Tuesday, October 21, 2014

Why the DFL will lose the Minnesota House

The DFL are going to lose the Minnesota House.  There are many reasons for this but the main one is arrogance–both a refusal to recognize a bad strategy and an unwillingness to admit mistakes.
    On the face of it, the DFL has much to cheer about come November.  It will sweep the constitutional offices with Dayton especially winning by a wide margin.  Franken too will win, probably big, as there is no sign that the election is tightening, contrary to what reporters any my colleagues rotefully declare.  The coattails of these statewide victories plus the large cash advantage that the DFL enjoy should in theory be enough to keep them in power in the House.  But it won’t be enough.
    Yes, there are obvious reasons why the DFL will lose.  Obama is unpopular and dragging down the party.  It is a mid-year election and DFL voters are less likely to vote.  Both of these factors explain why big-name Democrats such as the Clintons and Michelle Obama have visited the state with the hope of rousing the base and instilling passion into DFL voters.  But still that will not be enough to overcome other major problems of the DFL.
    Consider first that the DFL won many seats in 2012 by close margins in Republican areas.  They did so in part because if was a presidential election year and also because they benefited from Republican legislative overreach in the 2011-2012 session.  This means the DFL are defending many seats that are in Republican areas, or at the least, seriously lean GOP or are at best swing. 
    The second problem is the lack of a Democrat or DFL narrative.  Obama had a great narrative  in 2008 but since then at the national level there has been no narrative for reelection.  That is why Democrats were trounced in 2010.  Obama held on in 2012 because Romney was such a horrible candidate.  Dayton won in 2010 because Emmer was a weak candidate, and in 2012 the DFL won less on their narrative and more on GOP failures.  This year, there is still no national Democrat narrative and at the state level, the narrative too is missing.  Yes Dayton and Democrats can run on  their record of accomplishments and on a good state economy, but neither play well in swing districts.  Moreover, the DFL do not have a good narrative to counter MNSure, Obamacare, the new Senate Office Building, and many of their other legislative acts.  Yes all of these play well to the base, but not to swing voters. There is a nagging yet silent sense of DFL over-reach here, but when you put it all together, what is the narrative?   “Four more years?”  “If you liked the past you will love the future?”  The narrative is cloudy at best, thereby explaining in part the lethargy of the DFL voter.
    But perhaps the main reason why the DFL will lose the House has to do with arrogance.  It is arrogance on several scores.  Over the last few months I have given more talks across the state than I can count.  Repeatedly I hear that th DFL is using a cookie-cutter approach to running a state legislative campaign.  They are using the same messaging, GOTV, and tactics in all of their campaigns.  Such an approach is a recipe for failure, ignoring the special issues and needs of different districts.  While we may live in a era where elections are often nationalized, Tip O’Neill is still correct that all politics is local. 
    Almost 30 years ago I moved to Minnesota and saw a party still fixated on the past. I saw a  DFL bureaucratic and dominated by a small core of activists who in many ways still dominate the state and think the way you win is the way they used to win.  Say what you might about the GOP, but the TEA has brought in a new crop of activists into the Republican Party, willing at times to challenge it with new ideology and tactics.
    But what I have heard about and see this year is that the DFL leadership has refused to acknowledge that their strategy and campaign projections are flawed.   It is a urban-based approach that might work well in cities with lots of Democrats, but it is still not well suited for many suburbs  and especially rural Minnesota. I have heard several DFLers over-confidently say there are only about 8 swing races in the state, self-assured that there are some seats they really do not need to defend. Too many individuals have told me that they have been refused support or volunteers because the DFL thinks their race is unwinnable.  Or that the DFL has not supported a race because of petty jealousies. 
    There is a lot of ego on the line here.  Many in the DFL leadership have a stake in being considered wise gurus–they have decided who can win or lose and how–and they do not want to prove themselves wrong less they lose their stature within the party.  This insularity and making it all about them is a sure downfall for the DFL this November.

Sunday, October 19, 2014

The Fox 9 Hamline Gubernatorial Debate: Cautious, Controlled, and Scripted.


