This week everybody was talking about the culture wars
The two featured posts cover the two main stories: whether banning abortion means punishing women who seek abortions, and North Carolina’s bathroom-regulating HB2 law that simultaneously prevents any local government from protecting gays and lesbians from discrimination.
What I didn’t mention in those posts was the economic backlash against North Carolina.
The transgender bathroom scare may not be as effective as some people believe.
Josh Marshall makes an interesting point about the possibility that Trump may go to the convention with far more primary votes than anyone else, but not come out of it with the nomination.
Through 1968 — in my living memory in other words — nobody really expected their primary vote to decide the nominee of their party. Conventions had their smoke-filled rooms, where party bosses like Chicago’s Mayor Daley anointed a winner. That’s how it had always been done.
But since 1972 we’ve had a different system, where the people who vote in primaries think they’re actually choosing the nominee.
what most people never really thought through was that the clinch before the convention model was always based on fundamental party unity. A candidate didn’t win by winning. He or she won when they demonstrated that no other rival could win. After that, the money dried up for the also rans and they were ushered out of the race. This just wasn’t obvious before because we’d never seen this system operate under these different conditions.
But right now the Republican Party is fundamentally divided, and so the arcane rules of delegate selection are really starting to matter. In many states, delegates “won” by Trump in the primary are being named by the party establishment. Many of them are obligated to vote for Trump on the first ballot, but aren’t actual Trump supporters. If Trump can be stopped on the first ballot, his nomination prospects may be over. What happens then?
Over half a century, the national primary process has been enshrined as a national election process. It may be run by party rules and may have all sorts of obscure and nonsensical bylaws. But you vote in the same precinct station as you vote in real elections. For real people that means it’s an election, period. You vote and your vote is supposed to count. Break that understanding and there will be hell to pay. Whatever rules you can cite simply are not going to matter that much.
On the Democratic side, polls make Sanders a slight favorite to win in Wisconsin. If he does, the question will be whether he won by enough, given how far behind he is in the national delegate totals. Nate Silver has made a projection of how many delegates Sanders needs from each remaining contest if he’s going to win a majority of pledged delegates (leaving the superdelegates out of it). In that model, Sanders needs 50 of Wisconsin’s 86 delegates, and would probably have to win the popular vote by 16 points to get them.
Why does this keep happening? The Washington Post took the bait from a Republican congressperson who claimed to know, and reported that 147 FBI agents were working on the Clinton email case. That number echoed all over the media, creating the impression that as Chris Cillizza put it, “this investigation was far more wide-ranging than I, at least, believed”
As usual, the report turned out to be bogus. The WaPo had to back off, saying that no more than 50 agents were involved. NBC later was able to lower that number to 12.
But for some reason this game never gets old: A Republican congressman (or someone on his staff) feeds the media some scandalous “fact” about Clinton, which then gets reported as if it had some news value. When the story turns out to be false, the liar’s identity is protected.
This week the Sanders and Clinton campaigns threw charges and counter-charges about campaign contributions from the fossil fuel industry. MaddowBlog’s Steve Benen and the WaPo’s fact-checkers try to sort it all out.
On his Orcinus blog, Dave Neiwert has decided to take that seriously, using this month to make sure we don’t forget noteworthy aspects of our Confederate heritage, like lynching. Or the fact that the Civil War wasn’t about “states rights”, as neo-Confederates claim. The Confederacy was created to defend slavery, pure and simple.
The Apple/FBI controversy ends with a whimper rather than a bang: Never mind, Apple, we can do it without you.
If you’re wondering what people are thinking, when they support the Senate refusing to consider a Supreme Court nominee for the first time ever, it’s something like this: Obama’s nominee is going to do his bidding, with the result that “at least four million illegal immigrants would be rewarded with jobs, welfare, and other taxpayer-paid benefits”.
In other words, they’re looking at the Supreme Court not as a court of law, but as a super-Senate that votes for or against certain results.
2014 was the first year that Pew studied in which median spending on [housing, food, and transportation] was higher than the median income for those in the lower third of income groups.
Increased housing costs were the immediate cause of the change.
Tough decision: Should I watch an Opening Day baseball game on TV this afternoon, or scrape the snow off my car?
and let’s close with a math experiment you can do at home
HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.
When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”
For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.
The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:
[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)
So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.
You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.
The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.
Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.
Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:
Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)
But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).
So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.
So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.
So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.
Did Trump get the pro-life position wrong? Or just express it too bluntly?
Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.
You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:
MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah. There has to be some form.
That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)
But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?
After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?
The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.
If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?
And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:
Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.
A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.
But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.
The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:
[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.
The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.
the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.
That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.
Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:
Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?
That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.
Broadly legal abortion is the product of privileged men.
… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.
What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.
Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.
Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.
The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)
Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.
Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.
I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.
Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.
Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.
Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?
Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.
I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.
It stopped working for me because, alas, I started listening to what I was saying.
That led to an “unsettling” realization.
I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.
Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …
I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.
Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]
Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.
That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.
Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.
[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.
On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:
And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.
That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.
[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.
As you know, I’m trying (not always successfully) to resist having the Weekly Sift turn into an all-presidential-politics blog. The presidential election is important and the race is addictive once you start paying attention to it. But figuring out who will (or even should) be the next president isn’t the be-all and end-all of what the Sift is for.
On the other hand, the presidential race does focus the public’s attention, and so occasionally provides a good hook for discussing something that has independent value. That’s what I’m doing with this week’s first featured post: “Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?”
As you probably already know, this week Donald Trump first said that after he outlaws abortion (as he wants to do for all but a few exceptional cases) women who get abortions will have to be punished. That caused an uproar not just from feminists, but from pro-lifers who usually deny that they want to punish women. And so something rare happened: Trump had to walk back one of his headline-making statements.
There’s a whole political angle on whether that was a good thing to do and how it will affect his chances in the Wisconsin Primary tomorrow and so on, but other people have that covered already. To me, the interesting question is: Did he have it right the first time? Whatever pro-lifers might say now, won’t the inevitable logic of their position lead to punishments for women who seek abortions? And if that’s true, why do they say otherwise? That post is just about done, and should be out shortly.
The other featured post will be “Where North Carolina’s New Law is Going”. North Carolina’s hastily passed LGBT-rights-restricting HB2 is close enough to laws the Supreme Court has already thrown out that the issues involved are pretty clear. There’s only one facet of the situation that needs new Supreme Court guidance, and it’s already obvious how all the justices will vote. Or at least that’s how it looks to me.
I’m still looking for a cartoon to illustrate that article, so let’s say it gets out by 10 EDT.
That doesn’t leave much space of the weekly summary. I’ll check in with the presidential race, get annoyed with the WaPo for yet another false alarm about Hillary’s emails, and maybe do a few other things. That still needs work, so let’s predict it for noon.
