Tag Archives: corruption

The Peril of Potemkin Democracy

Trump doesn’t have to be Hitler to bring an end to the Republic.

One of the most difficult puzzles of the Trump administration is figuring out which dystopian scenario to worry about. Depending on who you listen to, everything Trump does is a feint meant to misdirect us away from the main threat, which is somewhere else.

Maybe Kellyanne Conway’s “alternative facts“, Stephen Miller’s assertion that the president’s power “will not be questioned“, or the president’s own declaration that CNN and the other mainstream news sources are “enemies of the American People” are assaults on the fundamental basis of democratic governance, or maybe they’re shiny objects intended to distract the press from digging into Trump’s radical appointments. Or maybe putting a buffoon like Rick Perry in charge of our nuclear energy programs is itself meant to split Congress on partisan lines so that neither party will get around to investigating Trump’s relationship with Russia. Maybe Russia is a red herring, and we ought to be paying attention to all the ways Trump and his cronies are setting themselves up to profit from his presidency. Or maybe the profiteering is small potatoes next to the alt-right influence of Steve Bannon, whose prophecy of a global war with Islam might be self-fulfilling if Islamophobic policies like the Muslim ban recruit enough young people into terrorism. Or maybe the Muslim ban is just a stalking horse meant to produce a clash with the judiciary, which Trump hopes to crush in the ensuing constitutional crisis.

I could keep going. Like a comic-book villain, Trump seems to be advancing towards the Apocalypse in all directions at once. Does that mean all roads need to be guarded equally? Or are all but one or two of the threats just distractions intended to split opposition forces? Is each proposal just the first step on a long march towards tyranny? Or is Trump like any other new president, checking off boxes on his list of campaign promises and hoping his various constituencies will be satisfied with a few symbolic baubles, so he can eventually focus on the things he really cares about? And what are those things?

Uncertainty of threat leads to uncertainty of response. Should we focus on throwing Trump’s allies out of Congress in 2018, or will that be too little too late? Right now, should we be calling our congresspeople? Marching in the streets? Planning our escape to Canada or Sweden? Or stockpiling arms for the inevitable civil war? Is paranoia making you worry too much? Or is denial making you too complacent?

A key point in Trumpian strategy is to keep your opponents rattled, and in that he is definitely succeeding. Probably the best line in SNL’s People’s Court skit wasn’t trying to be funny at all. The judge says: “I want one day without a CNN alert that scares the hell out of me.” Lots of us do.

So, acknowledging the uncertainties and the twin risks of paranoia and complacency, let’s see if we unrattle ourselves and focus our concern in the right places.

Why do people do what they do? This observation isn’t terribly deep, but it does help organize my analysis: What people do is always a combination of what they intend and the opportunities they happen across. For example, some people are in the careers they’ve pictured since they were kids, while others went wherever the jobs were when they graduated. Two people might work across a desk from each other, but one got there through a long-term plan and the other happened into it.

World leaders are the same way: They do some things because that’s why they set out to become world leaders in the first place. They do other things because the opportunity presents itself or some situation thrusts itself upon them. Lyndon Johnson launched the Great Society because that’s what he always wanted to do; he saw himself as a protege of FDR, so he wanted to be remembered as the president who completed the New Deal. But his response to an unanticipated challenge also made him the Vietnam War president.

So there are two parts to figuring out what to fear from Trump. First, what drives him, so that he will set out to make it happen? And second, where are the opportunities he might try to exploit?

Drives. Let me start by saying that I’ve never met Donald Trump, so all my opinions about him come at a distance. But at the same time, he has been in the public eye for decades and hasn’t exactly hidden his personality, so I’m not just shooting blind.

My take on Trump is that his drives are all personal, and he has no fixed political goals at all. This is the biggest reason why comparisons to Hitler are misguided. Hitler was ideological. Any unscrupulous German politician might have opportunistically used anti-Semitism to rabble-rouse. But Hitler was so identified with it that he carried out the Final Solution in secret, and speeded it up as the war began to go badly. He seemed haunted by the idea that he might lose power before he finished his genocide. Similarly, he was always planning to attack Russia; the German people needed to expand in the east at the expense of the racially inferior Slavs.

You’ll search in vain for any similar fixed political goals, good or bad, in Trump. He’s been both pro- and anti-abortion. He’s been a libertine and the candidate of the Religious Right. He was for the Iraq War until he decided he had always been against it. During the campaign, his policy prescriptions were all over the map: The government spends too much, but should start a massive infrastructure project. It should both get out of healthcare and make sure everybody gets covered. He is simultaneously a hawk and an isolationist, a champion of both the working stiff and the billionaire who keeps wages low.

One reason Congress is so frozen at the moment is that even after face-to-face meetings where public pandering can be put aside, Ryan and McConnell still have no idea what Trump really wants them to do. Even ObamaCare repeal — which every Republican from Trump on down pledged to do on Day 1 — is frozen, largely because Trump has not committed himself. He has left Congress to face the real-life difficulties of healthcare, while he floats vaguely above them, ready to tweet out his wrath if Congress’ program doesn’t fulfill his impossible promises.

But Trump is a bundle of personal drives: He wants to be the center of attention, to be admired and idolized. He needs to win, to never be wrong, and to be better than whoever people might compare him to. Fame and TV ratings and crowds are a few ways he measures his success, but the biggest is money and the appearance of money.

Politics is just another game that he can win, and so prove his superiority. And if being president also makes him a lot of money, that’s a double win. Everything else is just a move in that game. Does he hate Muslims or Mexicans? Not really, I think. But a lot of people do, and they’ll cheer for him if he says and does anti-Muslim or anti-Mexican stuff.

While he is not ideologically racist, he is favorably inclined towards any argument that justifies his own superiority. In practice, that can sometimes lead to the same result. Sexism, I believe, runs a little deeper: Women are simultaneously individuals to be dominated as well as chips in his competition with other men. Being shown up grates on him, but being shown up by a woman is doubly galling.

What I don’t see in him is an urge to remake society in his own image. He has no vision like a thousand-year Reich, a new Soviet man, or anything else that would lead to a micro-managed totalitarian system.

The opportunity that doesn’t exist. Even if Trump didn’t intend to go there, you might still imagine him opportunistically drifting into a Hitler-shaped or Stalin-shaped hole in American society. I firmly believe that there is no such hole. The 21st-century authoritarian model is quite different (as we’ll discuss below).

Germany in 1933 and Russia in 1917 were both countries in great economic distress, dealing with the aftermath of a humiliating defeat in war. Both had nostalgia for a former era when a strong ruler was firmly in charge.

Trump’s appeal is based on a dim echo of that situation. Many Americans are disappointed in their economic prospects, but compared to Depression-era Germany, few are desperate. (Wondering whether your salary will ever justify your student loans is a world away from wondering what bread will cost next week.) America’s persistent inability to wipe out enemies in Iraq, Afghanistan, or Syria is frustrating, but doesn’t compare to Russia’s or Germany’s humiliating defeat in World War I.  Trump’s rhetoric is nostalgic, but the leaders of those warmly-recalled eras were grandfatherly men like Eisenhower or Reagan, not iron-fisted czars or kaisers.

Trump has many fans, but Trumpism runs shallow compared to Hitlerism. In 1933, virtually every part of German society had its own Nazi movement eager to take power. In 2017, it’s hard to picture what a Trumpist takeover of the universities or of California would even mean, much less who would do it or how. The difficulty Trump is having staffing his administration is a symptom of this shallowness. He won with 46% of the vote, after all, and many who voted for him were not happy about it.

The appeal of Potemkin democracy. While America as a nation is not experiencing the kind of despair and defeat that leads to totalitarianism, many groups within America have seen a long-term decline in their influence and status, with no end in sight. Many members of these groups are deeply nostalgic, and prior to Trump’s election felt the kind of hopelessness that yearns for radical change.

These are the people I described in 2012 in “The Distress of the Privileged“: whites, men, conservative Christians, native-born English-speakers, and so on. These groups have never been oppressed in America and face no prospect of it, but they used to dominate society to an extent that they no longer do. That relative loss of power feels like persecution, even if in reality it is nothing more than a loss of privilege. [1]

But many of them experience that pseudo-persecution intensely, and believe it is being thrown in their faces constantly: when their doctrines are no longer taught or their prayers recited in public schools; when they have to compete in the workplace on near-equal terms with blacks and immigrants and women; when courts take the side of gay couples against the Christians who want to discriminate against them; when they express their distress in public and do not see their problems move immediately to the top of the agenda; when history classes call attention to the flaws of their heroes, or to the contributions of members of other groups; and on many other occasions. Those who look for these insults to their pride, and seek out media that highlights and exaggerates them, can find something every day.

These are the people who make up the bulk of Trump’s base, and who will be willing to watch democracy crumble if it allows them to regain the privileges they believe are rightfully theirs. While the extreme edge of this group contains open white supremacists, theocratic Dominionists, and even self-proclaimed Nazis, for the most part its members are not that radical: They’re happy with an American-style democracy as long as they’re comfortably in the majority and the elected government favors them. That’s what they’re nostalgic for.

But as they have sunk towards minority status, more extreme methods have begun to appeal: suppressing other voters in the guise of preventing “voter fraud”, gerrymandering legislative districts so that their minority of votes can dominate Congress and the state legislatures, shutting down immigration from people not like them, suppressing protest with police violence, and so on.

For the most part, their ideal America would be a Potemkin democracy. It would have the appearance of free institutions: elections, media not directly controlled by the government, opposition politicians not in jail, and so on. But the outcomes of those elections would never be in doubt, and democratic methods would never be sufficient to achieve equality for non-whites, non-Christians, or those that white Christians disapprove of (like gays).

The autocracy model that works. In a recent article in The Atlantic, David Frum described how democracy slipped away in 21st-century countries like Hungary, South Africa, and Venezuela. The Washington Post paints a similar (if less fully developed) picture of the year-old populist government in Poland.

