Tag Archives: reform

The Only Real Question

When I was a new lawyer, practicing in what was at that time a big law firm (52 lawyers), the partner I worked for insisted that there was only one legal question: what should we do?

In other words, while we might analyze the legal issues in the matter before us, while we might determine what mistakes our client or others had made, that analysis was only important to the extent it helped answer the question, which was “what should be done?”

I think about that focus a lot, because it’s the same question we need to be asking about America’s political situation.

It’s easy to be cynical these days. It’s easy to fall into a position of a “pox on both/all their houses.” There are people who take–and loudly voice– that approach every time Trump or McConnell or others in the GOP do something destructive or venal–which is pretty much every day. Yes, they say, the GOP is terrible, but the Democrats aren’t much better. People in both parties are bought and paid for. The entire political class is corrupt and self-serving, everyone in Washington has sold out to the plutocrats, and the same plutocrats own the news media so we aren’t getting the whole story. Etc.

I don’t happen to agree with that broad-brush indictment, but let’s say–for the sake of argument–that it’s true. If our entire political class is corrupt, what should be done? That is a question that the cynics never answer–and seldom even ask.

One remedy, of course, would be revolution. History suggests that violent revolutions rarely achieve their stated goals–that after blood is shed and lives disrupted, the “soldiers” of the revolution who assume power end up being as self-serving and corrupt as the people they displaced. In any event, in today’s U.S., revolution is highly unlikely.( It would also be highly unlikely to succeed, despite all those gun hoarders who insist that they need weapons to repel government tanks and artillery.)

I suppose we could all just “get over it,” to use Mick Mulvaney’s inelegant phrase. Just mutter and growl, and learn to live with a degraded and unprincipled system. Like the Russians.

Or we could begin the arduous but necessary process of reform with the recognition that there are a lot of people who go into government for the right reasons, whose behaviors may sometimes be constrained by “the system,” but who are honorable, who want to serve the public good and who act accordingly.

We could also distinguish between a political party that has gone completely off the rails (a recognition that is particularly painful for someone–like me–who worked for that party for 35 years) and a party that includes a wide range of people, some of whom are exemplary and some of whom are considerably less admirable. We could then support the party that is, today, clearly the lesser of two evils.

Then, if we wanted to do more than bitch indiscriminately, if we wanted to clean up those areas of our governance that have rotted out over time, we could get off our butts and get to work.

We could return civics to public school curriculums, help marginalized folks participate in the political process, lobby for an election law overhaul that would deter gerrymandering and vote suppression and make it easier to cast a ballot. We could support–or reestablish–local news organizations that would recognize their responsibility to act as local government watchdogs. Those of us who have the time and flexibility could research policy proposals, attend public meetings, and call or message our elected officials.

An informed electorate could engage in the admittedly hard work of incremental reform–which, despite the lack of glamor and the need to partner with imperfect people, is the way virtually all sustainable reforms get done.

We could act like citizens rather than subjects.

 

 

 

 

What Now?

I’ve been asked to make a speech addressing a question that several  commenters to this blog have asked: what now? How do we rescue our democracy? Here’s an abbreviated version (still long–sorry) of what I plan to say.

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Let me begin by admitting that I was stunned and dismayed by the election’s result. Anyone who isn’t concerned about handing nuclear codes over to someone both thin-skinned and unstable hasn’t been paying attention.

That said, a Hillary Clinton Presidency would have simply been a continuation of the Obama years: irrational Republican opposition to anything and everything the President proposes, even when those proposals originated with Republicans. It would simply have delayed the day of reckoning, and the realization of the extent to which we have lost important American democratic norms.

That loss has been increasingly obvious for some time. Pundits and political scientists have their pet theories for how this has happened: In American Amnesia, for example, Jacob Hacker and Paul Pierson focused upon what they call a “war on government” that has accelerated since the Reagan Administration; in Democracy for Realists, Christopher H. Achen & Larry M. Bartels argued that the generally accepted theory of democratic citizenship is inconsistent with actual human nature. Much of that analysis has been intriguing. None of it that I’m aware of, however, has attempted to answer the question you have asked me: what should we do and why should we do it?

We don’t always appreciate the extent to which cultural or legal institutions—what we call folkways or norms—shape our understanding of the world around us.  In some cases, institutions that have worked well, or at least adequately, for a number of years simply outlive whatever original utility they may have had, made obsolete by modern communications and transportation technologies, corrupt usages, or cultural change. Such obsolescence is a particularly acute element of American political life today.