This week’s featured post is “Buying Back American Democracy“. And if yesterday’s church service left you feeling uninspired or maybe even a little alienated, check out the “Struggling With Easter” service I led three years ago.
As you undoubtedly know, Tuesday morning three bombs went off in Brussels, two at the airport and one at a train station, killing 34 (including three suicide bombers) and injuring 300. The perpetrators had ISIS training, and some were connected with the Paris attacks in November.
Whenever something like this happens, I try to remind people of the points I covered in “Terrorist Strategy 101: a review“. What makes a terrorist attack different from all other kinds of warfare is that its targets have no military significance. In this case, for example, the attackers did not go after NATO headquarters (which is also in Brussels), or a Belgian air base. If they killed or injured any military personnel, it was by coincidence.
A terrorist attack is similar to a bank shot in pool. The attack itself accomplishes little that is useful to the attacking side, so its whole purpose is the bounce it leads to: the response from the side attacked. That’s why, if some response immediately leaps to mind, you always have to ask yourself: “Is this exactly what they want me to do?”
The pool of potential ISIS recruits consists of Muslims who feel that a world community dominated by the West has no place for them, and leaves them nothing but bad choices: They can be ruled by autocrats more loyal to Western money than to their citizens, like the House of Saud or the generals in Cairo. Or they can live in war zones like Syria or Iraq or Libya or Gaza. Or they can come to the West and join a despised and dishonored underclass.
ISIS’s terrorism aims to goad us into responses that expand their recruiting pool by justifying that view of Islam and the West. If they can get us to heap scorn on Islam in general, to ghettoize and demean immigrant Muslims in Western nations, to commit atrocities against innocent Muslims in the Middle East, or in some other way to make it harder for Muslims anywhere to find a place in our world order, then they’ve succeeded.
President Obama understands this, which is why he always seems so unresponsive after an attack. He generally says something equivalent to: We have a long-term strategy, which is to tightly focus our counterattacks on the people who threaten us and our allies. That strategy is going to succeed and so we’re going to stick with it.
Admittedly, that’s really unsatisfying. What anybody with mammalian hormones wants to hear is that we’re going to lay waste to everything that has even the faintest connection to the attackers, until they’re really sorry they riled us up. But that’s a sucker’s response; the whole point of the attack was to trigger it.
By contrast, Ted Cruz went straight for the sucker response:
We need to immediately halt the flow of refugees from countries with a significant al Qaida or ISIS presence.
We need to empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.
We need to secure the southern border to prevent terrorist infiltration.
And we need to execute a coherent campaign to utterly destroy ISIS.
The bizarre implication of that second point is that we don’t just have a problem with terrorist individuals, like the couple who carried out the San Bernardino massacre, but that we face a threat from entire Muslim neighborhoods. Even weirder is Cruz’ belief that a heavier police presence in those neighborhoods can prevent “radicalization”, when it obviously would push in precisely the opposite direction: Nothing alienates people faster than being hassled by police because of their race or religion.
Vox connects this radicalized-neighborhood paranoia to the imaginary “no-go zones” in Muslim neighborhoods of European cities, a bit of dystopian nonsense Bobby Jindal invented after the Paris attacks. As so often happens in the conservative echo chamber, delusions don’t get corrected as facts emerge; instead, each delusion becomes a building block for the next one.
Cruz has spelled out his “coherent campaign to utterly destroy ISIS” before: carpet bomb areas that include large numbers of ISIS fighters, rather than being “politically correct” by trying not to kill innocent civilians. (Words that might substitute for “politically correct” here are humane or not a war criminal.) Killing their innocent wives and children might radicalize a few people too.
We see problem. We hit problem with big stick. Problem go away.
and Cuba
Bloody attacks and fist-waving responses are more eye-catching, but in the long run the most important thing that happened this week was probably President Obama’s trip to Cuba. He was the first American president to visit since President Coolidge came three decades before the Cuban Revolution.
Obama is doing what he can to normalize relations, but he can’t end the embargo against Cuba without an act of Congress, which he is unlikely to get because Congress is broken. At this point no one can argue that the half-century-long embargo has succeeded in overthrowing the Castro government, or that it will succeed if we stick with it just a little bit longer. It is one of those temporary policies that has continued through the decades precisely because it wasn’t working. If it had worked the way it was supposed to, Castro would have fallen in 1960 or 1962 and we’d have normalized relations with his successor.
This is something to remember when Donald Trump calls for a “temporary” ban on Muslim immigration “until we can figure out what’s going on“. Once something like that gets started, it can continue for half a century or more simply because no event allows us to declare victory and we can’t admit our mistake.
The Cuban embargo was such a mistake. In Cold War Europe, Communist East Germany had to limit travel to West Germany because it couldn’t let its citizens compare the two societies. Similarly, Communist Cuba would have had to prevent its citizens from measuring their lives against their cousins’ in Miami. But the embargo allowed Castro to blame us for the separation.
Everything Obama does is an outrage to conservatives, so this trip was too. Their outrage crystallized around this photo of Obama with a Che Guevara mural in the background.
How dare he! Of course it was fine for President Reagan to speak under a bust of Lenin at Moscow State University.
Or for the first President Bush to be photographed in Tiananmen Square with Mao’s image behind him.
But Obama and Che … that’s completely different!
This continues a pattern that goes back to the earliest days of the Obama presidency: When he does things that many previous presidents have done without incident — put his feet on a desk, take a vacation with his family, send a secular-themed Christmas card — it provokes outrage. It’s almost as if Obama himself were different, in some indefinable way, from all previous presidents. (I cataloged a bunch of examples of Obama-specific outrage two years ago in “What Should ‘Racism’ Mean?“.)
and the 2016 campaigns
The Sanders campaign has been saying for weeks that things would get better for them when the campaign got to the West, and they were right. Clinton may have won the Arizona primary, but Sanders put up huge margins in the caucuses in Utah, Idaho, Washington, Alaska, and Hawaii.
As a result, Clinton’s lead in pledged delegates shrank from 327 last week to 230. The amount that Clinton is running ahead of her minimum winning pace (according to Nate Silver’s model) fell from 112 to 92.
Unfortunately for Sanders, that nearly finishes the caucuses. (Participating in a caucus requires more time and effort than voting in a primary, which favors the candidate generating more enthusiasm.) Wyoming and North Dakota are the only state caucuses left. Worse, most of the remaining primaries are closed (i.e., restricted to registered Democrats), which favors Clinton. The big states still to come — New York, Pennsylvania, California — have large minority populations, which also favors Clinton.
The next contest is an open primary a week from tomorrow in Wisconsin. The limited recent polling indicates a small edge for Clinton. Two weeks later comes a closed primary in New York, where Clinton was a senator and recent polls have her up by around 30%. As I said last week, Clinton could still self-destruct in some way, but unless she does, it’s over.
If you thought the Republican race couldn’t go lower after the nationally televised discussion of Trump’s penis a few weeks ago, you were wrong. And it just keeps getting worse.