What has happened in Hungary since 2010 offers an example—and a blueprint for would-be strongmen. Hungary is a member state of the European Union and a signatory of the European Convention on Human Rights. It has elections and uncensored internet. Yet Hungary is ceasing to be a free country.

The transition has been nonviolent, often not even very dramatic. Opponents of the regime are not murdered or imprisoned, although many are harassed with building inspections and tax audits. If they work for the government, or for a company susceptible to government pressure, they risk their jobs by speaking out. Nonetheless, they are free to emigrate anytime they like. Those with money can even take it with them. Day in and day out, the regime works more through inducements than through intimidation. The courts are packed, and forgiving of the regime’s allies. Friends of the government win state contracts at high prices and borrow on easy terms from the central bank. Those on the inside grow rich by favoritism; those on the outside suffer from the general deterioration of the economy. As one shrewd observer told me on a recent visit, “The benefit of controlling a modern state is less the power to persecute the innocent, more the power to protect the guilty.”
Prime Minister Viktor Orbán’s rule over Hungary does depend on elections. These remain open and more or less free—at least in the sense that ballots are counted accurately. Yet they are not quite fair. Electoral rules favor incumbent power-holders in ways both obvious and subtle. Independent media lose advertising under government pressure; government allies own more and more media outlets each year. The government sustains support even in the face of bad news by artfully generating an endless sequence of controversies that leave culturally conservative Hungarians feeling misunderstood and victimized by liberals, foreigners, and Jews.

In Poland:

In merely a year, critics say, the nationalists have transformed Poland into a surreal and insular place — one where state-sponsored conspiracy theories and de facto propaganda distract the public as democracy erodes.

In the land of Law and Justice, anti-intellectualism is king. Polish scientists are aghast at proposed curriculum changes in a new education bill that would downplay evolution theory and climate change and add hours for “patriotic” history lessons. In a Facebook chat, a top equal rights official mused that Polish hotels should not be forced to provide service to black or gay customers. After the official stepped down for unrelated reasons, his successor rejected an international convention to combat violence against women because it appeared to argue against traditional gender roles.

The national broadcasting network has lost much of its independence, and the Catholic media outlets are happy with the new regime, so the overall news coverage is positive. Cosmopolitan Warsaw is dumbstruck, but in the countryside the new government is quite popular. Some say its economic policies — subsidizing couples with children and lowering the retirement age — aren’t sound in the long term, but facts and numbers aren’t making much of an impact on the public debate.

The ultimate model of a 21st-century autocrat, of course, is Vladimir Putin, whose praises Trump often sings. Putin’s situation gives him many advantages that Trump lacks: Pre-Putin Russia in many ways resembled the pre-totalitarian societies I discussed earlier, with extreme economic distress, national pride wounded by defeat in the Cold War and the collapse of its Soviet empire, and nostalgia for past dictators. But even as Putin becomes (by some accounts) the world’s richest individual, and as his hold on government is increasingly unassailable, Russia continues to have many of the trappings of democracy. There are elections, even if it’s hard to participate in them. [2] Some limited media criticism is tolerated, though sufficiently annoying critics do sometimes drop dead under suspicious circumstances. Putin even respected Russia’s presidential term-limit law, stepping into the Prime Minister’s role for a term to let someone else serve as a figurehead president.

Frum sums up:

Outside the Islamic world, the 21st century is not an era of ideology. The grand utopian visions of the 19th century have passed out of fashion. The nightmare totalitarian projects of the 20th have been overthrown or have disintegrated, leaving behind only outdated remnants: North Korea, Cuba. What is spreading today is repressive kleptocracy, led by rulers motivated by greed rather than by the deranged idealism of Hitler or Stalin or Mao. Such rulers rely less on terror and more on rule-twisting, the manipulation of information, and the co-optation of elites.

First steps. It’s not hard to find steps Trump has already taken down the Potemkin democracy path. As often as he verbally attacks CNN, there is virtually no chance of troops seizing its studios in a totalitarian coup. But Jared Kushner has already met with a high executive of CNN’s corporate master, Time Warner, to criticize CNN’s coverage of the new administration. According to The Wall Street Journal, he called out two commentators by name: Van Jones (a black) and Ana Navarro (a Nicaraguan immigrant). The implied threat is all too obvious: Billions of dollars hang on whether the Trump administration approves Time Warner’s proposed merger with AT&T.

There is no need for Trump critics like Jones or Navarro to wind up in Guantanamo. It is sufficient if he can get them shunted off to media outlets that only liberals or people of color pay attention to.

Similarly, Trump has talked about expanding the scope of libel laws to make it easier to sue news organizations. Melania is already suing one, using the lawyer that Peter Thiel used to kill Gawker. The point, apparently, is not to recover damages, but to put critics out of business.

Under the guise of “reforming the bureaucracy” or “draining the swamp”, Trump seeks to populate government service with people loyal to him rather than to the missions of their departments.

His refusal to separate himself in any meaningful way from his business empire, his lack of transparency about his finances, and his flagrant use of his position as president to promote his profit-making properties are all part of this pattern. Frum projects these trends into 2020:

Most Americans intuit that their president and his relatives have become vastly wealthier over the past four years. But rumors of graft are easy to dismiss. Because Trump has never released his tax returns, no one really knows.

The repeatability of 2016. As Trump is fond of reminding us, the experts said he couldn’t win in 2016, and they were wrong.

But it’s worth considering exactly what they were wrong about. What made Trump’s victory so implausible was that he consistently spoke to a base that was nowhere near a majority of the American people. It seemed obvious that his appeal could not translate into a majority of the votes cast.

And it didn’t: He got 46% of the vote to Hillary Clinton’s 48%, a difference of nearly three million votes. What everyone failed to see was that:

  1. The combination of sexism, a long-term build-up of anti-Hillary hype, Trump’s relentless lock-her-up negativity, and unethical meddling by Russia and the FBI would make Clinton unacceptable to enough voters that the election would be close, despite Trump’s general unpopularity.
  2. The inherent gerrymandering of the Electoral College would allow Trump to win despite being outvoted by a clear margin.

After taking office, Trump has continued to speak only to his base, which is still an electoral minority. Unsurprisingly, a whopping 55% of Americans now view him unfavorably after only one month of his presidency.

But couldn’t the same strategy work again in 2020? Given enough repetition, a sufficiently cowed media, new illicit meddling (maybe by a Trump-tamed NSA this time), and relentless efforts to smear whoever the leading Democrat turns out to be — “Pocahontas” Warren, for example — couldn’t he repeat the same trick and be re-elected with no more popularity than he had in 2016?

What to expect. What Trump wants and has always wanted is to make vast amounts of money, to be courted by his fellow billionaires, and to have the power to take revenge on those who slight him. The repressive kleptocracy model offers all that.

To stay in power — and ideally to hand power off to a chosen successor like son-in-law Kushner or daughter Ivanka — Trump must keep the loyalty of his distressed/privileged base. In order to do that, he will offer them some substantive benefits. But ultimately he has no loyalty to them, so he will consistently attempt to give them symbolic victories that cost him nothing, or to take credit for far more than he actually does. The most efficient way for him to maintain their loyalty is to keep them constantly agitated by imaginary insults from their enemies, which Trump will defend them against. [3]

That base will continue to be an ever-shrinking minority, but by making it increasingly harder for others to vote, for immigrants to enter the country, for resident aliens to become citizens, for opposition parties to bring their case to the general public, and for voting majorities to achieve actual power, Trump will endeavor to enlarge that minority’s power far beyond its numbers. In doing so, he will simply be extending and exaggerating policies the Republican Party and the conservative media have pursued for many years.

Accompanying these policies will be the constant attempt to increase public cynicism. Sure, Trump lies, Trump profits from government, Trump bends the rules in his favor, but that’s just politics. Everybody lies, everybody cheats, all news is fake.

The threat, then, isn’t that some Reichstag-fire incident will set off a well-planned takeover that overnight makes America unrecognizable. On the contrary, America in 2020 will be very recognizable, as long as you don’t look too deeply.

[1] This is not to say that some members of these groups don’t have genuine problems worthy of government help — ex-workers of dying industries in dying-industry towns, like West Virginia coal miners, for example. But even here, what thrusts them into public attention isn’t the degree of their distress, it’s that they’re native-born English-speaking white men in distress. It’s the my-problem-should-move-to-the-top-of-the agenda privilege.

Tim Wise comments:

When white people are hurting economically we’re supposed to feel their pain and “bring the jobs back” to their dying rural towns. But when people of color lack jobs in the cities (in large part because of the decline of manufacturing over 40 plus years, as well as discrimination) we tell them to “move,” to go to school and gain new skills, and we lecture them on pulling themselves up by their bootstraps because the government doesn’t owe them anything. But apparently we DO owe white coal miners and assembly line workers their jobs back because remember, out of work white men are “salt of the earth” while out of work people of color are lazy.

[2] Garry Kasparov discusses the difficulties of getting on the ballot and campaigning in Russia in his book Winter is Coming. For example, the rules require your party to have a nominating convention of a certain size, but what if no one is willing to displease the government by renting you space for it?

[3] A good example was his rally this week in Florida, which Melania opened with the Lord’s Prayer. Not only does that give conservative Christians a we’re-still-in-charge-here thrill at no cost to Trump, it allowed the pro-Trump side of the media to further their Christian-persecution narrative.

Supposedly liberals were up in arms about the prayer, but I would never have heard about it if not for Fox News’ coverage of how up-in-arms people like me are. The liberal web sites I regularly cruise didn’t find it worth mentioning. (Fox’ sources are social-media posts by ordinary people. You could find similar posts objecting to more-or-less anything that happens.)

In fact, a campaign rally is a private event, so opening it with prayer does not violate church-state separation. If Trump wants to signal to non-Christians that they are not welcome at his rallies, that’s up to him. I was not offended and I suspect very few liberals were.

White House, Inc.

How can something be a “conflict of interest” if the people who do it don’t seem conflicted about it? Josh Marshall raises a good point.