Eight examples:

The Electoral College. In November, Hillary Clinton won the popular vote by approximately 2.85 million votes. Donald Trump won the Electoral College because fewer than 80,000 votes translated into paper-thin victories in three states. Thanks to “winner take all” election laws, Trump received all of the electoral votes of those three states. “Winner take all” systems, in place in most states, award all of a state’s electoral votes to the winner of that state’s popular vote, no matter how close the result; if a candidate wins a state 50.1% to 49.9% or 70% to 30%, the result is the same; votes cast for the losing candidate don’t count.

The Electoral College gives  outsized influence to swing states, is a disincentive to vote if you favor the minority party in a winner-take-all state, and over-represents rural and less populated states. (Wyoming, our least populous state, has one-sixty-sixth of California’s population, but it has one-eighteenth of California’s electoral votes.) It advantages rural voters over urban ones, and white voters over voters of color. In 2016, Hillary Clinton drew her votes largely from women, minorities, and educated whites, and those voters were disproportionately urban; Trump supporters were primarily (albeit not exclusively) less-educated white Christian males, and they were overwhelmingly rural.

Akil Reed Amar teaches Constitutional Law at Yale Law School; he says the Electoral College was a concession to the demands of Southern slave states. In a direct-election system, the South would have lost every time because a huge proportion of its population — slaves — couldn’t vote. The electoral college allowed slave states to count their slaves (albeit at a discount, under the Constitution’s three-fifths clause) in the electoral college apportionment. Amar notes that Americans pick mayors and governors by direct election, and there is no obvious reason that a system that works for those chief executives can’t also work for President. He also points out that no other country employs a similar mechanism.

Jamin Raskin, a Professor of Constitutional Law at American University, and a Congressman representing the state of Maryland, favors the National Popular Vote Project, a nationwide interstate agreement to guarantee the presidency to the candidate who receives the most popular votes. Under the NPV, all of a participating state’s electoral votes would go to the presidential candidate receiving the most popular votes overall. It would take effect only when enacted, in identical form, by states holding a majority of  electoral votes. To date, states possessing 132 electoral votes – 49% of the 270 electoral votes needed to activate it – have signed on. As Raskin says:

Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.

Partisan gerrymandering. After each census, states redraw state and federal district lines to reflect population changes. The party that controls the state legislature at the time controls the redistricting process, and draws districts to maximize its own electoral prospects and minimize those of the opposing party. The process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have shown how redistricting advantages incumbents, and shown that the reliance by House candidates upon maps drawn by state-level politicians reinforces “partisan rigidity,” the increasing nationalization of the political parties.

The most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. What is the incentive to volunteer or vote when it obviously doesn’t matter? It isn’t only voters who lack incentives for participation, either; it is difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no meaningful choice.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. Voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places often do not include the voting booth.

In safe districts, the only way to oppose an incumbent is in the primary–and that means that challenges usually come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. Republican incumbents will be challenged by the Right and Democratic incumbents from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. This system produces nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of ever-more-precise state-level and Congressional district gerrymandering is a growing philosophical gap between the parties and— especially but not exclusively in the Republican party— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

After the 2010 census, Republicans dominated state governments in a significant majority of states, and they proceeded to engage in one of the most thorough, strategic and competent gerrymanders in history. The 2011 gerrymander did two things: as intended, it gave Republicans control of the House of Representatives; the GOP held 247 seats to the Democrats’ 186, a 61 vote margin– despite the fact that nationally, Democratic House candidates had received over a million more votes than Republican House candidates. But that gerrymander also did something unintended; it destroyed Republican party discipline. It created and empowered the significant number of Republican Representatives who make up what has been called the “lunatic caucus” and made it virtually impossible for Republicans to govern.

The Electoral College and Gerrymandering are the “big two,” but there are other changes that would reinvigorate American democracy.

The way we administer elections is ridiculous. State-level control over elections made sense when difficulties in communication and transportation translated into significant isolation of populations; today, state-level control allows for all manner of mischief, including—as we’ve recently seen– significant and effective efforts at vote suppression. There are wide variations from state to state in the hours polls are open, in provisions for early and absentee voting, and for the placement and accessibility of polling places. In states that have instituted “Voter ID” laws, documentation that satisfies those laws varies widely. (Voter ID measures are popular with the public, despite the fact that in-person voter fraud is virtually non-existent, and despite clear evidence that the impetus for these laws is a desire to suppress turnout among poor and minority populations likely to vote Democratic.)

State-level control of voting makes it difficult to implement measures that would encourage more citizen participation, like the effort to make election day a national holiday. A uniform national system, overseen by a nonpartisan or bipartisan federal agency with the sole mission of administering fair, honest elections, would also facilitate consideration of other improvements proposed by good government organizations.