One point I’ll make about the smear-the-other-guy’s-wife exchange: Neither Melania Trump or Heidi Cruz has faced anything like the vitriol that has been unleashed on Michelle Obama these last eight years. Michelle has been a First Lady we should all be able to take pride in, but apparently she looks like a gorilla if you put your racist glasses on.
Thursday evening I was at a Massachusetts house party for Illinois Rep. Bill Foster, the only physicist in Congress. (If you’re a science type and aren’t excited by your local House race, check him out. He’s been winning close elections in a traditionally Republican district and needs your help.) Barney Frank spoke. Barney is expecting a 1964-scale landslide this fall, with Trump playing the Goldwater role.
Jamelle Bouie debunks “the myth of the Trump Democrat”. Trump’s favorable/unfavorable ratings among Democrats are roughly the same as Ted Cruz’, or about where Mitt Romney was four years ago. Likewise, among working-class white Obama voters, Trump and Cruz are about equally popular. In short, Trump’s working-class white support mainly comes from people who stopped voting for Democrats a long time ago.
Josh Marshall and Nate Silver make a similar point with different data: In those blue states where Trump’s appeal to working-class whites is supposed to turn things around, there’s no sign of that happening. Trump trails Clinton by wide margins in rust-belt states like Pennsylvania and Michigan. When he has won primaries in blue states like Massachusetts, he’s been doing it with a fairly small number of voters, due to a relatively small Republican electorate split among many candidates.
Summing up: It’s way too early to say that Trump can’t win in the fall, but the scenarios Democrats worry about aren’t showing up in the numbers yet.
and bigotry
Apparently the biggest emergency in North Carolina is something about bathrooms. Wednesday, the NC legislature was called back for a special session to deal with the horrifying prospect of Charlotte protecting LGBT rights. In a single day (which allowed 30 whole minutes for public comment), Republicans managed to introduce, hold hearings on, pass through both houses, and sign into law a bill that:
overturns Charlotte’s ban [on LGBT discrimination]: It also prevents any local governments from passing their own non-discrimination ordinances, mandates that students in the state’s schools use bathrooms corresponding to the gender on their birth certificate, and prevents cities from enacting minimum wages higher than the state’s.
So can we finally dispose of the myth that Republicans and conservatives favor local control over Big Government? If a city or town in North Carolina wants to protect LGBT rights or insist on workers being paid a living wage, the bigger government in Raleigh says they can’t. And if the consensus opinion at some state college is that they can deal with gender ambiguity in their bathrooms, well, forget about it; the bureaucrats have spoken. Conservative political correctness says that men are men and women are women, so that’s that. (BTW: What if there’s a typo on your birth certificate?)
In another context, I ran into a phrase this week that applies here: dominance politics. There is no actual problem here that needs solving, and certainly nothing that couldn’t wait for the legislature’s next regular session. The point of the bill, which is emphasized by the elimination of all normal procedure in its passage, is for Christian culture warriors to express their dominance.
Naturally, a backlash is brewing, as national and multinational businesses that have LGBT employees resist sending them to work in a state where they have been declared to be second-class citizens, with no rights which the majority is bound to respect.
and you might also be interested in
This week’s guns-make-us-safer story isn’t about somebody shooting somebody by mistake, it’s evidence that nobody really believes the NRA’s propaganda. As in 2012, the 2016 Republican Convention will ban guns. I mean, if a good guy with a gun is the best way to stop a bad guy with a gun, what could be safer than to crowd thousands and thousands of good guys with guns into an arena? As Colorado State Rep. Carol Murray put it:
when you have a gun-free zone, it’s like saying, ‘Come and get me.’
I shudder to think of all those unarmed Republicans huddled together with nothing but professional law enforcement to protect them, waiting helplessly for someone to come and get them. It’s just too horrible.
If you listen to Trump or Cruz speeches, you’ll frequently hear the prediction that Hillary Clinton will soon be indicted for her emails, or, if not, it will only be because the Obama Justice Department is blocking such an indictment.
One typical version of this Republican fantasy was in the March 20 New York Post. According to anonymous “associates in the private sector” who claim to have contact with unnamed FBI agents, who supposedly know the mind of FBI director Jim Comey (whether by talking to him directly or by hearing talk filtered through several other intermediaries), Comey “is getting stonewalled, despite uncovering compelling evidence that Clinton broke the law.”
The article is a near-perfect conspiracy theory: Since even its third-hand sources are anonymous, and neither the “compelling evidence” nor the laws allegedly broken are specified, nothing in the story can be checked against reality. And it makes no predictions that could be checked in the future: If nothing happens, that’s because Obama’s stonewalling succeeded.
A much more compelling analysis comes from Richard Lempert, one of the authors of the security manual for the Department of Homeland Security, who explains why Clinton won’t and shouldn’t be indicted: Whenever you identify a specific law that Clinton might have broken, and then check the known facts against the provisions of that law, there’s no crime.
The staff of Malheur National Wildlife Refuge is cleaning up and getting ready to reopen in a few weeks. Estimates of the costs to taxpayers stemming from the Bundy occupation are at $5.7 million and rising, not to mention the loss of time and data in environmental research projects, and the unquantifiable damage to archeological sites. This week, local media got its first look at how trashed the place was.
Reversing Citizens United might take a decade or more. But that doesn’t mean nothing can be done in the meantime.
A few weeks ago I got an email from an anti-Citizens-United group inviting me to learn about their 10-year plan for amending the Constitution to regain control of money in politics.
I think they wanted to motivate me and give me hope, but in fact I found their message depressing. I know they were trying to be realistic, but maybe I just wasn’t ready for that much reality: Ten years? And a result that soon only if everything goes according to plan!
But they’re right; constitutional amendments face a high bar, and building up the strength to clear that bar can take a long time. The various groups and leaders pushing a constitutional amendment haven’t even united on a text yet, or even an intention: Should the amendment just deal with campaign finance, or should it also cover corporate personhood? Should it ban corporate contributions itself, or just empower Congress to do so? And so on.
I have to admit it: Given where we are, ten years might be optimistic.
But Scalia’s gone. Doesn’t that change everything? OK, maybe a constitutional amendment is still far in the future, but couldn’t the Supreme Court just reverse Citizens United itself? In theory, yes. The Supreme Court could find a case tomorrow, and issue a ruling that said, “Our bad. Let’s just pretend that never happened.”