[S]top talking about ‘conflicts of interest’. Those are guide rails meant to help ethical people to stay ethical or unethical people put on a show of it. There’s no show here. Trump is openly using the Presidency as the world’s greatest marketing opportunity.

So, for example, his Mar-a-Lago Club (where he has been spending a lot of weekends and recently met with the Japanese Prime Minister) doubled its membership fees after the election, to $200K per year. It’s a direct payment for access to the president (or the appearance of access).

Melania’s defamation lawsuit against The Daily Mail is pretty explicit about the marketing opportunities she sees in being First Lady:

The economic damage to Plaintiff’s brand, and licensing, marketing and endorsement opportunities caused by publication of the Mail Online’s defamatory article is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a professional model and brand spokesman, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world.

In retrospect, wasn’t it silly of Michelle Obama to waste her eight years of fame on unmarketable causes like childhood obesity? Pity poor Lady Bird Johnson, who spent her term as FLOTUS trying to “Make American Beautiful”, or foolish Nancy Reagan, who frittered away her “once-in-a-lifetime opportunity” telling kids to “Just Say No” to drugs. How much cold, hard cash did any of them get for their efforts?

This week, Ivanka Trump’s prospects for plunder were in the spotlight. When Nordstrom’s dropped her brand because of falling sales, the President of the United States called them out. Richard Painter, who was an ethics lawyer in the Bush White House and is now at University of Minnesota, commented:

The president’s tweet — posted on his personal account and then re-sent from his White House account — is an act of intimidation. Nordstrom interacts with many executive branch agencies: the Department of Labor, the Federal Trade Commission, the Securities and Exchange Commission, the Internal Revenue Service and others. Each one of these agencies will be headed by Trump appointees. Most will be staffed with other political appointees as well. The president is telling all of these people that he is very angry with Nordstrom. The message is clear, and it won’t take much for a political appointee in some agency to conceive of an ingenious way of ingratiating himself with the White House by making life difficult for the store chain.

… And now every other department store knows that it had better not make a similar “business decision” that displeases the president. In other words, do business with the Trump family and help the Trump family promote its products, or else.

Kellyanne Conway ingratiated herself with the president by doing some Ivanka marketing from the White House briefing room.

“It’s a wonderful line. I own some of it,” Conway told “Fox & Friends.” “I fully — I’m going to give a free commercial here. Go buy it today, everybody. You can find it online.”

Conway’s remark appears to violate the executive branch’s ban on staff endorsing products or companies. The regulation, from the Office of Government Ethics, also prohibits using public office for private gain of oneself or friends or relatives.

And I’m sure it’s just a coincidence that Heather Nauert from Fox and Friends is looking for a job at the White House and also tweeting about buying Ivanka stuff “in solidarity”. She couldn’t possibly think that Trump family marketing is part of a government job, could she? Wherever would she get such a notion?

What makes this behavior particularly galling to Democrats is the hypocrisy of it: Not so long ago Trump was regularly attacking Hillary Clinton for the apparent (though not particularly real) conflict between her management of the State Department and her connection to the Clinton Foundation, from which the Clintons have never received any direct benefit. Now government employees are openly working to put money into the pockets of the Trumps, and it’s all good.

The Trump defense for this egregious behavior is his usual somebody-else-started-it: Ivanka’s brand was targeted by an social-media boycott campaign #GrabYourWallet. “They’re using her to get to him,” Conway said.

Here’s the point that observation should bring to mind: Trump and his advisors (which formally includes Ivanka’s husband Jared Kushner and in every practical sense includes Ivanka herself) should have divested their business interests and put their assets into blind trust. When public officials are actively involved in business, that opens them not just to bribery, but also to pressure from boycotts. But if the Trumps’ assets were in blind trust where they belong, #GrabYourWallet would be no threat to them.

As far as I can tell, no one in the White House is drawing that conclusion. Nothing I’m hearing from White House, Inc. indicates any sense of conflict over using the presidency to further the Trump family’s business interests. So if you want to talk about “conflicts of interest” talk about governing: It’s Trump’s responsibilities to the American people that he’s conflicted about, not his profiteering.

Trump’s Toothless Plan to Avoid Conflicts of Interest

Last week I talked about how Trump’s followers don’t care about process issues. To them, process issues are about getting the appearances right and filling out the correct forms. Only lawyers and fussbudgets care about technicalities like that.

Avoiding conflicts of interest is a process issue. Trump has been appealing to his supporters indifference to such concerns when he sloppily says “I have a no-conflict situation because I’m president.” or “The president can’t have a conflict of interest.” The grain of truth in those statements is that the president is exempt from the primary conflict-of-interest law (for reasons that will be explained below). So he’s free from some (but not all) legal technicalities, which he expresses by saying that he’s free from conflicts of interest.

This refusal to acknowledge the problem, other than as a set of meaningless hoops people expect him to jump through, explains a lot about the conflict-of-interest plan he revealed Wednesday. The Atlantic ‘s Jeremy Venook comments:

Trump and his lawyer Sheri Dillon laid out the plans that they claimed would resolve the questions about conflicts of interest that have dogged the president-elect since he was elected. Instead, what they announced were piecemeal steps that, though designed and packaged to mitigate the appearance of conflicts of interest, do almost nothing to substantively address concerns that his business entanglements will undermine his ability to faithfully execute the office of the presidency.

The plan. Trump’s plan has a few basic points:

  • He resigns as an officer of the Trump Organization.
  • His assets go into a trust that he continues to own, but which will be managed by his sons Donald Jr. and Eric, together with a Trump executive, Allen Weisselberg.
  • He pledges not to discuss business with his sons or Weisselberg. (Venook calls this a “pinky-swear assurance”. Obviously Trump will continue to meet with his sons, and we’ll have no idea what they talk about.)
  • The Trump Organization does not make any new deals in foreign countries, or any deals at all with any “foreign country, agency, or instrumentality thereof.”
  • New domestic deals will need the approval of “independent” ethics officers, one in the government and one in the Trump Organization.
  • Profits earned from foreign governments — say by diplomats staying at or holding events at Trump hotels — will be donated to the U.S. Treasury.

His lawyers claim that in giving up foreign-government-related profits, he goes over and above what the Constitution’s Emoluments Clause requires, because it does not apply to “fair-value exchanges” like renting a hotel room. (That’s a controversial view, to put it mildly. And who’s to decide the “fair value” of a room in a hotel whose main selling point is the prestige of its image? What if he later claims that a stay in a Trump hotel is — as the MasterCard commercials say — “priceless”.)

The problems. The foremost obstacle to a credible conflict-avoidance plan is that Trump has a long history of welching on his deals and not carrying out his promises. For Trump, no deal is ever done; he’s constantly pushing its boundaries and trying to re-negotiate its terms. At a minimum, we should expect Trump to interpret any constraints on his actions as loosely as possible. So his conflict-of-interest plan needs to have ironclad enforcement provisions.

This one has none. The public knows nothing and will continue to know nothing about the internal workings of the Trump Organization. The ethics officers are appointed by Trump or his sons, and if they rubber-stamp deals that clearly violate the stated terms — say, an interest-free loan from a sovereign wealth fund — we’ll never know. And what is “profit”, anyway? In the real estate business, profit is as much or as little as an accountant is willing to sign off on. Unless Trump volunteers to tell us, we won’t know how much he is remitting to the Treasury or what that number is based on. (Or he might tell us he’s giving so many millions to the Treasury and then not bother to write the check unless or until somebody notices; he’s done that kind of thing before.) 538‘s Ben Casselman sums up:

It’s hard to evaluate Trump’s promises because as a private company, the Trump Organization doesn’t have to disclose many details about its finances or operations and because Trump himself — in a break from the practice of past presidents — has refused to release his tax returns. Trump on Wednesday displayed huge stacks of documents that he said were part of the process of turning his business over to his sons, but he didn’t make those documents available for public inspection. So although Trump did, as promised, provide new details about how he will handle his finances as president, the news conference didn’t do much to change the bottom line: When it comes to conflicts of interest, Trump’s message to Americans remains, “Trust me.”

And then there’s the stuff that’s not covered at all. Even without any new deals, foreign governments will have plenty of opportunities to favor or threaten existing Trump properties. The Trump Organization can hire people that the Trump administration wants to pay off or keep quiet, and we’ll never know. Banks that loan money to Trump businesses — we recently found out there’s a whole lot more debt than Trump previously admitted to — will be regulated by the Trump administration. Quid-pro-quo deals can be arranged to begin after Trump leaves office. And the lease on the Old Post Office, which houses the new Trump International Hotel in Washington, explicitly forbids any “elected official of the Government of the United States” from participating. Presumably Trump thinks he’s solved the problem by having a trust that he owns be party to the lease, but he hasn’t.

Perhaps the most serious potential conflict of interest isn’t financial: Imagine that terrorists in some country, say Turkey, start targeting Trump properties, and Trump concludes that the Turkish government isn’t doing enough to protect them. Is that an issue between the Turkey and a foreign corporation? Or is it an issue between Turkey and President of the United States?

The Schaub speech. Also on Wednesday, the Director of the Office of Government Ethics, Walter Schaub, gave an unprecedented speech at the Brookings Institution in Washington.

I wish circumstances were different and I didn’t feel the need to make public remarks today. You don’t hear about ethics when things are going well. You’ve been hearing a lot about ethics lately.

I need to talk about ethics today because the plan the President-elect has announced doesn’t meet the standards that the best of his nominees are meeting and that every President in the past four decades has met.

We learn a bunch of things from Schaub’s speech. First, that Trump constructed his plan with no input from OGE, the organization that his cabinet nominees have been working with. (Schaub spoke glowingly of Rex Tillerson’s cooperation, and the plan they came up with to insulate him from Exxon-Mobil.) Trump’s attorney had explained the decision not to sell his interest in the Trump Organization because its assets are too illiquid to dispose of quickly or easily. Schaub brushed that off:

[Trump’s] attorney [Sheri Dillon] also said she feared the public might question the legitimacy of the sale price if he divested his assets. I wish she had spoken with those of us in the government who do this for a living. We would have reassured her that Presidential nominees in every administration agree to sell illiquid assets all the time.