    Cautious, controlled, and scripted.  This is how I would describe the Sunday morning Minnesota gubernatorial debate between Jeff Johnson and Mark Dayton.
    I attended MN gubernatorial debate at Hamline and did post-debate analysis with Jeff Passolt of Fox 9. 
    The debate was cautious, controlled, scripted, and candidates stayed on talking points. It was boring in many ways.  No gaffes (although both parties tried to spin me that their candidate hit a knock out punch or that the other gaffed). Johnson did not hit a home run and Dayton sat on his lead. Johnson is a better speaker but neither have much passion. They were listless at times, boring at others.  They were so cautious, giving predictable answers to questions often not very interesting such as your favorite fast food, or whether they had either smoked pot.    Republicans tried to argue that Dayton saying he supported single payer insurance was a game changer, but is anyone really surprised by this?  Conversely, some said that Johnson saying he had no clue on how to define the middle class was a gaffe.  Doubtful. 
    Finally, neither really seemed to have a grasp on the details of public policy–lots of general views on visions of the government and general  statements about what they want to do but not a lot of policy detail.  For geeks like me who worked in government writing laws and implementing them (or teaching policy making and implementation), the debate was thin on details.
    I think the race is essentially over and absent a real unforeseen event Dayton wins.  The polls have not changed much since the August 12, primary, putting Dayton at about a 10 point lead.  There is no evidence the race is tightening, early voting is depleting the number of individuals who have not voted, the DFL has more money than the GOP, and Johnson has done nothing to change the narrative to his favor.


Excluding the Independence Party
Depending on how one it was described, the debate was either co-sponsored by Hamline  and Fox 9 or the latter sponsored it and Hamline merely rented space.  I mention this because there was controversy surrounding the decision to exclude IP candidate Hannah Nicollet from the debate.  Because I teach at Hamline I will not take a position on this decision.  I will simply say that I have taught election law and non-profit law for 16 years and have done training and given advice to hundreds of non-profits.  I often advise them to be careful during election season when inviting candidates to address their organization.  All candidates must be given a equal opportunity to address  their organization (if an invitation is extended to any) on terms that are comparable.
    Ms. Nicollet may have done better getting press by being excluded from the debate than by attending.  Had she attended, she might have broken up a debate that was simply not that interesting.


Physical Punishment for Children
One question they both bombed was on the issue of physical punishment for children. Neither know the law. Both tried to draw lines between legitimate and excessive physical punishment. I have worked with social service workers who tell you that any use of physical punishment against children by parents or foster parents is considered wrong. Culturally we are moving away from the idea it is okay to spank kids. The idea that we can hit children is contrary to the law and IMHO, just outdated. But neither wanted to take the lead on this issue.

That is what the law says but go talk to any caseworker and they will tell you that any instance of physical punishment they treat as abuse. Current law allows some physical punishment but the difficulty Johnson and Dayton had in drawing the line reflects the fact that it is difficult to draw the line. That difficult line drawing (my opinion) tells me that physical punishment against children is or should be as outdated as the concept that husbands should be allowed to physically punish their wives. We call that domestic abuse--a crime--and hitting children should be viewed the same way.

BTW
Had a fun time  talking to Jeff and Kelcey Carlson from Fox 9--both terrific people. Jeff and I talked snow shoeing and cabins and we explained who Bronko Nagurski was to Kelcey.  Keley and I talked running.

Saturday, October 11, 2014

The 2014 Elections and the Second Great Disenfranchisement

Elections are supposed to be the way people select their leaders. Increasingly that is no longer the case.  The courts now occupy an enormous role in determining the outcome of elections–even before they start.  That is clearly the case this year where too often the goal has become to rig elections by making it harder for some, especially people of color, the poor, and the young, to vote.  This especially seems to be the strategy of Republicans who continue to push the Second Great Disenfranchisement in American history.
    Consider what is happening across the country right now, with less than a month before the election and early voting already taking place in many states.
    The U.S. Supreme Court upheld Ohio’s curtailment of early voting which was adopted by Republicans, after a federal district court and a court of appeals stayed the law.  Republicans in Wisconsin pushed through a strict voter ID law and just in the last few days the Supreme Court has enjoined its enforcement for this election.  Suits are challenging limits passed by Republicans in North Carolina limiting on  same day voter registration and a ban on counting ballots from incorrect precincts.  And in just the last few days a federal judge enjoined a voter ID law in Texas that would have disenfranchised over 600,000 voters, especially impacting African-Americans and Latinos.  This law too was pushed by Republicans including the state’s governor Rick Perry. 
    In all of these cases it is Republicans pushing to shrink the electorate, to make it more difficult for people of color, the poor, and young to vote.  If the First Great Disenfranchisement came after Reconstruction ended in the 1870s, we are now witnessing the Second Great Disenfranchisement.  The former ushered in the era of Jim Crow, polls taxes, literacy tests, and grandfather clauses as tools to deny African-Americans the right to vote.  Today claims of voter fraud and measures such as voter ID, long voting lines, eliminating early voting, and the gutting of the Voting Rights Act are the tools to accomplish the same.
    Republicans generally are advocating  limits on voting, depressing voter turnout even more during midterms elections when Democrat-leaning voters are less likely to show up.  This seems to be part of a national strategy to rig elections in their favor.  In some states, such as Wisconsin and North Carolina, these curtailments of voting rights could make a serous difference in who wins as governor or the US Senate, and ultimately which party might control the Senate.
    But even beyond legal efforts to disenfranchise, another one is occurring.  Nationally, perhaps only around 38-40% of those eligible to vote this year.  Young people, people of color, and the poor are especially likely to stay home.  Yes it may be true that neither of the major parties offers any alternative or real choice for these people, but still one should vote.  Vote even if it means writing  in a candidate of your choice.  Show up, vote, and use it as a protest vote if needed. Get in the habit of showing up and demonstrating to the two parties that your voice matters and it should be considered.
    A lot of blood and energy was spent in the passed to get the young, people of color, and the poor the right to vote.  Don’t waste those past efforts.  Remember, there are many people who don’t want you to vote and who did not want your ancestors to vote.  Voter ID laws and other legal restrictions are bad but it is even worse if you decide not even to bother to show up.