If the Senate approves Judge Garland, or if Bernie or Hillary gets to replace Justice Scalia with somebody even more liberal, quite likely the Court will soon have a majority that even wants to undo CU. But there’s still a problem: The law isn’t supposed to work that way, and (in spite of decades of conservative complaints about “liberal activist judges”) the four current liberal justices plus Garland or whoever probably will have more legal integrity than to reverse a ruling just because they don’t like it. [1]
The Supreme Court is supposed to work according to a principle called stare decisis, which basically means that old decisions should stand. In general, it wouldn’t do for the laws to keep shifting every time a new justice got appointed, so the Court is obligated to try to make past decisions work, even if the current justices would have decided those cases differently. [2]
So a more liberal Supreme Court may stop the bleeding, in that it probably wouldn’t continue John Roberts’ conservative-judicial-activism project of dismantling campaign finance law completely. But we can’t count on it to reverse old decisions, at least not without trying everything else first.
What exactly are we stuck with? For the time being, then, we’re stuck in the world Citizens United created. And that leaves us with the question: Given that we’re stuck here, is there anything we can do to make our politics less corrupt, and to lessen the undue influence billionaires and corporations have on the political process? In other words: Is there legislation (short of a constitutional amendment) that Congress could pass and that the Supreme Court wouldn’t declare unconstitutional?
Answering that question requires us to understand what exactly we’re stuck with. Basically what it comes down to is:
Money is speech.
The more political speech the better.
There is even — I hate to admit — a certain logic to this. We don’t put any limits on how much Verizon can spend on convincing us that they have the best wireless network, or how much Pfizer can spend telling us that they have the answer to erectile dysfunction. So why should political advertising be treated worse? The Founders’ intent was that political speech be freer than any other kind, not more restricted.
The big problem with Citizens United is that while it does recognize some exceptions to those principles, it ignores situations so similar as to make no difference. For example, CU still allows a ban on quid-pro-quo campaign contributions. In other words, you can’t say to a senator: “I’ll contribute a million dollars to your super-PAC if you vote for this bill that benefits my business” (at least not if somebody in the room is wearing a wire). But if a senator just happens to vote your way a lot and you just happen to spend a pile of money to keep him in office, that’s fine. [3]
In the real world, of course, large contributions are a corruption problem, even if no direct quid pro quo exists or is even implied. Imagine, for the moment, that Senator Inhofe came to his position on climate change honestly. Even so, it’s hard to imagine any Oklahoma citizen getting him to change his mind through evidence or argument, simply because at this point Inhofe knows which side his bread is buttered on. As Upton Sinclair put it: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
What that leaves. In short, according to the current interpretation of the First Amendment, the law can’t get between a large contributor and the megaphone he wants to buy or rent to make his point. So what options does that leave?
It’s simple really: The law can try to influence the other players in the system. It can give more power to small contributors, and to people who don’t have enough money to contribute to political campaigns at all. And it can influence candidates to refuse money from corporate PACs and instead focus their fund-raising on the newly empowered small donors.
In other words, if we can’t stop billionaires from spending vast amounts to get their way, we can at least make sure that they aren’t gatekeepers. We can use public money to make sure there is a non-billionaire-approved path to financing a congressional campaign. So yes, there will continue to be billionaire-funded and corporate-funded candidates running for Congress. But those don’t have to be all the viable candidates.
The problem with public financing. In a nutshell: Systems that finance campaigns with public money tend to become status-quo-protection schemes.
In every election there are fringe candidates who run just for vanity’s sake or to promote some crazy point of view. (In recent New Hampshire presidential primaries, we’ve had Vermin Supreme, who could generously be described as a performance artist.) If public financing were available to pay for their campaigns, they’d come out of the woodwork, wasting huge quantities of tax money.
So a candidate-based public financing system needs some way to vet the candidates. Looking at recent presidential candidates, for example, the system would have needed some way to decide that, say, Martin O’Malley and Jim Gilmore were serious in a way that Vermin Supreme wasn’t (even though most of the electorate hadn’t heard of any of them). In practice, such a system tends to favor incumbents (who obviously are serious candidates) and to favor the Republicans and Democrats over any new parties that try to emerge. (If you’re the Republican or Democratic nominee for an office, you’re obviously serious; if you’re nominated by the Rent is Too Damn High Party, maybe not.)
So a candidate-based or party-based campaign-finance system is easily painted as the Washington political establishment voting to subsidize itself. And if the public doesn’t keep close tabs on it, that’s what it can turn into.
Keeping citizens in control. Ideally, candidates in every race from the presidency down to city council would be able to do what Bernie Sanders is doing: raise enough money from small contributors to run a viable campaign. Sanders may not win and he may be outspent, but he has raised enough money to tell the voters who he is and what he wants to do.
Such small-donor financing may just barely be possible at the presidential level, where even low-information voters pay some degree of attention fairly early in the process. But is the waitress or trucker who gives $50 to Bernie Sanders also going to come up with $50 every couple of years for a Senate candidate and a House candidate and a governor and on and on? How will such voters even learn enough about lower-office candidates to know which ones are worth supporting? The way things stand, planning a congressional campaign around these kinds of contributors just isn’t practical. And that’s why Congress seems so corrupt: If you’re serious about running a competitive campaign, you have to either raise money from special interests or be so rich that you’re practically a special interest yourself.
But even at the level of senator and representative, it’s not impossible to raise money from small donors, it’ s just very, very unlikely that you’ll raise enough of it. And that brings us to the idea of small-donor public financing: What if public financing wasn’t focused on candidates or parties, but instead was used to magnify the effect of small donors? In other words, what if your donation of $20 to a candidate qualified that candidate for an additional $100 of public financing?
Such a plan would leave citizens in control, rather than bureaucrats or politicians. If voters wanted to give money to a well-known Republican or Democrat, fine. But if they’d rather give to an outsider major-party candidate, or to a Libertarian or a Socialist, or even to Vermin Supreme, that would be up to them. The public money would follow their lead.
A $25 tax credit for people who contribute at least $25 to a congressional candidate. Essentially, the government is refunding to you the first $25 of contributions you make. So almost everybody has the means to donate something.
A 6-to-1 match of contributions up to $150 to congressional candidates who qualify for the match by agreeing to forego PAC contributions and getting sufficiently many small contributions. So if you give a qualifying candidate $50, his campaign gets $300. [5]
Provides additional matching in the home stretch of a campaign for candidates who raise $50,000 in small-donor contributions.
So even under the current Supreme Court interpretations of the First Amendment, no billionaire’s or lobbyist’s rights are infringed. If the Koch Brothers want to spend millions to oust your representative (as they have tried to oust mine), they still can. But a candidate who wants to appeal to the people rather than to monied interests has a plausible path to victory. Sarbanes does the math:
Imagine 35 people gathering at a neighbor’s home, each giving $50. With matching funds, that would add up to $10,500. Do five of those events, and 175 people donate a combined $52,500.
Politicians suddenly would find it worthwhile to spend time in backyards with real voters, rather than in rarefied high-rises with big shots. More importantly, the candidate would have made connections with people who would be willing to knock on doors and help work phone banks, something K Street swells never would do.