He might not get top dollar if he sold now, but people make sacrifices to serve at the top levels of government.

I appreciate that divestiture can be costly. But the President-elect would not be alone in making that sacrifice. I’ve been involved in just about every Presidential nomination in the past 10 years. I also have been involved in the ethics review of Presidents, Vice Presidents, and most top White House officials. I’ve seen the sacrifices that these individuals have had to make.

It’s important to understand that the President is now entering the world of public service. He’s going to be asking his own appointees to make sacrifices. He’s going to be asking our men and women in uniform to risk their lives in conflicts around the world. So, no, I don’t think divestiture is too high a price to pay to be the President of the United States of America.

Tillerson, for example agreed to forego “millions of dollars” in bonuses from Exxon-Mobil. Everybody who joined the Obama administration, including Obama himself, had to sell their stocks at the worst possible time. (The exact bottom of the market was in early March, 2009, but November, 2008 was close.)

Finally, we get an explanation of why Congress exempted the president from certain conflict-of-interest laws.

Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President. That law, 18 U.S.C. § 208, bars federal employees from participating in particular matters affecting their financial interests. Employees comply with that law by “recusing”, which is a lawyerly way of saying they have stay out of things affecting their financial interests. If they can’t stay out of these things, they have to sell off their assets or get a waiver. That’s what Presidential appointees do. But Congress understood that a President can’t recuse without depriving the American people of the services of their leader. That’s the reason why the law doesn’t apply to the President.

Makes sense, doesn’t it? If a president who owned oil wells had to recuse himself from any energy-policy discussion, he couldn’t really do his job.

[In response to this speech, House Oversight Chair Jason Chaffetz sent a letter to Schaub warning him against “blurring the line between public relations and official ethics guidance” and implying that his office’s funding might be cut.]

Other expert opinion. The Atlantic interviewed Norman Eisen, who used to oversee ethics for the Obama administration. Eisen echoes Schaub’s explanation:

You don’t want to have the president in the middle of a crisis where he’s about to make an urgent decision, and his White House Counsel says to him, “Oh, Mr. President, you have a conflict of interest. You have to leave the room. You can’t decide whether to rescue those hostages.” We don’t want to have that.

And points out another way in which “The president can’t have a conflict of interest” is at best “a half truth”.

It is the case that there are certain portions of the federal conflict-of-interest laws that apply to all other federal officials, but do not apply to the president and vice president. But those occur in a large body of constitutional, criminal, and civil law that is intended to regulate conflict. There’s no dispute that the president is covered by the federal criminal law, including 18 U.S.C. § 201, for example, which is bribery of public officials.

Eisen answers questions about enforcement. Impeachment is the ultimate enforcement mechanism, but he outlines other steps that could play out in Congress or the courts, like competitors suing because they feel they’ve been damaged by favors given to Trump businesses.

But why are we even talking about this? He could sign his stuff over to a true, independent trustee, not a family member, let the independent trustee liquidate, put the liquidated assets behind a big, beautiful, blind-trust wall, and set up another ethics firewall for your kids and other managers of the organization. That simple, four-step process would spare us all of this.

The argument against this solution is one I suspect we’ll hear a lot these next four years: Trump is very rich, and it’s unreasonable to expect the very rich to follow the same rules or live by the same standards the rest of us do.

Buying Back American Democracy

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.

Rep. John Sarbanes of Maryland [4] has a bill to do that. The Government By the People Act has three parts:

  • 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.

The New Clinton Allegations: Fog or Smoke?

This week the pre-publication publicity for the book Clinton Cash began, and at least one of the claims it makes — that a State Department decision made while Hillary Clinton was Secretary might have been influenced by large contributions to the Clinton Foundation — was picked up by the New York Times. And that raised the question: Is this the kind of fog routinely pumped out by political operations to raise an opponent’s FUD factor, or is this smoke that indicates some kind of fire?

Political cartoonists saw it both ways.


Which way is right? If we’re just talking about Clinton Cash, the answer seems clear: It’s a political attack that you shouldn’t take too seriously. But the NYT is harder to write off.

Clinton Cash. The author, Peter Schweizer, is a former Bush speechwriter and the coauthor of Bobby Jindal’s autobiography. He has a history of making sensational claims that don’t pan out. [1] And he doesn’t even claim to have solid evidence of any wrong-doing on the part of either Bill or Hillary Clinton. As ThinkProgress summarizes:

Schweizer makes clear that he does not intend to present a smoking gun, despite the media speculation. The book relies heavily on timing, stitching together the dates of donations to the Clinton Foundation and Bill Clinton’s speaking fees with actions by the State Department.

Even if nothing is wrong, suspicious timing is an easy case to make, because the apex of the power-and-money pyramid is a small world. The kind of people who have money to give to foundations and/or political campaigns are also the kind of people that government regulations are trying to control. So if you cast your net wide enough, you will inevitably find sequences where a gift of some sort is followed by a favorable decision of some sort. The question is whether the two are related. This situation has come up so frequently for so long that both possibilities have Latin names. If they are related, it’s quid pro quo. If they’re not but you assume they are, it’s the post hoc ergo propter hoc fallacy.

And whether it is involved in anything nefarious or not, the Clinton Foundation was always going to be a conservative target. The Clintons can rightfully be proud of the good work done by the Foundation and the Clinton Global Initiative, so Republicans would naturally want to make those political assets unusable. That strategy goes back to Karl Rove: Try to turn your opponents strengths into weaknesses. (Example: the swiftboat attack on John Kerry’s military record.)

So although long-time Clinton-haters will want to distribute Schweizer’s book to all their friends, if you’re a Clinton supporter wondering if you should reconsider, or an uncommitted voter considering Hillary as a possible president, Clinton Cash by itself should not figure in your calculations. This kind of book was bound to be written whether there’s any genuine issue or not.

But the NYT deserves more attention.

The uranium company. The Times looks at one example from Schweizer’s book, concerning a Canadian uranium-mining company that owned properties in both Kazakhstan and the United States. It’s a complicated story that takes place over many years: The Canadian company UrAsia Energy, which was run by a friend of Bill Clinton and a long-time Clinton Foundation supporter, bought mines in Kazakhstan, merged with the South African company Uranium One, and then was bought out by the Russian national mining company Rosatom. The final transaction required the approval of several government agencies in Canada, the U.S., and probably some other countries. One of the needed U.S. approvals came from the State Department, while Hillary Clinton was Secretary of State. All through this period, the Clinton friend was giving large contributions to the Clinton Foundation, and many of his executives and business partners were as well, for a total in the millions of dollars. (See the timeline.)

And there’s another entanglement:

And shortly after the Russians announced their intention to acquire a majority stake in Uranium One, Mr. Clinton received $500,000 for a Moscow speech from a Russian investment bank with links to the Kremlin that was promoting Uranium One stock.

None of this in itself is illegal, and none of the individual pieces are even unusual. Other former presidents have leveraged their fame and connections to raise money for good causes, like the Carter Center or the Ford Institute. Other former presidents get large speaking fees, sometimes in circumstances that an uncharitable observer would see as suspicious. Relatives of other presidents or presidential candidates have had business relationships with people who may have hoped to gain political influence. [2]

Bill Clinton is different from other former presidents in two ways: The Clinton Foundation and the Clinton Global Initiative are far larger than anything established by other presidents, and (through Hillary) Clinton still arguably affected government policy. Corporate money spent on previous presidents had sent a more indirect message to the currently powerful, (“Look how grateful we can be to leaders who are nice to us.”) rather than looking like a quid pro quo transaction.

What makes corruption? The seriousness of this story depends mainly on three questions:

  • Did the Clintons promise the uranium businessmen anything in return for their contributions and the speaking fee?
  • If they did promise something, did they deliver? In other words, is it possible to connect the dots from the businessmen to the foundation to Hillary to the State Department people who recommended approving the deal?
  • Should the State Department have blocked the deal? Does Rosatom owning uranium mines in the U.S. and Canada compromise American security? Or would torpedoing the deal have had negative affects elsewhere in our relations with Russia or other countries? (It’s also worth asking why the other relevant agencies approved the deal, or whether anybody lower in the State Department wanted to veto it.)

The NYT story provides no evidence that any of those question have a Yes answer. Maybe further digging will produce such evidence. But that’s speculative.

Another thing that would give this story legs is if the Clintons personally profit from their foundation in ways that weren’t already widely known. [3] Without such profit, we’ve got a story about trying to influence a politician by giving to her favorite charity. If someone tried to influence a feminist politician by giving a lot of money to the Girl Scouts, that wouldn’t feel like a serious corruption story.

Appearance and reality. The question that’s not speculative is: Why did Hillary let the appearance of corruption get this far? Or, as Amy Davidson put it in The New Yorker:

Are the Clintons correct in saying that there is an attack machine geared up to go after them? Of course. But why have they made it so easy?

Secretary Clinton was asked about precisely these kinds of conflicts-of-interest during her confirmation hearings, and she assured the Senate that she had an extensive full-disclosure agreement with President Obama, one that went far beyond what the law ordinarily requires of either foundations or government officials. (Steve Kornacki runs the tapes.) And yet the bulk of the uranium-related contributions weren’t disclosed.

Davidson goes through the details of the explanation of how this non-disclosure didn’t technically violate the full-disclosure agreement.

I also asked the foundation to explain its reasoning. The picture one is left with is convoluted and, in the end, more troubling than if the lapse had been a simple oversight. … That structural opacity calls the Clintons’ claims about disclosure into question. If the memorandum of understanding indeed allowed for that, it was not as strong a document as the public was led to believe—it is precisely the sort of entanglement one would want to know about.

In short, we’re back to what the meaning of is is. The non-disclosure is certainly a violation of the spirit of Hillary Clinton’s agreement with President Obama — as well as what she told the Senate — even if the letter of the agreement was somehow upheld.

