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“Deep State” Paranoia

Sun, 03/19/2017 - 17:24

In the past several weeks, we have heard ranting out of the White House about a “deep state” conspiracy to frustrate Donald Trump’s objectives.  It is only this current fact-free administration which could turn a well-understand aspect of the American government — mentioned in political science courses for over half a century — into a sinister conspiracy aimed at President Trump.  It’s no secret that bureaucracies across the world (not just in the U.S.) function in their own peculiar ways to keep the government functioning — even when elected officials would rather destroy the government.  There are, of course, some features that are driving the Trumpistas crazy.

  1.  The United States is not a dictatorship.  The jobs and duties of the various departments and agencies are defined by statutes and existing regulations.  Because there are grey areas in these statutes and regulations, the executive branch does have some discretion in interpreting them (as discussed regularly in the posts about legal issues).  However, the President can’t on his own enact new laws or repeal existing laws.  Thus, however, much a President might see a need for new revenues to balance the budget, he can’t simply order the Treasury Department to start collecting a new $1 per day tax on every hotel room in the country.  Similarly, the President can’t simply order the permanent resident status of a legal immigrant simply because that permanent resident posts a tweet criticizing the President.

2.  At the federal level, most individuals working for the federal government are careerists who have civil service protection.  Even for agencies that are exempt from civil service protection (which includes many state and city governments), there are First Amendment protections against discharge for political reasons.  Barring gross insubordination, these individuals can keep on doing their jobs as they understand their responsibilities.

3.  Most career civil servants identify with the mission of their department or agency.  It was not a shock that the organizations representing Immigrations and Customs Enforcement and Border Patrol employees were sympathetic to Trump’s proposals to beef up border security and to step up deportation activity.   Similarly, you would expect that career attorneys in the Civil Rights Division believe in enforcing civil rights laws and that those working in the foreign service believe in diplomacy and the traditional foreign policy objectives of the U.S. government.  You may have some temporary influx of “rookies” when government changes hands that agree with the goals of the new administration.  In the long term, however, it is hard to stay in a job when you disagree with the basic goal of the job.  Additionally, many jobs in the federal government (e.g. EPA and the FDA) require a certain educational background.  Most rational persons do not choose their college majors or graduate/professional schools for the purpose of one day undermining a government department.

The combination of these three factors lead to the fact that most employees in most departments are going to keep plugging away under standard operating procedures.  Attorneys in the various parts of the Justice Department (and in the U.S. Attorney’s Offices around the country) will keep on with their current investigations.  The new higher-ups may give specific directions of new matters that they want investigated or a shift in emphasis.  The new bosses may also compromise or settle pending cases on better terms for the other party than the careerists would like.   But an FDA person reviewing an application is not going to recommend approval of a new drug that does not meet the established standards for approval just because President Trump thinks those standards are too tough.  Similarly, an EPA analyst is not going to recommend that a toxic level of pollution be allowed just because Scott Price wants the EPA to look the other way.  This built in behavior is not a formal conspiracy.  It’s just the nature of the bureaucracy.   Prime Minister Trudeau in Canada almost certainly has similar problems with bureaucrats who resist new progressive policies in certain areas.

There are some additional factors that are probably causing Trump unending headaches.  First, as has been discussed multiple times over the years, the U.S. system of government is different from the way that parliamentary democracies work.  In a place like Canada or the United Kingdom, the “political spots” in the government are filled within the first week after the new government takes power (and any vacancies that arise are quickly filled).  In the U.S., the nomination and confirmation process takes an eternity and there is almost always a significant number of vacancies waiting to be filled.  If you haven’t appointed an Assistant Secretary of Labor for OSHA, it is rather hard to implement changes to workplace safety.   When the low levels on the chain of command are empty, more issues rise to higher levels.   When you have an Assistant Administrator for the Office of Water in the EPA, that person can make sure that the senior careerists within that office are following the new policies.  (There will always be things happening at lower levels that may not float up to the Assistant Administrator, but it is much easier for the Assistant Administrator to get that part of the EPA in line than for the Administrator of the EPA to keep all of the units within the EPA following the preferred policies of the White House.)

Second, as noted above and previously, statutes establish programs and set standards for those programs.  As the Obama Administration learned repeatedly (and the Trump Administration is beginning to learn), parties that do not like how the Administration decides a certain issue can challenge those decisions in court.  In some areas, the law has enough give that the Administration has substantial discretion.  In other areas, the key question is one of fact and — once the facts are established — the Administration has very little discretion.   When any administration starts puts its own policy preferences over the facts and the law, the courts will side with those challenging those policies.

In short, whether through its own paranoia or unwillingness to admits its own flaws, the Trump Administration is seeing a conspiracy where none exists.  Instead, the judicial branch and the civil service is acting like they do with every administration.  But it’s much easier claiming that you are the victim of a conspiracy than admitting that the Trump White House is simply incompetent and “Not Ready for Prime Time.”

Categories: Political Action

Donald Trump Is/Is Not Nehemiah Scudder

Sun, 03/12/2017 - 18:16

One of the advantages that science fiction has as a genre is the ability of writers to recast issues by presenting them in another place and time.  On occasion, the transformation of our problems into another situation can be forced (e.g., the original Star Trek episode in which the racial conflict was between those who were black on the left side of the face and those who were black on the right side of the face).