Why would Republicans go for this? As the party that benefits most from big-money contributions, Republicans generally get an advantage from the current system. So naturally, most of the current co-sponsors of Sarbanes’ bill are Democrats.
But among voters, Republicans worry as much as Democrats about the corruption of the current system. (That’s why Trump’s pledge to self-finance his primary campaign is working so well for him.) And while any public-financing plan would have a cost, there is a conservative case that this would be money well spent: If it could prevent just one Bridge to Nowhere or one Solyndra loan, the plan would easily pay for itself. That’s why a Republican as conservative as North Carolina’s Walter Jones is on board.
And there’s a self-serving answer to why congresspeople of either party might support such reform: If you build a network of small donors in your district, that network is yours. No one can call you up and threaten to take it away from you if you don’t do what they want. But under the current system, many apparently secure senators and representatives live in terror of getting such a call.
Whether we’re talking about liberals or conservatives, no one goes into politics because they dream of toadying for lobbyists and kissing the rings of billionaires. The dream is of being a real decision-maker, not the puppet of some vested interest.
Summary. We can continue laying the groundwork for an anti-Citizens-United constitutional amendment some time in the far future, and we can continue hoping that a future Supreme Court will see the inherently corrupting nature of huge campaign contributions. But in the meantime, there is an actual piece of legislation that would be a big help.
Politicians who think the current system works in their favor may want to ignore that bill. But their voters — even their conservative Republican voters — see the problem and want a solution. So if we can get the Sarbanes bill on the national agenda, to the point that every candidate will have to take a position on it, lots of people you don’t expect might decide they’d better support it. And even politicians who seem to be securely on somebody’s leash may decide they’d like to chew through that leash.
[1] Just for perspective: During the ten years between Scalia’s death and, Alito replacing O’Connor in 2006, the Court probably had a majority that wanted to reverse Roe v Wade. But it didn’t happen.
[2] A good example of how the process is supposed to work is in Chapter 4 of David Strauss’ book The Living Constitution, in which he describes how Brown v Board in 1954 came to overrule Plessy v Ferguson of 1896. The 1954 Court didn’t just reverse the 1896 Court out of the blue. In between came a long series of cases, in which the Court kept trying and failing to square “separate but equal” with the rest of the American legal tradition. By 1954, separate-but-equal was so full of exceptions and provisos that it couldn’t hold together. So Brown wasn’t just saying that separate-but-equal was a bad idea, it was saying “We tried to make this work and we can’t do it.”
[3] Suppose, say, that Senator James Inhofe is the voice of climate-change denial in the Senate and uses his position as chair of the Environment and Public Works Committee to block any effort to shift America away from its dependence on fossil fuels. And then suppose that his top campaign contributions all come from producers or consumers of large quantities of fossil fuels. The Supreme Court sees no problem there that the law might want to address; quite the opposite, it sees any law that might get in the way of that arrangement as a violation of free speech.
In particular, there are virtually no limits to what a contributor can spend on political “speech” if there is no direct coordination with the candidate. So if, say, the Koch Brothers decide (totally on their own) that (for the good of the country) they want voters to keep electing wise senators (like Jim Inhofe), and if they want to spend vast amounts of their money to say so (whether Jim Inhofe likes it or not), that is simply their First Amendment right.
[4] If the name rings a bell, you’re probably thinking of his father, Senator Paul Sarbanes.
[5] To me, that sounds like a 5-to-1 match, with your original dollar making the sixth. But apparently that’s not how they figure. I’m making my math consistent with the examples Sarbanes gives.
Lots of news this week: Brussels, Cuba, the continuing presidential campaign, and so forth. But the featured post is about none of them. (My thinking about terrorism hasn’t changed since “Terrorist Strategy 101“, and I’m resisting the temptation to turn the Sift into a stop-Trump blog. My opinion of Trump is already out there in “Trump is an opportunistic infection“, “Peak Drumpf” and last week’s “Tick, Tick, Tick … the Augustus Countdown Continues“.) Instead, the featured post will be “Buying Back American Democracy”, about the campaign reform legislation that is still possible after Citizen’s United — immediately, without a constitutional amendment.
Some backstory about that: The weekend before the New Hampshire primary, I had the good fortune to be among the handful of people sitting around two tables at a Manchester coffee shop, listening to Rep. John Sarbanes of Maryland and my congresswoman (Rep. Annie Kuster) talk about Sarbanes’ proposed Government By the People Act. I thought at the time that more people should know about this, but week after week my planned article got nosed out by more time-sensitive pieces. So this week I decided to ignore the breaking news and finally post it. Look for it sometime before 9 EST.
And rest assured, the weekly summary does wade into the news, before closing with Ireland giving America a tough girl-to-girl talk about that bad boyfriend she’s been hanging around with lately.
This week everybody was talking about the Supreme Court
President Obama nominated Merrick Garland to fill the seat vacated when Justice Scalia died. As Chief Judge of the second-most-powerful court in the country, Garland is arguably the most important judge not already on the Supreme Court. If you’re just looking at pure legal qualifications, this is the most qualified person Obama could have picked.
So this much is clear: President Obama did his job and played it straight, offering the Senate someone they have no reason to treat as if he had cooties. If there’s some weird political gamesmanship going on, it comes the other side.
Many progressives are disappointed, wishing Obama had made a bolder, more liberal choice — not to mention a younger nominee who might expect to be around for several decades, rather than a 63-year-old. (Another name often mentioned is Sri Srinivasan, who is 49.) But at a time when the Senate is controlled by the opposite party, I think it’s appropriate to trim in their direction just a bit, making agreement easier and obstruction harder.
I’m feeling a little smug about the advice I gave right after Justice Scalia’s death:
If I were Obama, I would take McConnell’s obstruction threat seriously, and appoint whoever I thought would work best in a why-don’t-they-do-their-jobs attack ad. I’d be looking for a Mr. Rogers type: Somebody who exudes a sense of basic decency, who wouldn’t ring any alarm bells about affirmative action or political correctness.
That’s pretty much what he did.
and primary results
Democrats. Sanders’ hope for winning the nomination depended on keeping Clinton’s victories isolated in the South, with her Massachusetts win looking like a fluke. Yes, she had a big delegate lead, but that was because the Southern primaries all came early in the process; everything would change when the big rust belt states started voting.
His surprise win in Michigan seemed portentous, even if didn’t do much to close the gap. (Because the vote was so close, Sanders only got 4 more delegates out of Michigan than Clinton did.) What if he gained momentum and swept the other Midwestern industrial states by larger margins?
Well, now we know that isn’t going to happen. Tuesday, Clinton finished her Southern sweep by decisively winning Florida and North Carolina. But more importantly, she also won big in Ohio, narrowly in Illinois, by an infinitesimal margin in Missouri. Sanders did not win anywhere. So now it’s Michigan that looks like the fluke.