Conclusions. If I had to pick one person as the sharpest talking-head on cable news, I think it would be MSNBC’s Steve Kornacki Here was his conclusion:

There is no smoking gun in anything that we learned today, and the Clintons are adamant that there is no there there. And it really might be as simple as that. But: There is the appearance of a conflict here, the possibility of a conflict. That’s what the reporting shows today. And that’s what Hillary said six years ago there wouldn’t be. There are questions here. There are difficult questions here, murky questions here, but legitimate questions.

And his guest Alex Seitz-Wald chimed in:

It’s hard to believe that these people are giving millions of dollars to the Clinton Foundation without at least some of them thinking that they might curry some favor with the Clintons. Whether that favor was returned or not, we haven’t seen that. But it certainly creates this perception, and that’s a problem.

Legally, I’ll bet there turns out to be no issue: no indictments for bribery, perjury, or obstruction of justice. Politically, I think the outcome will boil down to Amy Davidson’s final question: “Is this cherry-picking or low-hanging fruit?” Or: after all the time and money spent on opposition research, is this the best anti-Hillary story her opponents have? If it is, she’ll be fine. But if this is just the appetizer, there might be a problem.

[1] If you look at the list of previous Schweizer claims, a pattern emerges: He finds something in the public record that makes you go “Hmmm.” And then (if it makes a Democrat look bad) he publishes a conclusion he draws from that finding, without doing even the simplest checking to see if there’s a real issue.

One example is the claim by Schweizer’s Government Accountability Institute that President Obama skips over half of his daily intelligence briefings. This claim became the basis of an attack ad against Obama, which The Washington Post fact-checked and called “bogus”.

The grain of truth at the bottom of the charge was that about half the time Obama prefers to read his daily intelligence briefing rather than have a face-to-face meeting. The GAI report was based on analyzing the president’s published schedules, which showed all the face-to-face meetings. On days without a scheduled meeting, Obama was “skipping” the briefing.

But every president does this differently, the WaPo said, concluding that “Under the standards of this ad, Republican icon Ronald Reagan skipped his intelligence briefings 99 percent of the time.”

Similarly, Schweizer used the president’s public schedules to claim that Obama had never met with HHS Secretary Kathleen Sebelius during the three years prior to the ObamaCare rollout. This claim also turned out to be bogus, for reasons anybody who watched The West Wing would easily understand: High officials go in and out of the Oval Office all the time without being on the schedule published in the morning.

[2] The earliest example I remember is Ronald Reagan taking $2 million for a 9-day speaking tour of Japan. Reagan’s free-trade policy and his opposition to protective tariffs had been very beneficial to Japanese corporations, which now had a chance to show future presidents how grateful they could be.

In addition to a few charitable enterprises, Gerald Ford’s post-presidency was occupied by serving on numerous corporate boards, from which he received a nice income for doing not particularly much.

These practices are not uniquely American, either. In 2009 The Guardian reported:

The former prime minister Tony Blair has received millions of pounds through an unusual mixture of commercial, charitable and religious income streams. Since he stepped down from office in 2007, his financial affairs have been described by observers as “Byzantine” and “opaque”.

As for the appearance of gaining influence through business dealings with a relative, George W. Bush’s business career was repeatedly saved from disaster by rich people who were politically connected to his father, and several of Tagg Romney‘s clients and partners also had political connections to Mitt. Whether or not these were attempts to curry favor through other means is in the eye of the beholder.

Or favors can appear to flow through a relative in the other direction. The International Business Times reports:

While Jeb Bush was governor of Florida, state pension officials committed at least $1.7 billion to financial firms whose executives were “Pioneer” fundraisers for his brother’s presidential campaigns. To achieve Pioneer status, the fundraisers had to amass at least $100,000 worth of bundled contributions to one of George W. Bush’s campaigns.

That could be corruption, or it could just be the small-world phenomenon: Lots of financial executives were Bush fund-raisers; if you distributed pension funds by throwing darts at the Yellow Pages, you’d probably hit some of their firms.

None of this excuses whatever the Clintons might or might not do. But we should not imagine that there is some unique “Clinton problem”.

[3] None of the articles I’ve seen mentioned whether any of the Clintons draw a salary for the foundation work they do, or if that compensation is reasonable. I suspect they don’t, but if you know, leave a comment.

Restoring the Constitution Is Now a Liberal Issue

Justice Stevens proposes constitutional amendments to fix right-wing judicial over-reach.

Once upon a time, judicial activism was an issue that belonged to conservatives. Unelected liberal judges, they claimed, had re-interpreted the Constitution to mean things that neither the Founders nor any amending super-majority had ever intended, and so some plain-spoken constitutional amendments were necessary to put our legal house back in order: a Human Life Amendment to undo Roe v Wade, a School Prayer Amendment to undo Engel v Vitale and Abington School District v Schemppa Flag Desecration Amendment to undo Texas v Johnson, and so on. Occasionally conservatives would propose an amendment to fix an oversight of the Founders — why didn’t they insist on term limits or a balanced budget? — but mostly the theme was: The Founders had it right, we just need to restore the Constitution to what it originally meant before liberal activist judges twisted it out of shape.

Levin’s Eleven versus Stevens’ Six. Given that history, it’s interesting to look at the 11 amendments talk-radio host Mark Levin proposed in his recent popular-on-the-Right book The Liberty Amendments. His rhetoric is still about restoration. (The book’s subtitle is “Restoring the American Republic”, and the National Review review  — from which I get the list of amendments; I haven’t read the book — styles it as “how to restore the Founders’ original vision of government”.) But only one of the 11 proposed amendments (a much-restricted Commerce Clause) is even arguably fixing a judicial misinterpretation.

Two of the 11 alter the clear intent of previous constitutional amendments: One repeals the 17th Amendment; it takes election of senators away from the people and returns the choice to the state legislatures. The other limits the income tax to 15%. That changes the 16th Amendment, which left the specifics of the income tax up to Congress, and corresponds in general with the Founders’ belief that regular elections are sufficient to restrain excessive taxation*.

But the other eight “liberty amendments” fix what Levin seems to regard as the Founders’ mistakes: They didn’t foresee what future generations would do within their Constitution, and so they should have locked things down better. Levin’s Founder-correcting amendments include: term limits on Congress and the Supreme Court, allowing 3/5ths of Congress to overturn a Supreme Court decision**, allowing 3/5ths of the states to reverse an act of Congress, requiring an across-the-board 5% budget cut if Congress fails to enact a balanced budget (not exceeding 17.5% of GDP) by a deadline, requiring government compensation for regulations that affect property values, requiring photo ID and proof of citizenship to vote, requiring Congress to reauthorize each federal agency every three years, and allowing 2/3rds of the states to approve a constitutional amendment without Congress’ involvement.

Other than photo ID, these are all things the Founders could have written into the Constitution, but they didn’t. And that should tell you something: Levin’s book isn’t about restoring anybody’s “original vision”; it’s about radically reshaping the American government into something it never was and was never intended to be.

Contrast this with the proposals in retired Supreme Court Justice John Paul Stevens’ new book Six Amendments. Only one of Stevens’ amendments — adding a phrase to the Eighth Amendment to define the death penalty as cruel and unusual punishment — would change what Stevens’ argues was the Founders’ original intent. (Hanging and the firing squad were common in the founding era.) He composed the other five to reverse the drift of wrong-headed judicial interpretation.

Anti-Commandeering and Sovereign Immunity. Two of Justice Stevens’ amendments address somewhat technical issues that are not widely debated by the general public. (So skip this section if you’re not interested.) In the Supremacy Clause (Article VI) the Constitution specifically says that federal laws outrank state laws and “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In the 1997 case Printz v United States, the Court interpreted this to mean that only judges are so bound, and that Congress is prohibited from (in Stevens’ words) “requiring state officials to perform federal duties”. Stevens points to the role state officials were assigned in the World War I draft as an example of “historical events in which the federal government relied on state officials to carry out federal programs” without lawsuits or other protests from the states.

The fact that throughout our history the federal government has required the states to play a critical role in providing the manpower to fight our wars demonstrates that the anti-commandeering rule was invented by the Printz majority.

Stevens’ amendment would change the Supremacy Clause’s “Judges” to “Judges and other public officials”.

Sovereign immunity is a principle we inherit from English common law, which said that the king could not be sued without his consent. After the Supreme Court ruled in Chisolm v Georgia in 1793 that the states did not have sovereign immunity, the Eleventh Amendment was passed:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Through Reconstruction, this amendment was interpreted to prevent federal courts from ordering states to pay their debts to citizens of other states. It did not begin to become a blanket sovereign immunity until the 1890 decision Hans v. Louisiana. Stevens thinks that (and subsequent decisions relying on it) was a mistake, and would fix it by this amendment:

Neither the Tenth Amendment , the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.

Gerrymandering. Gerrymandering means drawing the boundaries of districts of representation in an attempt to pre-determine the results of elections. (The current Republican majority in the House is largely the result of gerrymandering in states like Pennsylvania, where Republicans control 13 of the 18 congressional seats despite getting fewer total votes than Democrats.) Wisconsin Republican Congressman Reid Ribble described the situation like this:

I think the American people have a misperception of elections. We’re at a place now in this country where voters are not picking their representatives anymore. Representatives, through the gerrymandering process and redistricting, are picking their voters.

Current Supreme Court interpretation says that gerrymandering is illegal if its purpose is to disenfranchise a minority group — by, say, dividing up the black neighborhoods so that no city council district has a black majority — but that the courts can’t touch a gerrymander whose purpose is to gain advantage for one political party over another. In an era in which Republicans are increasingly becoming the “white man’s party“, it can be hard to tell the difference: Does Texas’ map under-represent Hispanic Democrats because they’re Hispanic, or because they’re Democrats?