During the third quarter of last century, one of the top science fiction writers was Robert Heinlein.  While most famous for his novel Stranger in a Strange Land, his early career consisted of a series of short stories and novellas that formed a “future history” — taking the United States from the mid-20th Century until around 2200.   In several of the stories in this sequence, Heinlein mentions Nehemiah Scudder, a preacher who became popular enough to be elected president in 2012.  Scudder then establishes a religious dictatorship which governs until it is overthrown around 2100.  While Heinlein never got around to writing a story focused on Scudder’s rise to power, his summary of that rise in other stories identified some aspects of American politics that were not immune to the rise of a demagogue.  So in what ways does the election of Donald Trump mirror those aspects and in what ways do they differ.

The obvious difference is that Donald Trump is not a fundamentalist preacher.  However, writing in 1941, (well before the rise of the Moral Majority), Heinlein noted the power of fundamentalism in American power.  While Trump should not have been the natural candidate for fundamentalists, somehow he managed to get the support of fundamentalists over other “better fitting” candidates during the primary followed by the usual support for the Republican nominee in the general election.

Another significant difference is that Heinlein did not have the advantage of knowing how the two parties would revise their presidential nomination process.  As such, Heinlein forecast an America in which there were multiple third parties splintering the vote — a forecast that was not outrageous in the 1940s.  (In 1948, both the Dixiecrats and the Progressives managed to get 2% of the vote and — as late as 1932 — the Socialists managed to get 2% of the vote.)  However, instead of these splinter groups emerging as significant third parties, they have become factions within the two major parties.

Heinlein did get two key factors right — the low number of votes and the ability to win with a plurality.  According to Heinlein’s later descriptions of the election of 2012, only 63% of registered voters voted (and less than 50% of eligible voters) and Scudder got 27% of the popular vote which translated into 81% of the electoral vote.  While not great, in the November Presidential elections, a majority of eligible voters do tend to vote — around 55% in 2016.   However, the same can’t be said for the party primaries.  Comparted to the 137 million who voted in November, only around 62 million (approximately 25% of eligible voters participated in the primary elections).  Additionally, while the third parties only represent a small share of the vote, the primary vote tends to be very splintered.  While the Democratic Party rules (proportional in every state and district) force a successful candidate to get close to a majority of the primary vote (Clinton got approximately 55% of the Democratic Primary vote), the Republican Party rules allow a candidate to rack up a significant majority of the delegates while winning narrow pluralities in states and districts (Trump ended up with 44% of the vote despite being essential unopposed in the last month of the campaign and was only around 40% when the last of his opponents stopped campaigning).  Trump won a lot of delegates in states where he got around one-third of the vote.  (By March 15, Trump had just slightly less than 50% of the delegates while getting around 37% of the vote.)  The low turnout in primary elections plus the use of plurality rules makes it possible for “outsider” candidates to contend and win the party nomination even if they do not speak for either the majority of party loyalists (i.e. those who regularly vote in the party primaries and work for the party’s candidates) or the majority of the party supporters in the general election.

The big things that Heinlein got wrong were the relative weakness of the President and the separateness of elections.  Winning the presidency is not enough in the U.S.  The composition of Congress and state governments matters too.  Additionally, while a president or a presidential candidate can have influence on other races (especially in the general where ticket splitting is becoming less common), candidates still have to run for these lesser offices on their own.  Over the past sixty years, both parties have become somewhat hollow, lacking the ability to restrict the candidates who run in primaries or to assure the nomination for the leadership’s preferred candidate.  Every candidate (whether primary challenger or incumbent) has to run and raise money in their own districts, and no president has the ability to deliver enough money to every congressional district and state legislative district to guarantee a party composed of clones.  Furthermore, even the most popular president is unable to deliver victories for his party for every state-wide official and every state legislative chambers.   As such, as we have seen with challenges to the Muslim travel ban, there will be pockets of opposition to every president.  (And there is enough of a dedication to the rule of law from judges and the militaries to prevent a president from crushing the opposition through martial law.)

One last factor that played a part in Heinlein’s predictions was the “cult of personality” around political leadership.  While we are not yet at the level of the near-deification of Scudder by his followers, we are seeing a fluidity of political beliefs.  Since the election, polls of Republicans show vast changes in their answers to certain policy questions — friendlier toward Russia, more protectionist, etc.  If party loyalty stops being about a unified world of a view and more about an us versus them battle for power, it becomes much easier for demagogues to win.

Some takeaways from this diversion into whether Trump resembles a fictional account of how the U.S. could slip into a dictatorship.  First, whatever changes may occur to the Democratic rules for the 2020 nomination cycle, they must still contain some assurance that a nominee must represent the consensus of the party.  Second, every election matters — whether a primary or a municipal or off-year or mid-term election.  Getting good candidates to fill these offices provide a significant check on an out of control president.  We need to start working on 2018 now.  Third, turnout matters.  The nature of our government means that there really are no minor elections.  Even the presidential general election turnout is inadequate, but we desperately need to improve the turnout in these other elections.  If every Democrat who voted in 2018 for a Democratic House candidate votes for a Democratic House candidate in 2018, we would win control of the House.  Fourth, we need to work on the Democratic brand.  A lot of the critique that I have heard about the 2016 elections reflects how poorly we have been conveying the Democratic brand.  The Clinton campaign had positions on a lot of issues.  However, the vast majority of the voters did not know about these positions.  Voters perceived the Democrats as focusing on certain issues (aiding specific groups) that did not matter to the voters and missed the broader pro-growth policies.  While misguided, Republicans have done a better job of identifying (inaccurately) problems that they contend inhibit growth and suggesting that, if we just trust them to fix those issues, we will have growth that we have not had in decades.  They also do a much better job of getting on the same page and using the same terms to describe those problems.   It’s nice to have detailed plans, that is part of governing.  But winning elections is about having a couple of key ideas and pounding on them constantly.  A demagogue has an advantage over serious candidates in that the demagogue only has a handful of ideas and is not distracted by the details of how to address any particular issue.  (e.g., It is easy to say that we will negotiate great trade deals if you don’t have to identify what is wrong with the current deals or how you will fix them.)  There are some issues on which Democrats have done a decent job of simplifying the issue, but we tend to let our disagreements about the details out during campaigns while Republicans focus on the big picture.