I know a lot of you aren’t going to want to hear this, but it’s over; Clinton will be nominated. There are no winner-take-all states on the Democratic calendar that would allow Sanders to catch up in big chunks, and that’s what he needs to do.
It’s not that it’s mathematically impossible for Sanders to win; Clinton could have some sort of epic meltdown. But she controls her own fate while Sanders doesn’t really control his, and she has quite a lot of tolerance for error.
The Sanders campaign argues that the calendar has turned in their favor; now that the South is out of the way, the remaining primaries are better for them. And that’s true, but not on the scale they need. Here the significant number isn’t Clinton’s 327-delegate lead in the raw count, but that she’s 112 delegates ahead of the pace Silver’s model says she needs if she’s going to win, taking state characteristics into account. (If the delegate count were currently 1050-968 in Clinton’s favor, Silver would regard the race as essentially even, given that Sanders’ worst states are behind him. But she actually leads 1162-835.)
For example, suppose Sanders were to win 41 of Arizona’s 75 delegates tomorrow. (The most recent poll shows Clinton well ahead, but it’s not very reliable.) That would lower Clinton’s raw lead by 7, but since Silver’s model tagged Arizona as Sanders-favorable going in and set 34 as Clinton’s delegate target, she would remain 112 delegates ahead of her projected winning pace.
Republicans. Donald Trump also had a good day Tuesday, but his prospects are murkier. He leads Cruz and Kasich in delegates 695-424-144, but he has less than half of the delegates awarded so far, and Silver’s model has him 24 delegates behind the pace he needs if he’s going to win a majority.
The RCP national polling average has Trump fluctuating between 30-40%, with Cruz and Kasich both rising and the open question of what Rubio’s supporters will do now that he’s out of the race. The only post-Rubio poll has Trump/Cruz/Kasich at 43/28/21. So there’s a real possibility Trump will enter this summer’s Republican Convention with a clear delegate lead, but not the majority necessary to nominate him.
Sanders and Kasich are both being told that if you can’t win you should quit. This seems silly to me: If you have a case to make and the means to make it, I don’t see the problem. If the candidate, donors, and volunteers are willing to accept the risk that they may be wasting their time and money, that’s up to them.
On the other hand, if your last chance is to run a harshly negative campaign against your party’s front-runner, that raises a different question: Is your slim hope of victory so important that it’s worth sabotaging your party in the more likely case that you don’t get nominated? But that’s more a question of tactics than of continuing or quitting. So far, neither Sanders nor Kasich has been that negative.
One message coming from the Sanders camp is starting to annoy me: They never say it in so many words, but they often imply that their supporters should count more than Clinton’s supporters.
For example, when they start enthusing about Sanders’ support among young voters, even in primaries that he lost, I find myself thinking: “Yeah, but each under-30 voter only gets one vote, and older voters get one vote too.”
Again: Everyone agrees that the early primaries favored Clinton and the late ones favor Sanders. But late-primary voters, like early-primary voters, should just get one vote.
If you’re a Democrat fretting over the higher turnout in Republican primaries this year, 538‘s Harry Enten says you should stop:
Democrats shouldn’t worry. Republicans shouldn’t celebrate. As others have pointed out, voter turnout is an indication of the competitiveness of a primary contest, not of what will happen in the general election. The GOP presidential primary is more competitive than the Democratic race.
He has the historical analysis to back that up. A particularly striking example is 1988, when (like today) a two-term president was headed out the door: The Democratic primary turnout that year was nearly double the Republican, but Bush beat Dukakis decisively in the fall.
and let’s follow up on some previous discussions
Trump as con man. I talked about this two weeks ago in “Peak Drumpf“. The New Yorker consults an expert: Maria Konnikova, author of The Confidence Game. She never makes a definite pronouncement, claiming you’d have to see into Trump’s head to be sure, but the upshot of her article “Donald Trump, Con Artist?” is: Yeah, probably.
Trump-inspired violence. [discussed last week] Of course there were new incidents, since Trump has done nothing to tone things down. As Vox‘ Dara Lind concludes:
Maybe it’s gone so far that even Donald Trump can’t stop it. But no one knows that yet, because Donald Trump hasn’t tried.
In the both-parties-are-the-same version of reality, Bernie Sanders is the Democratic equivalent of Donald Trump. But look how each responds to accusations that he promotes his supporters’ aggressive behavior.
Bernie draws a clear line between peaceful protest and disruptive violence.
We have never — not once — urged any supporter of ours to disrupt a meeting, and I think that’s kind of counter-productive. Having a respectful demonstration, a protest, is I think absolutely right. … [but] disrupting rallies is not my style. I would urge people not to do that.
Trump, on the other hand, never completely disowns his followers’ violence, or draws any clear line at all. Sometimes he openly praises violence, saying things like “Maybe [the protester] should have been roughed up.” and “If you see somebody getting ready to throw a tomato, knock the crap out of them, would you?” and “I love the old days. You know what they used to do to guys like that in a place like this? They’d be carried out on a stretcher, folks.”
When he does distance himself from acts of violence, the message is always mixed. A vague denial that he condones or promotes violence is followed with praise for his violent supporters: They are “very passionate“. They have “spirit“. They “love this country“. (I hear echoes of the way a wifebeater excuses his crimes: He loves this woman so much she just makes him crazy.) Their victims are “bad dudes … big, strong, powerful guys doing damage to people” — damage that for some reason is never caught on video, despite happening in rooms full of Trump supporters with smart phones. (BTW: What racial image is conjured up by the phrase bad dude?)
This week, when Trump predicted riots at the Republican Convention if he isn’t nominated — a scenario that I don’t think was in the public mind until that moment — he did not condemn the possibility or commit himself to trying to stop it, but said only “I wouldn’t lead it.” A prominent Trump supporter (though not quite a spokesman) went farther while talking to Wolf Blitzer:
Riots aren’t necessarily a bad thing … [Not] if it means it’s because [Trump supporters are] fighting the fact that our establishment Republican Party has gone corrupt and decided to ignore the voice of the people and ignore the process.
Huffington Post reporters Daniel Marans and Ryan Grim lay out six steps to brownshirt-like violence. The Chicago protest could mark the beginning of Step 4: The opposition fights back. Trump’s tweet “Be careful Bernie, or my supporters will go to your [events]!” threatens Step 5: Going on offense. (Though that threat hasn’t materialized yet.) Next comes Step 6: Picking a shirt (or hat) color.
I’ve seen claims that Step 6 is happening too, but so far I’m not convinced: The so-called Lion’s Guard looks more like a small-scale fascist group (I use that word carefully, having read their blog) trying to get publicity than an organic Trump-supporter group with serious membership. From what I’ve seen so far, it could just be one guy with an overactive imagination.
At the end of the day, I sit here and look at the core questions that are on the table. Should the government have carte blanche rights to force anyone to work for them? Should the privacy of people’s entire past be subject to a warrant? Should people be allowed to have private conversations, private thoughts, private ideas – all things stored on people’s iPhones – subject to search by the government? I am honestly in shock, and saddened by the fact that any of these questions could be raised at all in this country.