Side note:  Over the last few days I have heard several commentators and reporters remark that despite the fact that Dayton and Franken have large leads in the polls the races will certainly tighten.  Really?  What is the evidence for that?  In past elections that has happened but so far there is no evidence from the polls that these races are getting any closer.  Since the August 12, primary both Franken and Dayton have maintained leads from at least 8 points to more.  There is no evidence from the polls that the races are getting close.  Instead, the evidence suggests either that public opinion has frozen or that the incumbents have leads that are increasing.  Yes, I have some disagreements with the polls but right now there is no hard evidence to suggest these races are getting any closer.  In fact, it is entirely possible that minds have been made up and that where we are now is where the final outcome will be.  My point?  Lacking evidence to the contrary, it is bad analysis to say that the races will tighten unless you have good data this year to support that assertion.

Friday, October 3, 2014

Constitutional Personhood: a tale of women, fetuses, corporations, animals, robots, and Martians

Note:  This was my Constitution Day talk at Hamline.
“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we.  But as the Hobby Lobby decision showed when the Supreme Court ruled that a corporation had religious rights, it is not always clear who or what the Constitution considers a person or a thing.  One would think that it is simple–persons have rights, property does not.  The reality is that throughout American history the constitutional line between property and personhood has been thin and contentious.
     The text of the Constitution uses “person” 22 times.   Many instances refer to eligibility to run for office such as president.  But two places, Article I sections 1 and 9, refer to “other persons” when discussing slaves for the purposes of determining congressional representation, apportioning taxes and regulating slave trade.  They and  Indians were to be counted as “three-fifths” of white male persons when it came to representation.
    While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship.  In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom.  Chief Justice Taney declared that while slaves were people the Framers did not intend them to be considered persons with rights.  Using the Fifth Amendment that stated that no owner shall deprived property without due process of law, slaves were declared possessions of their owners.
    Slaves and Native-Americans were not the only constitutional outcasts.  As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the Continental Congress to “remember the ladies” when they met to declare independence.  Yet in the 1875 Minor v. Happersett decision the Supreme Court acknowledged women to be persons and citizens yet nonetheless could be denied the right to vote.  A decade later in County of Santa Clara v. Southern Pacific Railroad Company the Supreme Court simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
    Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status.  For corporations, personhood grants them the right to free speech,  and now free exercise of religion under Hobby Lobby.  They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
    Children are persons and at one time in cases such as Tinker v. Des Moines the Supreme Court declared that the Constitution protects them.  Yet minors cannot vote and they face many legal restrictions on their behavior ranging from due process to smoking and drinking.  Resident aliens are persons, but enjoy fewer rights than citizens. Undocumented individuals should enjoy no rights according to some.  And since 9-11, it is not altogether clear what rights persons detained at Guantanamo Bay deserve.
    The battle over personhood and property continues to perplex American society and constitutional scholars.  Property is afforded significant constitutional protection and  challenges to land use, eminent domain, and regulatory laws often assert ownership rights. The 1973 Roe v. Wade decision legalizing abortion declared that “person” did not include the unborn.  Yet the Court did not say that the fetus was property, it was something in between requiring a balancing of its rights against the mother.  A fetus is not a person but many states criminalize women who smoke, drink, or do drugs while pregnant.   Six states have declared a fetus a person and North Dakota voters may do that this November.  But declaring a fetus to be a person still will not resolve what rights it has.
    Consider new frontiers in the battle for personhood.  Animals are legally property but laws ban cruelty and maltreatment.  Advocates urge that primates such as bonobos have a sufficient sense of intelligence, self-awareness, or pain that they are morally indistinguishable from humans and therefore should have their rights respected.  Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
    Other frontiers sound more science fiction.  While the Supreme Court declared in its 2013 Molecular Pathology v. Myriad Genetics that human genes could not be patented, the case highlighted the increasingly fine line between human or person and artificial.  The 1970s television show The Six Million Dollar Man featured Lee Majors as a  human re-engineered with artificial parts and computers.  Is a future six million dollar man a person?  Consider Hal, the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal is turned off is that computercide?  When human replicants from Blade Runner kill in the future, will they be persons liable for crimes?  Is Data from Star Trek a person?  Finally, assume the proverbial aliens from Mars land on Earth, will the Constitution consider them persons entitled to rights? 
    Hobby Lobby thus demonstrates whether something is a person or property is only the beginning of  a constitutional debate about rights.  It also shows how controversial that determination is.  For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.