As 2016 shows, the U.S. is not immune from electing a demagogue to a position of power.  The Framers of the Constitution knew this and designed barriers to keep such individuals from destroying the country.  Those barriers depend upon voters electing individuals to positions of power that have the ability to resist any attempt to convert an election win into a dictatorship.   To succeed, we need to start working hard on 2018 and 2020.


Categories: Political Action

Friday Rant: Idiots and Morons

Fri, 03/10/2017 - 06:31

A long time ago I had a boss my family referred to as “Bad Eric”. (I later had a boss named “Good Eric”). Anyway, Bad Eric thought he was a really smart guy. I’m not talking about any of those esoteric views of intelligence, he thought his actual, tested, IQ was higher than anyone else’s in the company, especially mine. This was a big deal to him. He liked to say hello to me in the following way “Good Morning, you dumb b***h”, although in fairness, he sometimes used the “c” word in lieu of the “b” word.

Working for Bad Eric was no picnic, but I did end up learning the difference between “idiot” and “moron”. It turns out that “moron” used to have a technical meaning in DSM classifications of someone with an IQ of 80 or below. (100 is average on a Bell Curve.) And so, when I talk about the stupid things that voters do, I no longer refer to them as morons, I use the strictly pejorative term “idiot”. And today, I’m going to rant about idiots. Feel free to skip to the end to find out what happened when Bad Eric and I went head to head in the quest for who was smarter.

In the past few days, a number of media outlets have gone out and interviewed Trumpkin voters who will now be affected by changes to the ACA. Their overall response is that while they do understand that they will no longer be able to afford insurance, and thus cancer treatments, insulin and other necessary medical care, they believe that  #TheAngryPumpkin will actually save them because he’ll negotiate with Paul Ryan and let them keep, basically, the ACA as it is. I kid you not. Idiots.

Rachel Maddow spent most of last night talking about  the connection between the Administration and the Russians. If you haven’t seen it, watch it here. You’ll need to sign in to MSNBC, but it will be an hour that you won’t regret.  It’s a lot of proof and the timeline. The end segments are an interview with ex-Ambassador Fried, who explains what is really going on with the State Department purge. Be smart, understand what’s at stake.

I receive a lot of  communications — emails, texts, messages…and some of them make me really angry. I’m going to share a few of things I hope to never see again. First, and this is so far the ultimate winner for 2017. Paraphrased: “My issue is the Pacific Garbage Dump. When are you going to fix that?”. It really is going to be hard to top that. If you know me personally, you are well aware of the answer I wanted to send back. Idiot.

The Indivisible team with which I work is concerned about reaching out to people of color in our county. We are planning on attending some trainings, and working to come up with a plan. I interact with a man who refers to himself as “melanic” (and I had to look it up – it means someone with a lot of melanin in his/her skin.) I offered to meet with him, invited him to a number of functions, and his response was to send me an article entitled “Your Calls for Unity are Divisive as F**k” (Source) which linked to a second article where the first line was “I don’t like white women”. (Source) No one here is an idiot, but this is not a way to win friends and influence people. I want to work together, he wants to insult me. Truly a sad situation, but at least he’s stopped calling and yelling at me.

People like to complain to me that I’m personally not doing enough to solve their problems. These “problems” involve impeaching #TrumptyDumpty, stopping the Muslim Ban, saving the ACA, making the DNC over so that it’s a progressive organization, and you get the idea. Don’t get me wrong, I get a lot of communications from people who want to work on these, and other issues, and want support and guidance. My objection is to the people who believe any one person can actually fix these things. I am unclear whether this can be attributed to laziness, or frustration, or abject terror. But I don’t have time to find out.

I’m working with five candidates running locally this year. Am providing tangible support in the form of advice, strategy planning, money, and am hoping that I’ll be able to find people who will help knock doors. Because this is the start of  how we stop the bleeding of the government. We are a representative democracy, and the only way to  move the needle is to elect local people this year, and state and Federal people next year. We do that by knocking doors and giving money until it hurts. I hope you will join me; there are elections in every state, city and town this year, next up being the jungle primary in Georgia. Here in Pennsylvania, the ballots will be announced over the next week, and then the canvassing starts. To anyone who contacts me, my answer from here on out is “are you knocking doors?” and if he/she says no, I’m done. Writing postcards and letters, and calling reps is good as far as it goes, but those people need to be replaced. It’s easier to canvass for a local person, so if you’re new, consider this year practice. And a huge YAY!!! to every person who is running for office this year. It matters in every way imaginable.

So circling back to Bad Eric. He wanted to us to take online IQ tests and see who got the higher score. I told him that we should do it the real way: he could take the Mensa test and compare his score to the one I’d gotten. A real contest. Let’s just say that I stayed a Mensa officer, he didn’t get into Mensa, and I ended up taking the job working for Good Eric at another company.

