfully enabled  the GOP descent into Trumpian bigotry and culture war. 

Dick Lugar is rolling over in his grave.

And then we have Todd Rokita. I have previously posted about his effort to hold a second, well-paid job while purportedly acting as Indiana’s Attorney General–a full-time job. After the media highlighted that particular scam, Rokita quit that particular private-sector job–but it turns out, that wasn’t the only con he was running.

According to the Indiana Star

Indiana Attorney General Todd Rokita is getting paid $25,000 a year for advising a Connecticut-based pharmaceutical company on top of being compensated by at least one other company for similar work, IndyStar has discovered.

On Wednesday, Rokita filed a financial disclosure form with the Indiana inspector general’s office in which he described his ongoing involvement in 2020 with various companies. He acknowledged being paid by these companies, but his office declined to tell IndyStar how much. 

“We have provided all of the information required to be in compliance with the law,” spokesperson Molly Craft told IndyStar over email.

The financial disclosure comes weeks after Rokita faced scrutiny when it was reported that he was still working for the health care benefits firm Apex Benefits despite taking public office.

The paper reported that Rokita is being compensated by business accelerator Acel360, the Indianapolis-based transportation and logistics company Merchandise Warehouse and a pharmaceutical company, Sonnet BioTherapeutics. It was also able to confirm that he is being compensated by another pharmaceutical company called NanoViricides that he began working with in 2020 (in anticipation of his winning his campaign for AG?). 

Democrats have labeled Rokita a “walking conflict of interest,” and pointed out that–as a “well-known opponent of the Affordable Care Act”  he’s in position to place not just his political ideology but the interests of his private-sector benefactors ahead of the duties his office demands.

Thanks to the fact that the Indiana General Assembly is part-time, members are allowed to keep their “day jobs.” (That situation has pluses and minuses–members arguably bring  deepened understanding of many issues to legislative discussions, but the potential for conflicts of interest is greatly enhanced.) That same permissiveness doesn’t apply to statewide elected positions. Governor, Lieutenant-Governor, Superintendent of Public Instruction and Attorney-General are intended to be full-time jobs.

It would seem obvious to principled people that if they can’t “make it” on the state’s salary, they shouldn’t run for the office. Of course, it would also be obvious to principled people that throwing  dishonest red meat to voters terrified of losing cultural hegemony is a dishonorable way to win an election.

But then, these aren’t principled people.

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The Gravedigger Of American Democracy

This post is a plea to my Indiana readers.

When those of you who haven’t already voted go to the polls, vote for Joe Donnelly.

Am I enthusiastic about Donnelly? No. His television ads are insulting (although not quite as despicable as the spots supporting his opponent, Braun.) Those ads repel rather than motivate the Democratic base and they infuriate even moderate Democrats. His support for Trump’s wall is an obvious play for the sizable and embarrassing contingent of Hoosiers who oppose immigration and fear immigrants.(News flash, wall enthusiasts: the great majority of “illegal” immigrants fly to the U.S. and then overstay a visa. A wall–even if building it on the border were feasible–would do exactly nothing to deter them. But don’t let logic interfere with your bigotry.)

There’s more, but it’s all irrelevant, because a vote for Donnelly is a vote against Mitch McConnell. And that makes it really, really important.

In a review of a book on the rise of Hitler that drew parallels between the 30s in Germany and the contemporary U.S., ( the book title is The Suffocation of Democracy), the New York Review of Books included a perfect characterization of McConnell:

If the US has someone whom historians will look back on as the gravedigger of American democracy, it is Mitch McConnell. He stoked the hyperpolarization of American politics to make the Obama presidency as dysfunctional and paralyzed as he possibly could. As with parliamentary gridlock in Weimar, congressional gridlock in the US has diminished respect for democratic norms, allowing McConnell to trample them even more.

As one of my sons noted, in a Facebook exchange with a Democrat unhappy with Donnelly,

As most of us (sadly) recognize, we don’t have a choice on the ballot between “perfect”and not perfect; we only have a choice between “decent” (Donnelly) and “horrible” (Braun/McConnell). Let’s go for decent.

Donnelly will vote for Democratic priorities about half of the time. Braun will vote for right-wing Republican priorities and continue to demonstrate his fidelity to Trump and Trumpism all of the time.

A Republican friend has come to the same conclusion. Commenting on the Donnelly/Braun race, he wrote that Braun, in his view, had violated one of Indiana’s most important values by running explicitly as a “Christian.”

Does that not make it appropriate to ask which biblical verses he adheres to and which he does not? Which he elevates and which he dismisses? Perhaps candidates will need on a scale of 1 to 10 to rate their conviction in various tenets of Christian faith, so we know who to trust.

How are these questions not appropriate if Braun runs as if Christianity is a qualification for office, when in Indiana, it explicitly is not.

I’m not being clever. Braun’s kind of campaigning is so outrageous that our Ancestors here saw through it…. Recognized the danger and the nonsense…and banned religion as a qualification for government. I don’t think anybody who doesn’t understand that has any business near the levers of power.

I agree. But even if Braun weren’t so obviously an eager participant in the Trumpist assault on American and Hoosier values, even if he wasn’t touting his Christian credentials at a time when Trump is demonizing immigrants and engaging in rhetoric that encouraged a rightwing fanatic to mow down eleven Jews, a vote for Donnelly would still be important.

Why? Because Donnelly’s first vote will be against Mitch McConnell, and McConnell–aka the most evil man in America–is the gravedigger of American Democracy. And a vote for Donnelly–warts and all– is an opportunity to cast a vote against Mitch McConnell.

And any vote against Mitch McConnell is a vote to be proud of.

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