And Boing Boing quotes Zdziarski’s summary of an Apple legal brief: “If it please the Court, tell the FBI to go fuck themselves.” That’s a “translation” of this:
Apple instead objects to the government’s attempted conscription of it to send individual citizens into a super-secure facility to write code for several weeks on behalf of the government on a mission that is contrary to the values of the company and these individuals.
The Oregon incident drew Cliven Bundy away from his armed camp and into a situation where he could be easily arrested for charges stemming from the 2014 standoff at his ranch: “conspiracy, assault on a law enforcement officer, carrying a firearm in a crime of violence, obstruction of justice, interference with commerce by extortion and aiding and abetting others in breaking the law”. Thursday, his petition to be released from jail pending trial was denied. Judge Carl Hoffman explained:
I do not believe, Mr. Bundy, that you will comply with my court orders any more than you have complied with previous court orders.
Refusing to acknowledge federal authority — which I’m sure ingratiates him to the federal judge — Bundy has declined to enter a plea in the case.
Grant County Sheriff Glenn Palmer, whose jurisdiction adjoins Harney County, where the Malheur Wildlife Refuge sits, openly sympathized with the occupiers, and is now under investigation by Oregon Justice Department for his role in the 41-day standoff.
The occupation’s leaders were on their way to meet with Palmer when they were arrested (in a confrontation where LaVoy Finnicum was killed). The state police originally planned to make the stop at a more tactically advantageous site in Grant County, but decided to avoid Palmer’s territory and instead set up their roadblock in Harney.
From jail, Ammon Bundy spoke out in Sheriff Palmer’s favor:
Sheriff Palmer went to the source and found out the truth. He found out that we at the refuge stood for the Constitution, [and the protesters] love this country and would not hurt another person.
That deep desire to harm no one must have been what all the guns were for.
Ferguson. When we last talked about this, Ferguson’s city council had balked at full compliance with the deal it had negotiated with the feds, and the Justice Department responded by filing a lawsuit. That seems to have gotten them back into line. The issue going forward is whether Ferguson can survive financially or will have to go bankrupt. But it looks like they won’t be allowed to solve that problem by using their police force and municipal courts to squeeze money out of the poor.
Vanity Fair imagines how things might have gone if Donald Trump had run as a Democrat. In some ways his appeal to working-class anger would work better there, but there would be a problem:
Democrats still make an effort to base their policies and debates, however imperfectly, on fact. That’s an awkward fit for Trump, who has a habit of making things up.
In case you’ve been hoping Republicans unite around Ted Cruz, think about the list foreign policy advisors he put out:
The first name on the list? Frank “Obama is a Muslim” Gaffney, Bloomberg reports. Gaffney is the Joe McCarthy of Islamophobia. His think tank, the Center for Security Policy, is dedicated to raising awareness about the jihadist infiltration of the American government. For Gaffney, Barack Hussein Obama is but the tip of the iceberg — in truth, the Muslim Brotherhood has placed operatives throughout the federal government. Among their top agents: Clinton adviser Huma Abedin and anti-tax zealot Grover Norquist.
and let’s close with some Rose Garden rap
Many of you have probably seen this already, but it’s worth a second look. Lin-Manuel Miranda, creator and star of the Hamilton musical, shows President Obama how to freestyle.
If we can’t make our republican system of government work, eventually the people will clamor for a leader who can sweep it all away. Many of them already do.
In the 2013 post “Countdown to Augustus” I laid out a long-term problem that I come back to every year or so:
[R]epublics don’t work just by rules, the dos and don’t explicitly spelled out in their constitutions. They also need norms, things that are technically within the rules — or at least within the powers that the rules establish — but “just aren’t done” and arouse public anger when anyone gets close to doing them. But for that public anger, you can often get an advantage by skirting the norms. And when it looks like you might get away with it, the other side has a powerful motivation to cut some other corner to keep you in check.
… As Congress becomes increasingly dysfunctional, as it sets up more and more of these holding-the-country-hostage situations, presidents will feel more and more justified in cutting Congress out of the picture.
We know where that goes: Eventually the Great Man on Horseback appears and relieves us of the burden of Congress entirely.
The immediate motivation for that post was the debt-ceiling crisis of 2013, when Congress was threatening to blow up the global economy unless President Obama signed off on the repeal his signature achievement, ObamaCare. Various bizarre ways out were proposed, including minting a trillion-dollar coin to deposit with the Federal Reserve.
I had previously raised the declining-norms theme in “Escalating Bad Faith“, about the tit-for-tat violation of norms relating to presidential appointments and the filibuster, going back several administrations. And I returned to it in 2014 in “One-and-a-half Cheers for Executive Action” as Obama tried to circumvent the congressional logjam on immigration reform.
The historical model I keep invoking is the Roman Republic, which didn’t fall all at once when Julius Caesar crossed the Rubicon or his nephew Octavian became the Emperor Augustus, but had been on such a downward spiral of norm-busting dysfunction for so long (about a century) that it was actually a relief to many Romans when Augustus put the Republic out of its misery. In “Countdown” I pointed out the complexity of that downward trend:
About half of the erosion in Rome was done by the good guys, in order to seek justice for popular causes that the system had stymied.
So now we are experiencing a new escalation in norm-breaking: The President has nominated a well-qualified judge to fill a vacancy on the Supreme Court, and the Senate is simply ignoring him.
At various times in American history, individual senators of both parties have postured about the Senate’s prerogatives, usually in the abstract, and usually in an attempt to influence the president to choose a nominee more to their liking than the ones they suspected he had in mind. But in the long history of the American Republic, we have never been in this place before. The Senate has never simply ignored a nominee for the Supreme Court.
The gravity of this may not be apparent to most Americans. Day to day, the country is continuing just fine without a fully staffed Court. Justice Scalia died over a month ago, and his absence isn’t causing anything in particular to go wrong. In some ways it’s like operating a nuclear power plant with the emergency-response systems turned off: As long as there’s no emergency that needs a response, nobody notices.
But what happens if the 2016 election comes out like the 2000 election? What if the outcome hangs on some dispute that only the Supreme Court can resolve? As hard as it was on the country when the Court’s poorly reasoned 5-4 decision in Bush v Gore handed the presidency to the man who lost the popular vote, imagine where we would be if the Court had tied 4-4 and been unable to reach a decision?
Constitutional crises are rare in this country, but they happen, and only the Supreme Court can resolve them in a way that preserves our system of government. Legally, a tie at the Court means that the lower-court opinion stands, whatever it was. But in a true crisis, would a lower court have the prestige to make the other branches of government respect its decision?