End of rant — message me if you’re ready to start canvassing, and I’ll cut your turf for your neighborhood, give you a script and training and you too can help save the world.


Categories: Political Action

Notes from your Doctor: Protecting Yourself

Wed, 03/08/2017 - 05:26

One of the microbiology journals recently reported on the transference of MRSA and C.diff in hospitals. Why do you care? Because you, or someone you love, is going to end up in the hospital and this may save a life. A group of researchers were puzzled about how secondary infections often showed up in patients who were in rooms where the patient a week earlier had had the infection. Over that week, the room was cleaned top to bottom, and possibly had an uninfected patient in said room. What they found was that MRSA and C.diff were washed down the sink, where the bacteria colonized and grew in the S-curve of the drain pipe and then worked its way up the drain, and ended up splashing out when someone washed his/her hands. How long did that process take? Yup, a week.

They’re still experimenting to see how to best take care of this issue. My guess is that they’ll need a viscous bleach that clings like drain cleaner to make sure all the bacteria is killed. But while they’re still working on it, what can you do? Personally, I’ll be pouring a cup of bleach down the sink in any hospital rooms I visit.

Next: The Muslim Ban may affect your health. Any idea how many doctors are from foreign countries? Tens of thousands. Of note, 8,400 are from Syria and Iran. And we need them, we have a huge doctor shortage because we don’t produce enough doctors to meet demand. (More on that further down.) The effects are in two general areas: newly minted doctors for hospital residency programs, and practitioners in Appalachia and the Rust Belt. If you think people won’t die because of the ban, you’re wrong. (Source 1, Source 2.)

In answer to the question of why we don’t have enough doctors, it comes back to why so many of us left private practice in the late 80’s and early 90’s. The answer is the corporatization of medicine, most notably “Managed Care.”  There was a specialty neurology practice a few doors down from my office in the early 90’s. What these four men did was to diagnose and treat conditions that a lot of other people wouldn’t touch. Realize that now, we have much more advanced diagnostic equipment and treatment protocols. Back then, they had a BEAM scanner. While not in common use now, it was cutting edge back then, allowing them to diagnose lesions other methods couldn’t find, thus allowing for earlier and more successful surgery. They charged $400 for a scan. A scan actually cost them about $250 to perform, given the cost of the lease on the machine and related overhead. When managed care got through with them, they could be paid $150 from the insurance company, and about $25 from the patient. They were all in their 50’s, and when they left the practice, one opened a book store (for any millenials, small bookstores used to be incredibly popular), one took up being a charter captain in the Caribbean, one joined his son’s roofing business, and the last one went into teaching. Countless lives lost.

It’s becoming increasingly difficult for the medical and allied professions to attract young people. The high cost of education, the long hours (they just reinstated the 36-hour straight residency “days”), the forced lack of patient interaction, the litigiousness of society, it all adds together to people selecting other professions. This occurs as the need for additional professionals are necessary due to population growth. Further when people do choose to join the profession, they tend to practice in cities and suburbs, leaving rural areas under-served.

Finally: I’m not personally convinced that the GOP health disaster plan is going to fly. Numbers to keep in mind: Ryan can only lose 23 votes, the Freedom Caucus (30 members) is calling RINOCare. Both the Club for Growth and FreedomWorks are opposed. In the Senate, Cruz, Lee and Paul are not buying in. And that’s just on the right. On the “moderate” side, a number of Senators are opposed to defunding Planned Parenthood (Collins and Murkowski, yes really), and others are apoplectic about the rollback of the Medicaid expansion (Murkowski, Gardener, Caputo and Portman). McConnell can lose 2 votes, there are 8 at risk. McConnell is a detestable ferret but he’s not stupid, and he won’t bring the bill, in its current form to the Senate floor.

Further, when it’s scored, it’s going to add substantially to the debt, scaring off actual Republican conservatives. To get past the scoring problem, there will be no way to avoid raising taxes. Never a huge sell to the crazies. You’ll hear that Ryan will try to get this passed prior to the 3 week April recess BEFORE its scored, but large groups, with huge ad budgets are going up on the air to activate their constituencies. This includes the AARP, the American Hospital Association, plus the insurance companies.  Yes, you read that right — this bill screws the insurance companies in addition to anyone who would ever be a patient in need of health care.

So fight — write your reps, get your neighbors involved, read the actual bill….but don’t panic!

Categories: Political Action

Random Thoughts for 7 March 2017

Tue, 03/07/2017 - 05:16

Years before Facebook, there was blogging. And as blogging was making a crescendo to its brief heyday, I used to send out an email every day about what was going on in the world. It took a while for the readership to hit 1,000 recipients, and then gmail decided I was a spammer, and luckily Matt and Tom let me join them here at DCW.

Almost a decade later, the world has changed, and attention spans have greatly decreased. But here is the list of what I’m thinking about today…see how far you can get.

The New House ACA Repeal Bill: Have you read it? If not, you can do so here.  (You’ll need to use the PDF download link as the front page is just lies.)  As I always tell you READ IT. Otherwise you’re just going with someone’s interpretation and it’s hard to quote your favourite insanity verbatim. It’s short, 123 pages. Nothing like the original 3,000+ ACA bill. And that matters, because the new bill lacks CBO scoring, and answers to the kind of important questions that make #NotMyCheeto complain that healthcare is difficult. Of course it’s difficult you moron, human lives are involved.