That conundrum is an artifact of judicial interpretation rather than anything in the Constitution. Whether your right to choose your representatives is being undermined because of your ethnicity or your party, you’re still not getting the “equal protection of the laws” citizens are promised by the 14th Amendment, or the “Republican Form of Government” promised in Article IV, Section 4. In order to get back to the Founders’ one-man-one-vote vision, Stevens proposes:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

Campaign Finance. You can’t blame the Founders for not addressing campaign finance or corporate rights, because neither was a major part of their world***. But Congress passed and Teddy Roosevelt signed a ban on corporate campaign contributions back in 1907, and it wasn’t particularly controversial.

For decades thereafter, Congress, most state legislators, and members of the Supreme Court apparently assumed that it was both wise and constitutional to impose greater restrictions on corporate participation in elections than on individuals.

That position was supported by a unanimous Supreme Court decision in Federal Election Commission v. National Right to Work Committee as recently as 1982. But then conservative justices started inventing the corporate right to free speech and discounting the corrupting effect of large contributions.

Such was the consensus that the first opinions written by any member of the Court arguing that corporate expenditures in election campaigns are entitled to the same constitutional protection as the activity of individual voters were not announced until 1990.

But that recent legal development is now the majority opinion on the Court. A similar evolution has happened with regard to large contributions from rich individuals. The Citizens United and McCutcheon decisions have moved towards a money-is-speech doctrine that has a perverse effect on democracy.

Unlimited expenditures by nonvoters in election campaigns —whether made by nonresidents in state elections or by Canadian citizens, by corporations, by unions, or by trade associations in federal elections —impairs the process of democratic self-government by making successful candidates more beholden to the nonvoters who supported them than to the voters who elected them.

Stevens focuses his free-speech concern on making sure that voters have access to all relevant information, not on the right of the rich to shout louder than everyone else. So while he worries that limits on campaign contributions might be set too low, he sees no problems with limits in general. He points to the limits the Court itself sets on the arguments it hears:

There are, however, situations in which rules limiting the quantity of speech are justified by the interest in giving adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another. The most obvious example is an argument before the Supreme Court. Firm rules limit the quantity of both oral and written speech that the parties may present to the decision maker. Those rules assume that the total quantity permitted is sufficient to enable the Court to reach the right conclusion; they are adequately justified by interests in fairness and efficiency.

And so he proposes this amendment:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

Gun control. The Second Amendment is often abbreviated as “the right to bear arms”. But that right is set in a context:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

In the era of the Founders, this had nothing to do with sovereign citizens arming themselves in case they need to overthrow the government, as gun-rights enthusiasts sometimes claim today, twisting Founder quotes about arms and tyranny out of their original context.

You need to remember the security situation at the time: The federal standing army was miniscule, while state and local governments faced numerous local threats — armed gangs and Indian raids on the frontier, pirates on the coast, and slave rebellions in the South. Those threats were handled by citizen militias who were authorized and organized by the state and local governments. They were not self-appointed gangs of armed vigilantes or revolutionaries, like those currently at the Bundy Ranch.

The Founders worried about the possibility that the federal government might disarm the militias and create a need for an internal standing army, which then might either become the enforcers of a federal tyranny or arbiters of local laws. (For example, an abolitionist president might drag his feet about putting down a slave revolt.) The purpose of the Second Amendment was to ensure that state and local governments would maintain the right to their own law enforcement, rather than depending on a federal army.

The Second Amendment was understood that way for two centuries.

For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. … During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

But then the NRA perpetrated what Chief Justice Burger called “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” In the Heller decision of 2008, the Roberts Court signed on to that fraud. Out of thin air, it decided that the Second Amendment protects weapons “typically possessed by law-abiding citizens for lawful purposes” from regulation by state and local governments. (Heller is an example of a Roberts-Court phenomenon I noted last month: the covert reversal. In practice, Heller reverses the Miller decision of 1939, but the Court never admits that it is doing so.)

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.

He fixes it by changing the Second Amendment’s “right to keep and bear Arms” to “right to keep and bear Arms when serving in the Militia”.

Summary. The role of Constitution-amender is so powerful that it’s easy to be corrupted by it. At least in fantasy, you are re-writing the supreme law of the land, so it’s tempting to get all your digs in. Bad amendments are targeted at specific current outcomes that get over-specified, like Levin’s 15% income tax or limiting government spending to 17.5% of GDP. (Who knows what “income” or “GDP” will even mean 100 years from now?)

With that in mind, I find Justice Stevens amendments not just well intentioned and well thought out, but elegantly written. They are not wordy, they don’t create arbitrary limits and rules, they don’t invent procedures that have no precedent in American history, and they leave future Congresses and judges the room to do their jobs. I think I could support all of them.

* The taxing clause in Article I Section 8 (“The Congress shall have the power to lay and collect taxes”) is one of the most open-ended grants of power in the Constitution. Interestingly, the 16th Amendment was itself intended to overrule the Supreme Court’s limitation on that power. The first income tax was passed to finance the Civil War in 1861, but the Court found such a tax unconstitutional in the 1895 case Pollock v Farmers’ Loan and Trust, leading to the passage of the 16th Amendment in 1909 and its ratification in 1913.

** It’s widely believed on the Right that the Supreme Court’s power to declare a law unconstitutional was created out of thin air by Chief Justice John Marshall in Marbury v Madison in 1803, and so represents a judicial usurpation that the Founders never foresaw. Consequently, allowing Congress to reverse a Supreme Court decision might be seen as restoring the Founders’ vision. This is all completely false. Federalist #78, written by Alexander Hamilton in 1788 while the Constitution was being ratified, says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Hamilton went on to explain why the Founders had rejected one of Levin’s other proposals, term limits for the Supreme Court:

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

*** But you should read Thom Hartman’s account of the Boston Tea Party as an anti-corporate (rather than anti-government) protest.

This is What Judicial Activism Looks Like

When John Roberts was being confirmed as Chief Justice in 2005, he likened his role to an umpire in a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. … I will remember that it’s my job to call balls and strikes and not to pitch or bat.

This was his way of invoking a common conservative trope: that “activist liberal judges” had “legislated from the bench” to create laws that were impervious to repeal through the political process. Roberts was pledging to be a different kind of judge, one who applied the law to the facts the way an umpire applies the rulebook’s definition of the strike zone to the pitch he just saw.

The umpire analogy was always suspect. As Justice David Souter pointed out in his 2010 Harvard commencement speech, cases that can be resolved just by reading the text and applying the facts usually don’t make it to the Supreme Court.

Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Constitutional values, Souter recognized, often “exist in tension with each other, not in harmony.” Resolving those conflicts in a way that stays as true as possible to the spirit behind the Constitution as a whole … that requires a judge, not an umpire.

Souter was in many ways the model of what conservatives didn’t want to see in George W. Bush’s judicial appointments: Appointed by Bush’s father, Souter had drifted into the Court’s liberal wing, the wing that conservatives accused of making up laws. Roberts was promising not to do that. He would stay objective, rather than drifting into liberal activism.

When the Court’s McCutcheon v Federal Election Commission decision came out earlier this month, we saw just how ironically things have worked out. The decision, written by Roberts and building on the Roberts Court’s earlier decisions in Citizens United and McComish, is one more step in his completely original remaking (or rather, unmaking) of campaign finance law. John Roberts has become arguably the most activist Chief Justice in U.S. history.

When you read McCutcheon, the most striking thing is the way that Roberts is talking to himself. The precedents quoted are almost entirely those of the Roberts Court itself, many written by Chief Justice Roberts.

Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C.J.). Pp. 18–21.

That bright line between quid pro quo corruption (direct bribery, where a campaign contribution is exchanged for a vote or other favor) and the more general buying of influence — and the idea that the Constitution limits Congress to legislate only on the quid pro quo side of that line — is a pure invention of John Roberts. It did not exist anywhere in law or legal tradition before he joined the Supreme Court.

Roberts also cites an older decision, Buckley v Valeo from 1976, but slides over the fact that he is reversing that decision. Buckley was the Court’s response to the post-Watergate rewriting of campaign finance laws. It upheld the part of the law that restricted campaign contributions, but threw out the law’s limits on campaign expenditures. The Court reached this conclusion via an interesting piece of reasoning that Roberts has completely written over: When a candidate spends money on his campaign, he is exercising his freedom of speech, and the government needs a very serious reason to stop him. But when a contributor gives money to a campaign, he is not himself speaking; contributors are exercising their right to free association, which is also a First Amendment right, but one that is not quite so sensitive as the freedom of speech.

In other words, in 1976 money was not speech.

The 1976 Court upheld the exact kind of restriction that McCutcheon throws out: an overall restriction on the amount of money an individual can give to federal campaigns during a two-year election cycle. So McCutcheon is a reversal, though you will struggle hard to find that fact acknowledged in the text. In Supreme Court tradition, reversals are not done lightly. A major reversal like Brown v Board of Education is a historical landmark, and typically happens only as a last resort. (See David Strauss’ book The Living Constitution for an account of all the ways the Court had tried for decades to make sense of “separate but equal” before recognizing in Brown that it just wasn’t going to work.)

If there is one cardinal symptom of judicial activism, reversal-on-a-whim is it. But Roberts does not struggle at all with reversing Buckley, he simply ignores that he’s doing it. And it’s not just Buckley. In Justice Breyer’s dissenting opinion, he quotes McConnell v FEC, the last major pre-Roberts campaign finance case, which upheld restrictions on soft money contributions:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­lished that Congress’ legitimate interest extends be­yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ment, and the appearance of such influence.’

But as Breyer complains, Roberts now quotes Citizens United as if it had reversed McConnell.

Did the Court in Citizens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it.

Another major symptom of judicial activism is a judge valuing his own view of reality above that of the legislature. Judges are presumed to be experts in the law. But often a case hangs on not on the law alone, but on facts about the world. Congress can hold months of hearings and require reports from the full apparatus of government, and so is in general better situated to investigate the state of the world than a court is. Within the court system, a district court can spend weeks or months assembling a body of expert testimony, and so higher courts typically defer to a lower court’s findings of fact. In our entire system, no one is more poorly positioned to assess the state of the external world than the Supreme Court.