Campaign Finance/Money in Politics. Common Cause sums it up: “American political campaigns are now financed through a system of legalized bribery.”  But big contributions  aren’t the only ways wealthier citizens influence policy. The ability to hire lobbyists, many of whom are former legislators, gives corporate interests considerable clout. Money doesn’t just give big spenders the chance to express a view or support a candidate; it gives them leverage to reshape the American economy in their favor.

A system that privileges the speech of wealthy citizens by allowing them to use their greater resources to amplify their message in ways that average Americans cannot does great damage to notions of fundamental democratic fairness, ethical probity and civic equality.

The filibuster. Whatever the original purpose or former utility of the filibuster, when its use was infrequent and it required a Senator to actually make a lengthy speech on the Senate floor, today, the filibuster operates to require government by super-majority. It has become a weapon employed by extremists to hold the country hostage.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate changed several of its rules and made it much easier to filibuster. The new rules allowed other business to be conducted during the time a filibuster is theoretically taking place. Senators no longer are required to take to the Senate floor and argue their case. This “virtual” use, which has increased dramatically as partisan polarization has worsened, has effectively abolished the principle of majority rule: it now takes sixty votes (the number needed for cloture) to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill, and allows senators to effortlessly place personal political agendas above the common good and suffer no consequence.

Excessive democracy isn’t as important as many of the others, but it’s not insignificant. When we go to the polls, we face choices that few of us are sufficiently informed to make. At the state level, voters choose not only governors, but Secretaries of State, State Auditors, Superintendents of Public Instruction and Attorneys General; at the local level, we vote for Recorder, Auditor, Treasurer, Clerk and Coroner. I find it hard to believe that the average voter investigates the medical credentials of the contending coroner candidates, or the administrative skills of those running for Auditor.

In the real world, most voters make these choices on the basis of party affiliation. That being the case, it would make more sense to elect Governors and Mayors, and allow them to appoint people to most of these offices. That would improve accountability, since the executive making the appointments would be responsible for the choice of the individuals involved. When the positions are elective, chief executives can reasonably distance themselves from scandals or incompetence by pointing out that the officeholder was the choice of the voters.

Making many of these positions appointive would make voting simpler and faster, without doing actual damage to democratic decision-making. Removing a layer of “excess” democracy is hardly as important as reforming redistricting or ensuring that the Electoral College votes for the winner of the popular vote, but it would reinforce an important element of governmental legitimacy: the belief that public officials hold office as a result of a process in which informed citizens make considered democratic choices.

Substandard civic education. I won’t belabor this, but when significant segments of the population do not know the history, philosophy or contents of the Constitution or the legal system under which they live, are ignorant of basic economic principles and don’t know the difference between science and religion, they cannot engage productively in political activities or accurately evaluate the behavior of their elected officials.

The final institution that has massively failed us also doesn’t need much editorial comment from me: the current Media—including talk radio, Fox News, and the wild west that is the Internet.

The Pew Research Center published an extensive investigation into political polarization and media habits in 2014; among their findings was that “consistent conservatives” clustered around a single news source: 47% cited Fox News as their main source for news about government and politics, with no other source even close. Consistent liberals listed a wider range of news outlets as main sources — no outlet was named by more than 15%.

People who routinely consume sharply partisan news coverage are less likely to accept uncongenial facts even when they are accompanied by overwhelming evidence. Fox News and talk radio were forerunners of the thousands of Internet sites offering spin, outright propaganda and fake news. Contemporary Americans can choose their preferred “realities” and simply insulate themselves from information that is inconsistent with their worldviews.

America is marinating in media, but we’re in danger of losing what used to be called the journalism of verification. The frantic competition for eyeballs and clicks has given us a 24/7 “news hole” that media outlets race to fill, far too often prioritizing speed over accuracy. That same competition has increased media attention to sports, celebrity gossip and opinion, and has greatly reduced coverage of government and policy. The scope and range of watchdog journalism that informs citizens about their government has dramatically declined, especially at the local level. We still have national coverage but with the exception of niche media, we have lost local news. The pathetic Indianapolis Star is an example. I should also point out that there is a rather obvious relationship between those low levels of civic literacy and the rise of propaganda and fake news.

The fundamental democratic idea is a fair fight, a contest between candidates with competing policy proposals, with the winner authorized to implement his or her agenda. Increasingly, however, those democratic norms have been replaced by bare-knuckled power plays. The refusal of the Republican-led Senate to “advise and consent” to a sitting President’s nominee for the Supreme Court was a stunning and unprecedented breach of duty that elevated political advantage over the national interest. Just after the election, North Carolina Republicans called a special session and voted to strip the incoming Democratic Governor of many of the powers of that office.