The upshot is that the underwrites are replaced with tax credits. That’s actually great if you make a decent amount of money (although there are phase-outs for individuals beginning at $75,000 and couples at $150,000) who can actually afford the premiums, but are terrible for people who need help making monthly premium payments. Further, the credits are age based, and will be great for millenials with high-deductible catastrophic policies, but too skimpy for everyone else. If you’re older or have pre-existing conditions, consider yourself officially screwed.  AARP is already on the case because people 55 – 65 will face the greatest affect.

Want to take action? Call your rep and tell a personal story about how you will be affected by this bill. Remember, read the bill first so you can be specific.

Jon Ossoff: I’m thinking a lot about Jon Ossoff. Jon’s a guy from Georgia with actual government creds, who currently works investigating crime and corruption. He’s young. He’s a progressive. And he’s running in the 18 April jungle primary to take Tom Price’s suburban Atlanta seat. For progressives, this is the second test of whether we are willing to do what is necessary to oust the racist, misogynistic, homophobic, anti-semitic haters that are the GOP. (The first test was won in Delaware’s special election last month.) You can view his site here. And you can Google him for a lot of good information on his background and the importance of this election. And as an aside, I’m a huge fan of jungle primaries.

Want to take action? This is where the rubber truly meets the road. Lots of people contact me wanting to really, truly do something in the face of the fascist takeover last November. Here’s your chance: send a check. Send a bigger check. This is a situation where money really matters. In the last election, Tom spent millions to keep his seat, while his Democratic challenger was only able to raise $14,000. Until Citizens United is repealed, money is critical to advertising and GOTV efforts. If you’ve got the time, go down to Georgia and knock doors. Personally, I’m planning on going down the weekend before the election to knock doors because that is what wins elections.

The Muslim Ban: Yes, it’s still a ban on Muslims. Yes, the intent is still to discriminate. If you read the whole EO, you’ll find a few interesting things buried within.  First and foremost, the line “any class of aliens” – this is what’s going to screw the Bannon administration in court. There are intelligence reports documenting that the six countries have not sent terrorists to the US, while other countries have. Thus, the only “class” is citizens of countries who haven’t done anything to us, while excluding countries like Saudi Arabia which has.

Want to take action? Join the ACLU and get on their monthly donation plan. Also, join “Register Me First“. If you think #NotMyFurher will stop here, you haven’t read the Bannon manifesto. Be proactive and stand with other Americans.

Wiretap #FakeNews: Not only did Obama NOT wiretap Trumpkin, not only was there no FISA warrant, but had this happened it would have been because there was direct proof that the campaign actually was colluding with the Russians.

Want to take action? ENJOY! There is nothing anyone can do: the short-fingered vulgarian is out of his depth and truly lacks understanding of how governance works. (Don’t kid yourself, Herr Bannon does know.) He’s begging for investigations, and there will be lots of them into Russian interaction with the campaign and its members. (Including Jared!) You can encourage your elected reps to investigate, but they’re already on it.

So that’s today’s rant. I hope you learned something and are spurred to direct action. SCROTUS views the world as a zero-sum game, and I say we put him on the losing side.


Categories: Political Action

The Never-ending Battle — Redistricting 2011

Sun, 03/05/2017 - 16:26

One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate.  The same is unfortunately true of disputes over the redistricting process.   We are now almost six years into the current ten-year cycle of district lines.  The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again.  You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over.  Unfortunately, we are not at that point yet.

This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission).  This week’s decision involved the Virginia House and whether the  drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment.  The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race.  Such a challenge focuses on particular district lines.

In this case, the challenges concerned twelve districts.  The original three judge panel found that race was only the predominate reason for one of the twelve districts.  In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations.  While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason.

The Supreme Court rejected the panel’s decision that race was not the predominate reason for the first eleven districts.  While an unusual shape can be circumstantial evidence of a racial gerrymander (i.e. the unusual shape suggests that something other than proper factors are being considered in the drawing of the lines), a racial gerrymander can also be shown by direct evidence (i.e. those involved in drawing the lines acknowledge that race was a significant factor).  Here there were such admissions.  Thus, even though the lines could have been based on valid considerations, the panel needs to consider what the true reasons for the lines were and if race was the main factor behind the drawing of those lines.  The Supreme Court did accept the panel’s conclusion that — for the twelfth district — complying with the Voting Rights Act was a valid reason for putting a significant emphasis on race in adjusting the final lines.  The Supreme Court did give a degree of deference to the legislature on this issue — holding that the test was whether the legislature reasonably believed that the changes were necessary, not whether they were actually necessary.

Going forward — for this case, for any case from this cycle that is still pending, and for next cycle — if the legislature looks at racial composition of the district in adjusting district lines, the districts are challengeable.  If the legislature reasonably believes that such adjustments are necessary to comply with the Voting Rights Act (primarily Section 2 barring vote dilution in light of current case law) the districts will probably survive the challenge.  In these and other cases that are currently pending on equal protection claims, there is a big question about the validity of partisan gerrymanders.  In other words, while it is improper to discriminate based on race, can the legislature discriminate based on party-identification?

Given how bad this past cycle was for Democrats, these cases are a reminder of two things.  First, we need to work hard in state elections for the next four years.  As noted above, some of the folks elected this year in New Jersey and Virginia and next year in about forty-six states will be in office in 2021 when the process starts all over again.   Now is the time to find candidates who can win seats currently under Republican control and keep open Democratic seats.  After we find these candidates, we need to work to get them elected.  (In Virginia, the Republicans have a 21-19 advantage in the State Senate and a 66-34 advantage in the State House.  In New Jersey, the Democrats have a 24-16 advantage in the State Senate and a 52-28 State House.)