Saturday, September 13, 2014

The Lessons of Vietnam: Why Obama’s, McCain’s, and All the Other ISIS Plans will Fail

Listening to Obama’s speech Wednesday outlining his ISIS strategy was deja vu’ all over again.    It regurgitated the same failed strategy to deal with terrorism that Bush first gesticulated; but more importantly it uncomfortably demonstrated yet again the failed lessons of Vietnam that American leaders have yet to learn in the 40 years since that war ended.  His speech, along with the other plans proposed by the neo-cons and warmongers such as John McCain and Graham Lindsay, aptly confirmed one of the greatest lines by Karl Marx who stated once in his The Eighteenth Brumaire of Louis Bonaparte: “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.”
    In a nutshell, Obama’s strategy is simple and simpleminded–America will drop tons of bombs on ISIS, expand the war to Syria, and rely upon ground troops provided by Iraq and other countries to replace Americans on the ground. It is a military strategy devoid of a political solution, emphasizing that it may take years (and into the next presidency) to succeed.  Obama inherited a failed war and is now passing it onto the next president.
    How much this reminds me of Vietnam, except not Obama is both Johnson and Nixon at the same time. President Johnson inherited a nascent war from Kennedy only to escalate it and then in  the waning year of his presidency to express remorse about its efficacy after the Tet Offense in 1968 where any confidence of US victory was destroyed by a massive North Vietnamese offense in January of that year.  The war cost Johnson a second term as president.  Nixon took over, again escalated it, including expanding the war illegally and secretly with bombings into Cambodia.  When  that did not work, Nixon’s peace plan was the “Vietnamization” of the war–replacing American ground troops with those of the South Vietnamese–hoping that the latter would be able to continue the war and delay America’s indignant and inevitable loss for a few years. 
    Obama’s expansion of the bombings and reliance upon Iraq or other ground troops is just Cambodia and Vietnamization warmed over.  But so was Bush’s response to 9-11, or to the invasion of Iraq in pursuit of the nonexistent weapons of mass destruction.  In all these cases the assumption was that American military might will overwhelm the enemy, liberating the people to form their own democratic societies.  It worked really well in Vietnam, Afghanistan, and Iraq.
    Alone the factual parallels to Vietnam should be instructive to why the Obama, McCain, et al plans will fail.  But dig deeper, there are two major lessons or reasons why any of the plans currently proposed are farces.  First, consider Powell Doctrine.  General Colin Powell in 1990 stated that the use of US military force needs to answer several questions, including asking whether there is a vital US interest at stake?  Are there clear objectives for the use of force?  Is there a clear definition of success?  And is there an exit strategy?  On all accounts, what Obama described in his Wednesday speech missed the mark.  About the only real rationale for going back to war is that we failed before  and that now we need to do more of the same to postpone failure even longer.  It is not clear what the US interest is, and even if there is one, we have no benchmarks for success or a strategy for leaving.  Quagmire was the word once used to describe Vietnam–that is the new word now for Iraq.
    But even more profoundly, the failure of Obama’s strategy lies in perhaps the most important lesson of Vietnam–the limits of US military power.  The single greatest book on Vietnam remains  Frances FitzGerald’s Fire in the Lake: The Vietnamese and the Americans in Vietnam.  In describing the failed war she describes of the US escalation into Vietnam:

    It was entering into a moral and ideological struggle over the form of the state and the goals of the society.  Its success with the chosen contender would depend not merely on US power but on the resources of both the United States and the Saigon government to solve Vietnamese domestic problems in a manner acceptable to the Vietnamese.  But what indeed were Vietnamese problems, and did they even exist in terms in which Americans conceived them?  The unknowns made the whole enterprise, from the most rational and tough-minded point of view, risky in the extreme.   (Boston: Little, Brown and Company, 1972), 6-7.