Non-activist judges realize that.

Lots of reality-based issues enter into campaign finance law: How does corruption really work? How corrupting are various kinds of contributions? How diligently will contributors and political parties look for loopholes in the law? What kinds of legal restrictions are practically enforceable, and which ones require the government to prove intentions that no one can really know? How does the appearance of corruption influence the behavior of voters and the overall health of democracy?

The Bipartisan Campaign Reform Act (BCRA) of 2002 was passed after Congress had assembled massive amounts of testimony and evidence. Moreover, congressmen themselves have direct experience with the temptations towards corruption, and significant interactions with the voters. When McCutcheon came before a district court, that court upheld the law in view of the Buckley precedent, before getting to the evidence-gathering part of the trial. Breyer summarizes:

The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. … If the plu­rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

Why indeed? Is it that Chief Justice Roberts is afraid the facts would get in the way of what he wants to do? Or is he convinced that he already knows everything he needs to know?

Here’s the kind of thing I wish Justice Roberts knew: Last week I was in my home town, where I had dinner with my best friend from grade school. We have argued politics since we were seven, and he is quite conservative today. But we found one issue where we completely agree: No bank should be too big to fail. We agreed that Congress has done practically nothing to fix the financial system after the meltdown of 2008, and neither of us was optimistic that it would.

Why not? Not because the People want banks to be too big to fail. Between the two of us, I believe we represent a fairly broad public consensus on the issue. And not because bankers are delivering sacks of cash to congressmen in quid pro quo exchange for their votes. But the broader influence of big money in politics — the kind that Justice Roberts has placed beyond legal remedy — makes the too-big-to-fail issue unapproachable. Neither I nor my friend is actively pushing for Wall Street reform because … well, what’s the point?

That’s corruption of the political process undermining democracy. And Chief Justice Roberts has decreed that nothing can be done about it.

Occupying the State of the Union

The conventional wisdom about Occupy Wall Street is that it failed. It made a splash and generated headlines, but ultimately it elected no candidates, passed no laws, and didn’t even leave behind a memorable lost-cause proposal like the Equal Rights Amendment. So it was all a big waste of the activists’ effort and our attention.

By contrast, the Tea Party did elect candidates and has influenced all kinds of laws, especially at the state level. Without the Tea Party, the government wouldn’t have shut down last October. You may not consider that much of an accomplishment, but it is proof of continuing influence. The Tea Party may eventually even displace the Republican establishment and take over half of the two-party system.

What has Occupy done to rival that?

But all along, Occupy visionaries like David Graeber were defining success differently:

For the last quarter millennium or so, revolutions have consisted above all of planetwide transformations of political common sense. … What they really do is transform basic assumptions about what politics is ultimately about. In the wake of a revolution, ideas that had been considered veritably lunatic fringe quickly become the accepted currency of debate.

The French Revolution, for example, failed to hold power, “but afterward, institutions inspired by the French Revolution … were put in place pretty much everywhere.” Suddenly, it was obvious that monarchy was obsolete. Not only did people around the globe believe that, they believed that they had always believed it.

Now consider President Obama’s 2014 State of the Union and the responses from Cathy McMorris Rodgers (for the Republican Party), Mike Lee (for the Tea Party), and Rand Paul (who seems to be a party unto himself). Maybe it’s not surprising that President Obama would talk about inequality and how difficult it is to stay in the middle class:

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have  barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by – let alone get ahead.

But here’s the interesting thing: The responders accepted that framing of the problem, they just tried to shift the blame.*

Bear in mind how conservatives used to respond whenever liberals tried to make inequality an issue: Wealth has nothing to do with poverty. Wealth is conjured out of the aether by creative capitalists, not usurped from the common inheritance or distilled from the blood and sweat of the laboring masses. So talk about poverty if you must, but don’t talk about wealth and poverty in the same paragraph, because they’re totally separate phenomena. This was still the conservative conventional wisdom two weeks ago, when David Brooks argued (in his own italics):

to frame the issue as income inequality is to lump together different issues that are not especially related.

More than just conservative dogma, some version of that argument has been the conventional wisdom of Very Serious People for decades. It has been fine for liberal politicians to talk about the plight of the poor or the struggles of the middle class, but if they combined that downward-looking and sideways-looking compassion with an upward-looking head-shake at the explosion of wealth among the few, mainstream pundits would start lobbing phrases like “class warfare” and “redistribution of wealth” — warning shots that come just before “Why don’t you go back to the Soviet Union, comrade?”.

But post-Occupy, everybody knows about the 99% and the 1%. And it’s no longer anti-American to point out that the 1% (and mostly the .01%) have owned all the productivity growth of recent decades.

Mike Lee’s Tea Party response doesn’t deny any of this, but instead tries to pin it on government and President Obama:

This inequality crisis presents itself in three principal forms: immobility among the poor, who are being trapped in poverty by big-government programs; insecurity in the middle class, where families are struggling just to get by and can’t seem to get ahead; and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.** … [W]here does this new inequality come from? From government – every time it takes rights and opportunities away from the American people and gives them instead to politicians, bureaucrats, and special interests.

Rodgers points to the same problems, but calls them by a different names and promises that vague, unnamed Republican “plans” will solve them.

our mission – not only as Republicans, but as Americans, is to once again to ensure that we are not bound by where we come from, but empowered by what we can become. That is the gap Republicans are working to close. It’s the gap we all face: between where you are and where you want to be. The President talks a lot about income inequality. But the real gap we face today is one of opportunity inequality… And with this Administration’s policies, that gap has become far too wide. We see this gap growing every single day.

And this is where the spin becomes obvious, because the metaphor changes: The gap “between where you are and where you want to be” would seem to be in front of you, between you and the people whose examples inspire you to be more successful. Republicans are going to help you bridge that gap, so that you can be rich too.

But as Rodgers gets down to cases, it’s clear she’s talking about a chasm opening up behind middle-class voters, threatening to suck them into poverty as it has already claimed so many of their friends and family:

We see it in our neighbors who are struggling to find job, a husband who’s now working just part-time, a child who drops out of college because she can’t afford tuition, or parents who are outliving their life’s savings. Last month, more Americans stopped looking for a job than found one. Too many people are falling further and further behind because, right now, the President’s policies are making people’s lives harder. Republicans have plans to close the gap.

Even Rand Paul has to recognize the hollowing out of the middle class, though (unlike the others) he sticks to the old-time religion that the rich will save us, if only we let them keep getting richer. (It never worked before, but it will if we give it one more shot.)

Parents worry about their children growing up in a country where good jobs are few and far between. More than ever before, Americans wonder how they’ll afford to send their kids to college, and what will happen if they lose their job. … Prosperity comes when more money is left in the private marketplace. … Economic growth will come when we lower taxes for everyone, especially people who own businesses and create jobs.

Another piece of conservative dogma has been to blame the poor for failing; their laziness, crime, drug addiction, and general irresponsibility is dragging down the rest of us. And if people are falling out of the middle class — losing their jobs, getting their homes foreclosed, failing to send their kids to college — well, that’s their own damn fault. We aren’t failing them; they’re failing us.

Recall the opening shot of the Tea Party’s rebellion, Rick Santelli’s famous rant a few weeks after Obama took office. Backed by a cheering mob of traders on the Chicago Mercantile Exchange, Santelli challenged the new president:

How about this, president and administration: Why don’t you put up a web site to have people vote on the internet to see if we really want to subsidize the losers’ mortgages? Or would we like to at least buy cars and buy houses in foreclosure and give them to people that might have a chance to actually prosper down the road, and reward people that could carry the water instead of drink the water? … [Gesturing to include all the traders***] This is America! How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills? Raise their hands! [boos from the crowd]

Tuesday night no one was blaming the “losers” for falling out of the middle class, or fantasizing about picking the bones of their foreclosures. Instead, everyone sympathized with growing middle-class anxiety: how hard it is to find good jobs, how hard it is to pay for college, how insecure you feel even if you currently have a good job. Everyone acknowledged that Americans are losing faith in the old nostrums: work hard, study hard, say no to drugs, get married, buy a house, pay your bills … it just doesn’t seem like enough any more. You might do all that and still lose out, even as billionaires get ever richer.

Everyone but Rand Paul is acknowledging that some kind of gap needs to be bridged, that some people have more of this vaguely defined “opportunity” that you wish you had. Mike Lee is even denouncing “privilege at the top”, though he blames this privilege on government favors rather than the normal workings of capitalism.

It’s important to realize what we’re seeing: an early stage in the “transformation of political common sense”. People who believed and may still believe that OWS was horribly misguided and failed completely — those same people see the world differently now. The problem isn’t that a few “losers” are dragging the rest of us down. The problem is that there’s a 99% and a 1%. We’re arguing about what caused that and how to fix it, but we all see the problem now.

Thank you, Occupy.

* Ultimately they’ll lose that argument, because the facts are clearly against them. Look at the graphs: This problem didn’t start with Obama. It started in the Carter-Reagan years. If your explanation doesn’t account for that, you’re just spinning.

I explain it by Carter and the Democrats in Congress turning to the right: de-regulation, lower capital gains taxes, free trade deals, and turning a blind eye to union-busting. That all started slowly under Carter and then really took off during the Reagan administration. The long version of this story is in Thomas Edsall’s The New Politics of Inequality from 1985, but William Anderson of the conservative Mises Institute noted the same thing in 2000:

Republicans like to point to the failures of the Carter Administration and then claim that Ronald Reagan brought us into the present era. Alas, while I prefer Reagan to Carter, I cannot say that the above statement is true. Granted, much occurred during the Reagan Administration that was good, but if truth be known, many of the important initiatives that enabled those boundaries to expand came from Carter’s presidency.

I agree completely, if you reverse the value judgments and define “the present era” as the Second Gilded Age.

** Perversely, the purest examples of cronyism are due to a trend conservatives champion: privatizing public services like prisons or public schools.