Second, we have to consider changes to the redistricting process, using the right of the public to propose statutory and constitutional changes in those states that permit that.  While citizen redistricting commissions can be an improvement on the legislature getting to draw the lines (avoiding self-protection), the rules for picking those commissions matter.  (In my state, the governor picks from lists proposed by both parties with each party getting half of the seats — a formula for deadlock that results in the courts drawing the seats.)

The bigger need for change is in establishing the priorities to be used in drawing lines.  My personal belief is that progressive need to stand for an end to partisan gerrymanders and incumbent protection.  On partisan gerrymanders, my belief that any redistricting plans needs to be “party neutral.”  By party neutral, I mean a plan that meets several criteria.  First, the partisan breakdown of the median district should be the same as the partisan breakdown of the state.  For example, if (over the past three election cycles) the Republicans got 52.0% of the two-party vote for statewide candidates, then the median district should have a two-party vote for statewide candidates of approximately 52.0% for the Republicans over the same period.  If there are an even-number of districts, the two median districts should average to that same number.  There should be a maximum permissible deviation in the partisan breakdown in the median district(s) (maybe 0.1% or 0.2%).  Second, within each band from that median district, there should be a roughly even number of Democratic and Republican district.  For example, if you use 3% bands, there should be the same number of districts in which the Democrats do 0-3% better than the statewide two-party average as districts in which the Republicans do 0-3% better than the statewide two-party average (give or take one or two districts).  In short, whomever gets the most votes statewide should win the most seats, and there should be no partisan cramming and packing.

As a second level priority (after assuring partisan neutrality), district lines should comply with precinct/voting district lines.  While one-man, one-vote requires districts to be of roughly equal populations, the permissible deviation from strict equality is large enough that — in most states — there is no need to split a precinct.   Splitting precincts leads to bizarre shapes and makes it difficult for voters to figure out in which district they live.

It is only at the third tier that the redistricting authority should consider communities of interests (racial, socioeconomic, political subdivisions, etc.).  On racial and socioeconomic groupings, it is important to limit too much packing.  Putting aside unusual features (e.g. prisons, colleges) that allocate a large number of non-voters to a district, it typically only takes 55-60% of the voting age population for a unified demographic group to get their preferred candidate.  Anything larger is an attempt to dilute the voting power of that group by packing them into a small number of districts.

At the final tier, compactness is significant.  If there are two plans that get similar results in terms of political neutrality and giving communities their proper voice in Congress and state legislatures, keeping districts as small as possible and regularly shaped is preferable.  But compactness is less of a concern if it means that — in a 50-50 state — one party represents districts in which it typically get 70% of the vote while the other party represents districts in which it typically get 56% of the vote.

As noted above, incumbent protection should play no role in the process.  The redistricting authority should be barred from looking at the current residences of any sitting U.S. representative or state legislator.  If the best lines put two incumbents in the same district or move an incumbent into a district that is less safe, that’s just the way that the process should work.  Voters have the right to choose whom they want to represent them (and incumbents are free to move to more favorable districts).  Incumbents do not have the right to choose their voters in a way that deprives voters of control of their government.

The next four years will not be easy, but — if we wait until the 2020 census results are released in the Spring of 2021 — the result will be more states like Colorado, Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin where, even when we win the statewide vote, we still are unable to win the majority of U.S. House seats.

Categories: Political Action

Deciphering the Federal Budget

Tue, 02/28/2017 - 05:43

Tonight 45 will speak about the budget plan his folks leaked out yesterday.  He’ll likely speak about other things, also, but that budget is all over the news and he’ll capitalize on that.  However, it’s rare that Congress actually passes a budget (the last time was in 2015, and that was the first time in six years) and rarer still that the presidential framework made it through the process.

So, let’s take a look at what was proposed, where it falls apart, and then what the process actually involves. Go get a cup of coffee, you’re going to need it.

First, the good news. Appropriations come from Congress, not from the Executive branch.  Per the Origination clause in the Constitution, all appropriations bills must start in the House, although the Senate may concur and/or offer amendments. In real life, normally this leads to negotiations between the Chambers prior to anything being enacted. Thus, nothing is happening quickly. That means there is time to lobby your reps for things that matter to you.

Next, the massive increase in military spending. It’s pretty obvious from what Cheeto said today about this being a “Nationalistic” budget and how we need to win wars, that he’s committed to getting a lot of Americans killed for no reason. To get the money through Congress would be a hard slog as we are a war-weary nation. Further, it would require 60 votes in the Senate (think: 8 Democrats) to remove the existing cap, and legislation to work around sequestration.  However, and this is the scary part, there is something called “overseas contingency operations” spending.  That’s how they fund war. And it is, de facto, a black hole of your tax dollars that don’t get accounted for in the budget. It’s a backdoor into funneling money to defense without having to deal with the caps.

But assuming that the increased defense funding would come via the budget process, there is still the need to make cuts to stay within the requirements of sequestration, and to go with the “spend a dollar, cut a dollar” logic that avoids ballooning the deficit.

So where does money go from the Federal budget? A great source for information is the National Priorities Project, which not only tracks this information, but provides a great deal of background to help people understand the process.