Such behaviors are shocking and damaging deviations from American norms.

These and other demonstrations of toxic partisanship have undermined trust in government and other social institutions. Without that trust—without a widespread public belief in an overarching political community to which all citizens belong and in which all citizens are valued—tribalism thrives. Especially in times of rapid social change, racial resentments grow. The divide between urban and rural Americans widens. Economic insecurity and social dysfunction grow in the absence of an adequate social safety net, adding to resentment of both government and “the Other.” It is a prescription for civic unrest and national decline.

If Americans do not engage civically in far greater numbers than we have previously—If we do not reform our institutions, improve civic education, and support legitimate journalism—that decline will be irreversible. The good news is that there is evidence that a revival of civic engagement is underway.

We the People can do this.

But we have a lot of work to do if we are going to save American democracy, and there really is no time to waste.

 

 

Producing Educated Citizens–or Worker Bees?

A recent, lengthy post at Talking Points Memo blames conservatives, liberals and accrediting agencies for a decline in the excellence of American higher education–a decline that is widely remarked upon.

First comes conservatives seeking a corporate transformation or restructuring of higher education. One option comes through the rise of for-profit private colleges, offering a game plan of expensive tuition and pricey administrators, delivered mostly with low cost adjunct professors in often cookie-cutter, interchangeable curriculum delivered online.

This is Fordism coming to higher education… The other option is traditional schools adopting this model; employing business leaders to run schools and developing cost containment policies aimed mostly at standardizing curriculum. It is top-down decision-making premised upon treating faculty no differently than an assembly line worker….The result: a market-driven product devoid of innovation, creativity, and intellectual challenge.

Liberals come second, often joined by religious conservatives, bent on enforcing political correctness on campus and in producing a curriculum that offends no one. Captured in the Atlantic by Greg Lukianoff and Jonathan Haidt in their article “The Coddling of the American Mind,” there is a push to insulate students from ideas and words that they do not like. Across the country schools are adopting policies demanding trigger warnings or alerting faculty to forms of microaggression that students find objectionable. The result is not only an erosion of academic freedom but a curriculum that is uninteresting and devoid of learning.

Finally comes the accrediting agencies who have taken the assessment lessons from K-12 and are imposing them on higher education. They demand schools measure and test students and curriculum by developing a complex process of goals, objectives, rubrics.

I would add to these indictments a more foundational issue: until we reach agreement on what we mean by education, we will never be able to focus on the question of how best to provide it.

Far too many “education reformers” at all levels fail to recognize the fundamental difference between genuine education and job training–between intellectual flowering and the inculcation of skills needed by the marketplace. It doesn’t help that state legislatures and Commissions on Higher Education focus on graduation rates and  employment metrics to the exclusion of all else.

Evidently, if you can’t count it, it doesn’t count.

It’s probably heresy for a Professor to say this, but not every high school graduate is a candidate for college. There is nothing wrong with job training–it’s important and entirely legitimate– and such training can meet the needs of a number of students. If we were to reserve the university experience for young people who display intellectual curiosity, a capacity for serious scholarship and/or a demonstrable passion for the life of the mind, both the institutions and their graduates would benefit.

As a bonus, we could trim those bloated administrations, disabuse ourselves of the notion that educational institutions should be “run like businesses,” and stop coddling students who demand protection against ideas they find threatening.

Ideas can be right or wrong, comforting or offensive–but to find any idea “threatening” is a signal that one is unfit to be educated.

 

Testing….1,2,3…Testing

I’ve been watching school reform efforts for several years now, and I’m depressed.

Most of the organizations that have formed to improve our public schools are populated by wonderful, well-meaning people, and most of the men and women who have chosen to teach in those schools are caring, dedicated professionals. So you’d think they would all be talking to each other and working together to identify and eliminate the barriers to better schools.

Instead, they seem to be at war with each other.

Now, I understand that focusing on common goals has been made more difficult by  the “take no prisoners” attitudes of ideologues like the departed-but-certainly-not-missed Tony Bennett, whose arrogance and autocratic tactics created a backlash of resentment among the teachers he regularly and unfairly bashed. (It shouldn’t surprise us when people who’ve been told they are overpaid and underperforming nitwits are unenthusiastic about collaborating with those who leveled the accusations.) But Bennett and his equally tone-deaf boss are gone, and the folks on the front lines–the teachers–need to help the real reformers understand what they need.