*** I love the assumption that the well-compensated wheeler-dealers on the CME represent “America” and the people who “carry the water”. I think it’s arguable that American productivity would go up if the Earth swallowed the Chicago Mercantile Exchange whole. The people who really “carry the water” are the ones who grow stuff and build stuff and deliver services. The water-carrier is the single mother who cuts your hair (and who may need Food Stamps to feed her son), not the venture capitalist who conjured up millions by franchising Supercuts.

The Fall of Governor Ultrasound

The indictment, I now realize, is an under-exploited narrative form. Novels have been written in the form of diaries, case notes, and exchanges of letters, but I can’t remember seeing a novel written as an indictment.

It’s got to be an oversight, because the indictment of former Governor Bob McDonnell and his wife Maureen makes the potential clear: Within the constraints of the genre’s just-the-facts style, it still manages to build a sense of character and theme.

As the story begins, Bob and Maureen have risen to a new level, and can see yet another level beckoning, but don’t realize yet that they’re already in over their heads. Bob is the handsome, articulate new governor of what has recently become a swing state, Virginia. The Republican Party chooses him to respond to the 2010 State of the Union. He’s elected chair of the Republican Governor’s Association. He’s even being talked about as a likely running mate for Mitt Romney, who needs to reach out to the Christian Right without alienating the mainstream. And if Bob performs well on that national stage, who knows? He could be president himself someday. (If only he hadn’t backed that forced-transvaginal-ultrasound bill just as the war-on-women meme was starting to take off. Rick Perry did the same thing a year before, and nobody called him “Governor Ultrasound“. Bad timing!)

The big stage is full of important people to impress. But there’s a problem: money. The McDonnells were never rich, and then Bob bought property at the peak of the housing boom. (Bad timing again!) It’s so hard to cast the right image when your investments cost you more in mortgage interest than they generate in rent, and you can’t sell without revealing a huge loss. Where is Maureen going to get the designer gowns she needs for the Inaugural Ball and future formal events? How is Bob going to sport a Rolex or tool around in a Ferrari? How is the McDonnell daughter going to get the kind of wedding that an up-and-coming governor ought to be able to give her?

Enter the rich founder of a dietary-supplement company that (like Bob) seems right on the verge of bigger things. Bob and Maureen didn’t meet him until after Bob became governor, but he instantly becomes such a good friend to them — so nice, so generous; all they have to do is ask, and he provides whatever they need. And he asks so little: if the First Couple could only lend his company their names and images and the backdrop of the Governor’s Mansion, if they could lean on the state universities to do some legitimizing research.

Once the wrongdoing begins, the McDonnells are such clumsy criminals that you may end up feeling sorry for them. (Sometimes a lie can be so obvious that it’s almost honest.) They conspire in email and text messages. They know their stock holdings look suspicious, so they sell in December, fill out the year-end form, and then buy the shares back in January. Who could possibly see through such clever subterfuge?

But don’t worry, Bob and Maureen, a happy ending is on its way. The indictment ends with 14 reasons you should be admitted to a special federal academy, where experienced criminals can teach you how it’s really done.

Is he the right comparison?

Having looked at the indictment, you should also consider the McDonnell’s defense, which claims this is all politics. Some outside observers also say the case “is no slam dunk” because of “the fine line between what is illegal versus what is unseemly”. The point here is that McDonnell made no specific official action as governor to benefit his “friend”: McDonnell didn’t veto a law or appoint somebody to a state office in direct response to a gift. He sold the trappings and influence of the governorship rather than its constitutional powers.

In MSNBC reports on the case, you’re likely to see comparisons to a Democratic governor in jail: Rob Blagojevich, who famously tried to sell the Senate seat Barack Obama left to become president. But a comparison friendlier to McDonnell would be Don Siegelman, former Democratic governor of Alabama, also now in prison.

Or is he?

Like McDonnell’s defenders, Siegelman’s (including 60 Minutes) point out that some elements of the classic bribery story are missing: Siegelman did take an official action (re-appointing to a state board someone who had already served on that board under previous governors), but received no personal benefit (the appointee made a contribution to a fund campaigning to bring a state lottery to Alabama, a policy Siegelman favored).

In essence, both Siegelman and McDonnell claim that they didn’t cross the line between the man and the governor: Siegelman used his powers as governor to pursue his policies as governor, perhaps in an unseemly way. McDonnell used his prestige as a man (who happened to be governor) to reward someone who gave him personal gifts. In each case, the question is whether the law is being enforced in a politically biased way: How many other politicians could we send to jail under the same standards? And is there a partisan reason why we don’t?

Keeping the Con in Conservatism

This week RedState.com founder and Fox News pundit Erick Erickson had an embarrassing plagiarism scandal. No, he didn’t steal somebody else’s attack on ObamaCare or their analysis of immigration reform. On Tuesday Erickson emailed his subscribers a 600-word endorsement of an investment newsletter. He didn’t just forward a link, he wrote in the first person with feeling, and signed his name:

[Mark Skousen] is the most brilliant and accomplished financial advisor I know. … Let’s face it: Making money in Obama’s America is tough — and keeping it, harder still. So we can all use as much trustworthy financial advice as we can get. The best investment advice I know of, bar none, can be found in Mark Skousen’s Forecasts & Strategies — and I urge you to give it a try.

Such sincerity. Clearly, if you trust Erickson’s view of the political world, you should trust Skousen’s view of the financial world.

It sounded just as sincere in 2009 when Ann Coulter sent a virtually identical email out to her subscribers.

Ericson’s defense is also striking: He denies he made money. He’s just “happy to support a friend”. Alex Parene points out the problem here:

If, as Erickson claims, he did not get paid for this endorsement (or, rather, if he wasn’t paid to have his name affixed to this boilerplate get-rich-quick scam email), then his claim to moral purity is that he sold out his readers for free.

If you follow the links, you wind up listening to a video explaining “the elite SS-4 income stream” that “can make you America’s next millionaire” which you’ll learn more about if you subscribe for a mere $99 for the first year.  (BTW, Mark is a nephew of Glenn Beck’s hero W. Cleon Skousen.)

There are, of course, people whose business it is to track the recommendations of investment newsletters and rate how they do. That opinion on Skousen is far less glowing. But what do those people know with their “facts” and “data”? Those are the same kind of people who couldn’t see how the polls were skewed to favor Obama, when actually Mitt Romney was cruising to a win — which he totally would have had if not for voter fraud (that nobody can find any evidence of other than the fact that Romney lost).

The dirty secret of the conservative movement is that this stuff happens all the time, as Chris Hayes pointed out in this tweet:

Now why would he say something so rude? Maybe he remembers Glenn Beck pushing his viewers to buy gold while not mentioning that he was a paid pitchman for Goldline, a less-than-upright gold-selling company. Or that Freedom Works paid Beck and Rush Limbaugh to say nice things about them. And Americans for Prosperity paid talk-radio host Mark Levin. Politico writes:

The increased willingness of non-profits to write big checks for such radio endorsements – which appears to have started in 2008, when Heritage paid $1.2 million to sponsor the talk shows hosted by Hannity and Laura Ingraham – seems to be a primarily, if not entirely, a conservative phenomenon.

Former Fox News pundit Dick Morris came up with a great money-making idea. He sent out fund-raising emails for SuperPAC for America, which spent a pile of that money renting Morris’ email list. So money Morris’ followers sent in “for America” just cycled back into Morris’ pocket. (Similarly, Sarah Palin spent PAC money to promote her book, and even to buy copies of it to give away.) Republican candidates also spent money renting Morris’ list, and (totally coincidentally), Morris praised them on Fox.

And then there was the time the Malaysian government paid American conservative bloggers under-the-table to trash the democratic opposition.

You just don’t see this kind of stuff on the Left, where the standards are simply higher. For example, Fox News host Sean Hannity regularly speaks at fundraisers for Republican organizations and Republican candidates, but MSNBC suspended Keith Olbermann just for writing a check to Democratic candidates. In 2010, Fox News was a nice place for Republican politicians to draw a paycheck while they decided whether to run for president. I will be truly shocked if Hillary Clinton or any other Democratic hopeful gets hired by MSNBC. (Eliot Spitzer is the exception that proves this rule. When MSNBC hired him, who imagined he could ever again have a political career?)

So why is this? Rick Perlstein got into the issue a little deeper a few months ago in a Baffler article The Long Con. He signed up for the email lists of conservative sites like Townhall and NewsMax, and started getting a completely different kind of spam: Not just appeals for candidates and charities, which liberals get too, but get-rich-quick schemes and miracle cures. (He quotes Ann Coulter’s Skousen endorsement, not realizing we hadn’t seen the last of it.)

What Perlstein noticed is that the right/left difference isn’t just in conflict-of-interest standards at the top. It’s a cultural difference that goes all the way down. Conservatism is built out of subcultures like multi-level marketing (i.e. Amway), pyramid schemes, televangelist networks, conspiracy-theory groups (i.e., the John Birch Society), and so forth. (The self-promoting conflict-of-interest stuff goes way back too: The one thing I remember from reading the classic None Dare Call It Conspiracy in high school is that the solution is to expose the conspiracy by buying a bunch of copies of None Dare Call It Conspiracy and giving them to your friends.)

The subject matter may be different, but the thought-patterns are the same. If you believe that evolution is a conspiracy of atheist biologists, then why wouldn’t you believe that global warming is a conspiracy of socialist climatologists? And if a secret cabal can launch a decades-long plan like faking Barack Obama’s birth annoucements and grooming him for the presidency, of course those people would have secret investment strategies that keep them rich without effort. If Cleon Skousen can show you the hidden patterns of history, why couldn’t Mark Skousen reveal the hidden patterns of finance?

Across the board, there is a resentment-of-expertise theme, combined with the myth of the Turncoat Expert, who can let you see behind the facade … for a small fee, of course.

[Little did I know when I started writing this that Salon’s Alex Seitz-Wald was coming out with something on the same topic the same day.]