The budget  is divided into three parts: mandatory spending, discretionary spending, and interest on the debt. Approximately 65% is mandatory spending: While the Bannon Administration can make some cuts, today’s promise is that Social Security, Medicare and Medicaid will remain untouched, and assuming that Veteran’s Affairs will likewise be left alone means that only about 8% of the mandatory part of the budget can be touched, and that would encompass food, agriculture, transportation and “other”.  Likewise, it would be pure insanity to refuse to cover interest on the debt.

Source: National Priorities Project. Reprinted with permission.

So let’s take a look at discretionary spending, from whence the cuts would come. The chart on the left shows the 2015 numbers, the last year for which data is available.

The number for the military is about $54 billion.  The likeliest target is that orange “Government” pie piece in the lower part of the chart.  Cutting that pie piece will mean firing a lot of government workers. Will the administration really want to raise unemployment? Further, a lot of the money from Government, Education, Housing and Community, Energy and Environment, etc., goes to big companies with government contracts. Will they be willing to throw all those people out of work also?

You may be wondering how some things are both Mandatory and Discretionary spending. Take Social Security. The monies paid to recipients are mandatory, the employees that process those checks and do the rest of the work are considered discretionary. It will be difficult to keep the program operational if there is no one to run it.

Perhaps we’ll hear in detail exactly which cuts are proposed tonight. And perhaps he’ll also talk about the debt ceiling. Interesting factoid on that:

March 15 of 2017 will be a crucial data for all Americans on the planet. On this day, the debt ceiling “holiday” put together by Obama and Boehner expires. Moreover, the debt ceiling will freeze at US$20 trillion, which is the same number it is at today. From that point forward, no more debt can be created by the US economy. Considering the country burns through US$75bn worth of cash every month, the US may find itself out of tangible money by the Summer of 2017. Although it is unclear if this will happen, it is a rather troublesome idea. Source

Source: National Priorities Project. Reprinted with permission.

Another leg to this stool is where the money comes from that funds the Federal government. Yes, taxes is part of it, but what’s interesting is how much more money comes from individual taxpayers compared to corporations. People say that they pay too much in taxes, but most people pay a far lower rate for Federal taxes than they think they do. Honest. It’s the math. But you can see all income sources in the chart on the right.

Listen carefully when he talks about the need to cut taxes: every plan I’ve seen from the GOP has included cuts for corporations (who are currently taxed at an effective rate about 10 – 15% of what they paid back in the 1950’s and 60’s when our economy was growing at a much faster rate than it is now) and the very wealthy, who also pay far less than they used to pay, viz effective rates.

One thing that may come up is the “simplification” of the tax code, which would mean doing away with many tax breaks. One of the largest would be the home mortgage deduction. Think what that might do to the housing market. Hmm. The flat tax would, greatly extolled by failed presidential candidate Steve Forbes, mean that people would pay a flat percentage of their income. No deductions, no exemptions, but at a supposedly lower effective rate than people are paying now. Don’t believe it. The only way to keep this revenue neutral would be a VAT system, where taxes are paid at every step of a purchase from raw material to what is bought at the store.

So, we’ll see what gets said tonight. And as a final note, the speech tonight is a Constitutional requirement. In most years, it’s called “The State of the Union” address, but when a president is in his first year, it’s called an address because normally the State of the Union looks back on the prior year, which is the previous administration. (Article II, Section 3, Clause 1.)

Categories: Political Action

Hate in America

Mon, 02/27/2017 - 05:11

Last night, we in Philly heard that hundreds of headstones were turned over Saturday night at a Jewish cemetery, a week after similar vandalism in St. Louis. Many people are saddened, appalled and surprised. They should be sad and appalled, but not surprised. This is Trump’s America.

I have been working with Indivisible locally, and I am heartened by the number of people completely new to politics who are suddenly aware, and ready to take action to both resist the Trump agenda, and help elect people who will serve America, and not what is actually the Bannon administration.

I keep hearing two themes through my work with Indivisible. First, people are concerned about what they can do to stop hate. And by “hate” I mean not just the vandalism, but the verbal abuse people see foisted upon innocent people, just for the colour of their skin,  The ICE roundups are another form of hate: people question what they can do to help those who will be caught up in the dragnets. Hate also in the form of the administration’s moves against sick people (“repeal Obamacare” and dismantle Medicaid), Hate in the form of transgender bathroom rights. I’m a doctor, and I’m telling you, the only thing that matters is that you wash your hands. (If you’re a long-term reader, you remember back to SARS and fingers, nails, fingers, fingers, fingers.) And let’s not forget the hate of literacy in terms of claiming the media is the “enemy of the people”.  The hate is creeping down from the Cheeto Team, and up from the GOP state legislatures.

There are so many things that one can do. And if we all stand Indivisible, we will survive and succeed. Join your local Indivisible chapter, so that you can work locally.  Align with national organizations and read what they send you every day. Donate money to groups that act. Subscribe to the Times and the Post. Make sure you know that there are two elections in your state this year, and you should participate and bring a friend. This is one of those odd years: we elect row officers and build the bench. Make your voice heard to your elected representatives: yeah, they’re scared and hiding, but that doesn’t mean you can’t send them a note or two. And watch out for one another.

The second theme I keep hearing is what I call “thirst for knowledge”. For those of you who have been with DCW a long time, you know how I feel about learning the state capitals. And who your reps are, and the names of all nine Supremes, and how a bill becomes a law. Finally, people want to know because they realize that knowledge is power. Face it, the reason that the Cheeto administration is failing so badly is that they make the No-Nothing Party look smart. You can’t run a government if you don’t understand what comprises the institutions and the inherent modus operandi. Not only don’t they, but they have no desire to learn. Thus, the more we all know as individuals, the more able we are to make sure they don’t destroy our necessary institutions.