I haven’t been a high school teacher for nearly 50 years; neither do I have mastery of the reform literature. I’m just an interested observer who believes that public education is an immensely important public good, so you should take the following observations with the appropriate amount of salt.

Reformers are absolutely right to want teacher accountability. But teachers are absolutely right that high-stakes testing is not accountability.

Testing to figure out what kids know is a time-honored necessity; testing as a way to evaluate teacher performance is deeply problematic. For one thing, poor people move so frequently that turnover in many inner-city schools exceeds 100% during the school year, and the kids being tested at the end of the year aren’t the same kids who were tested at the beginning. Tests in such classrooms are meaningless.

Even in more stable environments, the current testing regime does significant damage–to students, who are being taught that there is always a “right” answer, and to teachers who are forced to focus their efforts on the subjects being tested and neglect other, equally important lessons. Furthermore, years of research demonstrate that more affluent kids test better for lots of reasons unrelated to the quality of classroom performance. If teachers are going to be evaluated and paid based upon test results, a lot of good teachers are going to leave the poorer schools that need them most and head for precincts where the students are better off and easier to teach.  (And yes, I know the theory is that we are testing for improvement, not absolute knowledge, but that theory is too often just that–theoretical.)

Here’s a heretical thought: before we engage in programs to assess accountability, let’s see if we can achieve agreement on what we mean by “education” and “quality instruction.” In other words, let’s be sure we know what instructors are supposed to be accountable for.

Too many of the self-styled “reformers” (not all, but too many) equate education with job training and quality instruction with (easy to test) rote learning.  For that matter, too many teachers agree with those definitions.

The people who genuinely want to improve public education–and there are a lot of them in both reform organizations and classrooms–  start by tackling the hard questions: what do kids really, really need to know in order to function in 21st Century America? What skills are essential? What are the barriers to imparting that information and those skills?  What additional resources do poorer kids need?  How much money does it take to provide a  good education, and how much does ignorance cost us?

Here’s how you can separate out the genuine education reformers from the ideologues and shills: real reformers understand the importance of public education’s civic mission. Because they understand the constitutive function of the public schools–because they understand that education is more than just another consumer good–they want to fix public education by working with teachers and parents and policymakers to make our public school systems work.

The genuine reformers aren’t the ones insisting that we  privatize or abandon those schools.

 

 

 

Exit, Voice and Reform

Albert Hirschman, an eminent economist and political thinker, has died. He was a towering figure, an economist who refused to reduce human interactions to commercial transactions, and who understood that human behavior is motivated by more than a desire for comparative advantage.

The book for which Hirschman is best known is his classic  Exit, Voice, and Loyalty. The Economist gives a good summary of its basic argument:

Mr Hirschman argued that people have two different ways of responding to disappointment. They can vote with their feet (exit) or stay put and complain (voice). Exit has always been the default position in the United States: Americans are known as being quick to up sticks and move. It is also the default position in the economics profession. Indeed, when his book appeared, Milton Friedman and his colleagues in the Chicago School were busy extending the empire of exit to new areas. If public schools or public housing were rotten, they argued, people should be encouraged to escape them.

Mr Hirschman raised some problems with the cult of exit. Sometimes, it entrenches the status quo. Dictators may rule longer if their bravest critics flee abroad (indeed, Cuba uses emigration as a safety valve). Monopolies may have an easier life if their stroppiest customers find an alternative. Mr Hirschman got the idea for his book during a ghastly train journey in Nigeria: he concluded that the country’s railways were getting worse because the most vocal customers were shifting to the roads.

Exit may also reinforce the cycle of decline. State schools may get worse if the pushiest parents take their custom elsewhere. Mr Hirschman worried that a moderate amount of exit might produce the worst of all worlds: “an oppression of the weak by the incompetent and an exploitation of the poor by the lazy which is the more durable and stifling as it is both unambitious and escapable.”…

But Mr Hirschman’s overall point was not that exit is bad but that exit and “voice” work best together. Reformers are more likely to be able to fix an organisation if there is a danger that their clients will leave. The problem with Friedman et al was that they focused only on exit and not on how exit and voice could be used to reinforce each other.

I’ve quoted a rather long segment of the Economist’s piece, because Hirschman’s point is critically important, and all too frequently ignored.

Without the right to exit, there can be no freedom. But if our only choice is between shutting up and leaving, there can be no progress, no institutional improvement. That’s the great virtue of dissent, of voice–something the  “love it or leave it” folks seem unable to grasp.

Sometimes, we want to remain in a situation–a marriage, a job, a country–because we care enough to want to improve it.