Go back to the Watergate crisis, and the Court’s order that the Nixon administration turn over to Congress its tapes of Oval Office conversations. At the time, some advised Nixon to defy the Court and burn the tapes. What would have happened next is anybody’s guess, but the unanimity of the Court’s decision gave it additional moral force, and Nixon complied — even though the tapes led quickly and directly to his resignation. If that decision had split 4-4, along what were seen to be partisan lines, history might have played out differently. Nixon might have reasoned that he wasn’t defying a lower court, he was just breaking the tie.
Disputes between lower courts also happen, and if the Supreme Court can’t resolve them, we wind up with different laws applying in different jurisdictions. Imagine, for example, if the availability of ObamaCare or whether you could get married, depended not on which state you live in, but which federal appellate district.
What if appellate courts disagree about jurisdiction? If a government computer in Utah captures a phone conversation between Georgia and Wisconsin, that one case might lead three courts to rule simultaneously on whether the Fourth Amendment has been violated. Whose order should be followed?
Scenarios like that show why leaving a vacancy at the Court is playing with fire. Maybe we’ll get away with it this time. Maybe nothing that can’t be put off or papered over will happen between now and whenever the Senate starts processing nominations again — say, next year. (Or maybe something will happen, and some other branch of government will decide to seize whatever illegitimate power it thinks is necessary to keep the country running.)
But an optimistic reading of the situation only works if we ignore the larger trend. This is not an isolated incident, and we will not return to “normal” after it resolves. Once broken, a norm is never quite the same. The next violation is easier, inspires less public outrage, and usually goes farther. Jonathan Chait elaborates:
It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.
More likely than a return to the prior status quo is that blockades on judicial appointments will become just another “normal” tactic. After all, the Constitution may assign the Senate the duty to “advise and consent” on nominations, but it sets no time limit. Founding-era commentary, like Federalist 78, may envision a Court that is above politics. (The whole point of a lifetime appointment is to make any political deal with a nominee unenforceable. Once a justice is in, that’s it; he or she is beyond reprisal and requires nothing further from any elected official.) It may take for granted that the Senate will consider nominees on their individual merits, rather than on which partisan bloc chooses them. But the Founders didn’t explicitly write any of that into the rules, so …
If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations.
Conversely, if a Republican wins the White House while Democrats retake the Senate, the new Senate majority leader may decide that, rather than let Republicans reap the benefit of their new tactic, he’ll just push it further. Chait describes what either course leads to:
A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly?
… The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.
Our awareness of our dissolving norms ought to be sharpened by the current presidential campaign. Donald Trump makes a lot more sense as a candidate when you realize that he’s not running for President, he’s running for Caesar. His fans and followers are looking for that Man on Horseback who will sweep away all the rusted-over formalities and just make things work.
The Washington Post provides the following graph, based on data from the World Values Survey. It’s disturbing enough that 28% of American college graduates think it might be good to have “a strong leader who doesn’t have to bother with congress and elections”, but among non-graduates it is actually a close question: Democracy still beats authoritarianism, but only 56%-44%.
Vox has several graphs like this one, showing that frustration with democracy is increasing:
The pundits, representing an educated class that still mostly thinks democracy is a good idea, are horrified whenever Trump breaks one of the norms of American political campaigns by endorsing violence, or insulting entire religions or ethnic groups, or talking about the size of his penis during a televised debate. Yet his popularity rises, because here is a man who won’t be bound. He refuses to be tied in knots by rules or traditions or archaic notions of courtesy and honesty and fair play. His willingness to break our taboos of public speech symbolizes his willingness to break our norms of government once he takes power — not one at a time, like Mitch McConnell, but all of them at once. And lots of people like that.
Some of the biggest applause lines in a Trump speech are when he imagines exercising powers that presidents don’t have (if Ford tries to move an auto plant to Mexico, he will impose punitive tariffs until they back down), or using American military power for naked aggression (if Mexico won’t pay for the wall he wants to build, he’ll attack them), or committing war crimes (if terrorists aren’t afraid of their own deaths, he’ll have to kill their families).
Establishment Republicans are currently wringing their hands about the prospect of Trump leading their party into the fall elections. They are searching party rules for norm-bending ways to deny him the nomination in spite of the primary voters. But long-term, the way to stop Trump and future prospective Caesars is simple: Make democracy work again.
It’s not rocket science: End the policy of blanket obstruction. Pass laws that have majority support rather than bottling them up in the House or filibustering them in the Senate. Seek out workable compromises that give each side something to take pride in, rather than promoting an ideal of purity that frames every actual piece of legislation as a betrayal. Stop trying to keep people you don’t like from voting, or gerrymandering congressional districts so that voting becomes irrelevant. Come up with some workable campaign-finance system that lets legislators pay attention to all their constituents, rather than just the deep-pocketed ones.
In short, don’t just follow the rules in the most literal way possible, grabbing every advantage they don’t explicitly forbid; govern in good faith, fulfilling to the best of your abilities the duties you have been entrusted with.
They could start by holding hearings on Judge Garland, as if he were a presidential nominee and one of the most widely respected judges in the country (which he is). By itself, that may not save the Republic, but it would be a welcome gesture of good faith.
The 2016 Republican primaries, in which none of the establishment candidates seemed to understand where the real threat was coming from until it was too late, have a lesson for politicians of both parties: The most important fight of our era is not the Republicans against the Democrats, the liberals against the conservatives, or even the collectivists against the individualists. The battle we have to win is the Catos and Ciceros against the Caesars.
If the American Republic is going to survive, its mechanisms have to work. If they don’t work — if the system stays as clogged as it has been these last few years, and each cycle of attack-and-reprisal gums things up worse — then eventually someone will sweep it all away. Maybe not Trump, maybe not this year, but someone, someday sooner than you might think possible. That would be a tragedy of historic proportions, but crowds would cheer as it happened.
So now we have the unprecedented situation of a Supreme Court nominee that the Senate is ignoring. That’s one more tick in the “Countdown to Augustus” I’ve been talking about since 2013: the slow degradation of the norms and traditions that make the Republic work, leading up to the moment when our system of government becomes so dysfunctional that large numbers of people will be happy to see a strongman sweep it all away.
This year the significance of the countdown is highlighted, because one of our presidential candidates seems to be auditioning for the role of Caesar, and doing quite well with it so far.
I’ll pull all those threads together in this week’s featured post “Tick, Tick, Tick … the Augustus Countdown Continues”. That should be out around 9 EST.
In the weekly summary, I’ll discuss the Garland nomination and the state of the presidential race in both parties, touch base with a series of ongoing stories I’ve sifted before, and link to a video of Tim Wise very concisely describing how the rich have used race to divide the working classes since the 1600s, before closing with a viral video of Obama hosting Hamilton.
and the presidential race
If you thought the Republican race couldn’t go lower after the nationally televised discussion of Trump’s penis a few weeks ago, 
In the 2013 post “
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The Weekly Sift 