The tragic failure of Vietnam was that it was really a battle for the hearts and minds of the people–not a war that could be one on the battlefield with bombs.  The US did understand that the problem of Vietnam was not a geopolitical one between communism and democracy, but a more indigenous cultural battle among the people there.  The same is true in Iraq and Syria.  This is not a global battle over terrorism and freedom but a problem that has to be solved by the people in that part of the world.  Dropping bombs does little to resolve the fight, especially if as in Vietnam it hurts  civilians and pushes them to the other side or continues to prevent people from solving their own problem.
    Missing from Obama’s and all the other plans is an asking of the question to why ISIS is so successful in recruiting supporters.  There is no plan to ascertaining why, for example, individuals from the Minnesota Somalian community are joining terrorist groups or why British citizens are becoming ISIS members who are beheading Americans.  Until such time as the focus shifts to asking these questions, to realizing that a strategy in place since Vietnam will not work, the current plans too will fail in farcical ways.

Wednesday, September 10, 2014

Political lies and the First Amendment: What role should deception have in politics?

My blog today appears in Minnpost.  Please visit it.    The title is "Political lies and the First Amendment: What role should deception have in politics?"  It examines a recent Court of Appeals decision striking down a Minnesota law making it illegal to lie about ballot propositions such as school bond levies.

Sunday, September 7, 2014

Amend the Constitution to restore the democracy the Roberts court killed

Please note:  This essay originally appeared in The Hill on August 29, 2013.


Money is not speech. Corporations are not persons. Most of us intuitively understand that. The Supreme Court clearly does not. In Citizens United v. FEC, it ruled that corporations have a First Amendment right to expend unlimited amounts of money to influence elections. More recently, in McCutcheon v. FEC they struck down the overall caps on how much money wealthy individuals can contribute directly to campaigns and to party committees. The Supreme Court’s decisions are wrong and they deserve to be overruled with a constitutional amendment to restore the First Amendment to its rightful place protecting American democracy, instead of as a tool to suppress speech rather than enhance it.          

Some will object that we should not amend the First Amendment, that it is fine the way it is. However, the Supreme Court's recent decisions have twisted the meaning of that Amendment from supporting democracy to privileging it for the few.  The Supreme Court has been wrong in the past and they have been corrected with constitutional amendments and laws. This is called checks and balances.


A century ago reformers such as Teddy Roosevelt rued the rise of wealthy corporations and individuals corrupting American politics. Supreme Court Justice Louis Brandeis stated:  "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both."  Thus was launched a battle against the undue influence of wealthy special interests that included anti-trust laws, bans on corporate political activities, progressive taxation, and campaign finance reform legislation. The Richard Nixon Watergate abuses produced more reforms, including public financing of elections, disclosure laws, and political contribution and expenditure limits.          

But beginning with the 1976 Supreme Court decision Buckley v. Valeo, wealth fought back.  The Court ruled that limits on how much money candidates, groups, and wealthy persons could spend were unconstitutional.  The Supreme Court under Chief Justice Roberts continued to hack away at efforts such as McCain-Feingold to limit the power of money in politics. Citizens United and McCutcheon are only the most recent examples of how the Court is letting money and privilege entrench itself, preventing the political system from functioning. The gridlock in Congress and rising inequalities across America are the result.          

The First Amendment under the Roberts Court has become a tool to suppress speech rather than enhance it.  The First Amendment free speech clause is not meant to be a right for one or the few but for all. It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible. There is no way that a rule that says all of us have an unlimited right to shout is viable; at some point, one has to understand that the First Amendment rights of some have to be read or understood in light of the rights of others. The right to free speech cannot be interpreted in such a way that the rights of a few can suppress the free speech rights of others. As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  Citizens United, McCutcheon, and its defenders fail to recognize this principle.          

Money should not be a factor determining who holds political power, what bills are passed, and how elections are run. The issue is not only whether money buys influence or corrupts. It should be whether money should at all be the criteria by which political power or influence is allocated, and whether the First Amendment should shield such privilege.          

Justice Rehnquist, dissenting in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power.  He declared: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” And in Federal Election Commission v. National Right to Work Committee, the Court quoted the federal government’s brief in that case that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”           

What these comments from the Supreme Court suggest is a recognition by it at one time that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem with Citizens United and McCutcheon is that five Justices radically departed from past precedent and failed to understand how a democratic system derives its legitimacy from political equality. Money and wealth should not rule in American democracy; it should be real people, all the people. Previous Supreme Courts understood this, but not the Roberts Court.  This is why we need a constitutional amendment — to restore democracy to America.