So what are YOU doing to help save America? And please, if you’ve got questions, leave them in the comments.

Categories: Political Action

And so it’s Tom Perez

Sat, 02/25/2017 - 18:13

The vote on the second ballot was 235-200 indicating that the rift between the old guard and the new left continues. So what does this mean for our party?

First, Tom Perez is a good guy. He’s smart, he’s well educated, he has held political positions (both elected and appointed) of increasing responsibility, most recently as Secretary of Labour.  While his tenure at Labour was not a rousing success, he is in favour of the Fight for $15.

However, he was in favour of TPP. In addition, he feels that the Democratic Party does not answer enough to rural Americans, and that the DNC did nothing to help Hillary Clinton directly. And therein lies the problem with his election.

First, rural America is not the future of the Democratic Party.  The future of the Democratic Party, if it is to ever be successful again, requires a push into the purple suburbs around the large cities, as well as outreach to people of colour and young people, plus making Working Class/Blue Collar needs a cornerstone of any policies.

Second, a lot of Democratic registered voters did not vote for the party up and down the ticket in 2016 for a lot of reasons, including the perception that the system was rigged in Hillary Clinton’s favour, and had been set up that way 4 years earlier when the primary schedule was determined. To reach those people we need a 50-state solution, á la Howard Dean, and we need policies and platforms dedicated to the needs of young people and minorities. Perez isn’t going to do those things.

The Democratic Party is currently a top-down organization, and under Perez’s leadership, will remain that way. Had Keith Ellison been elected, it would have been a very different situation. The people who voted for Perez were party regulars who have worked their collective way up the ladder from committee people to zone leaders to county leaders to state leaders. As individuals, they have a lot to lose if the status quo is upended.

Will the party survive? Yeah, but in its current corporatist state. The values the party stood for from the 1930’s through the DLC in the 90’s are still MIA. Outreach to youth, people of colour and the working class will be limited.

There is a silver lining in all of this, and that is that people on the ground are organizing. Some are making a push to be committeepeople and to work their way up so that they too will be able to vote in the DNC elections a few years down the road. Further, groups outside the party are organizing, and will likely run candidates to primary standard Democrats from the left, and will help to move the party back to what it used to be: the party of the people. ALL people.

It will be a rough couple of years as all of this settles out, but I personally take comfort in the fact that Perez’s intentions are good, and there will be people “helping” to adjust his implementation policies.

As always: REMEMBER TO VOTE, there are elections this year, at least two in every state. Mark your calendars and bring a few friends to the polls.

Categories: Political Action

Transgender Rights and the Supreme Court

Sat, 02/25/2017 - 15:25

At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students.  After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.

As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females.  The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender.  At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender.  When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required.  When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation.  In taking the case, the U.S.  Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.

Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation.  When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case.  After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation.

Given that the position of the government was a central issue in the case, the Supreme Court took some unusual steps in the case.  Typically, the party that lost in the lower court has to file its brief forty-five days after the Supreme Court takes the case and the party that won below has thirty days after the filing of that brief to file its brief in response.  Under normal procedures, the School Board’s brief would have been due on December 12 and the student’s brief would have been due on January 11 (with oral argument probably being scheduled for the February argument session — last week and this upcoming week).  However, shortly before the due date for the School Board’s brief, the Supreme Court revised that schedule.  Under the new schedule, the School Board’s brief was due on January 3, and the student’s brief was due on February 23.  This revised schedule gave the new administration time to decide whether it would be changing its position in this case.

Earlier this week, the Solicitor General and the Department of Education announced that the federal government was setting aside its prior interpretation of the letter and notified the U.S. Supreme Court of that change.  On the same day that the student’s brief was due, the U.S. Supreme Court requested both parties to file letters addressing how the case should proceed in light of that change.  Those letters are due this upcoming week.

While, in theory, the U.S. Supreme Court could proceed with this case and decide it solely on the issue of the proper interpretation of the regulation separate from any interpretation given by the Department of Education, the odds ate against that happening.  The U.S. Supreme Court has a strong tendency to avoid deciding issues that were not considered below.  The Fourth Circuit decided this case by deferring to the government interpretation of the regulation.  It did not address the meaning of the regulation in the absence of such deference.  Particularly with an eight-member court, the U.S. Supreme Court will likely try to buy itself some time (and get a full court) by sending the case back to the Fourth Circuit.

The reality is that this case is a perfect example of one role of courts.  There is a law (technically a regulation) in place governing the overall issues — gender discrimination and school bathrooms.  However, a sub-issue (the gender of transgender students) has arisen that probably was not on the minds of those who drafted the regulation.  While the legally easy solution is to redraft the regulation to deal with this sub-issue, the political branches have reasons for not redrafting the regulations.  In the absence of such action, it falls on the courts to decide how the regulation as currently drafted applies to this “unanticipated” circumstance.  While some would argue for courts to apply the “intent” of those who drafted the statute or regulation, there is no actual intent with regards for this type of issue.  Instead, there is a “value” or “rule” embodied in the statute and regulation.  The issue is what result in this case is most consistent with that value or rule.  Depending on your view of gender and gender identity, that question is either very simple or very complex.  At some point, the courts will need to decide what gender means in the context of transgender individuals.  Over the next week or two, however, it seems likely that the U.S. Supreme Court will say that, whenever that time may arrive, it’s not going to be this year.

Categories: Political Action