Friday, December 26, 2014

Race a political factor, costing Democrats

Is race a factor in American politics?

That has been a tough question to answer, because in recent decades, people have become unlikely to express openly their views on race.  Academic analysis has found that people have a “tendency to withhold socially unacceptable attitudes.”

And, with the election of African-American Barack Obama as president, some people have come to believe that race as a political factor has disappeared.

But there are some clear indications that the historic American political issue of race remains alive.

In 1964, President Lyndon Johnson, a Democrat, signed the Civil Rights Act, which assured the equal rights of African-Americans, and promised federal government action to protect their rights.  When he signed, he reportedly remarked that his action would turn the South over to the Republicans for a generation.

The South had always been solidly behind the Democratic Party, which favored segregation and white political supremacy.  With few blacks voting, the southern white electorate could assure continual Democratic control.

But as the Democratic Party changed, including more of the newly enfranchised black voters, whites began moving out to breathe life into a sleepy GOP that under Lincoln had been the party responsible for freeing the slaves.

This year, in nine of the eleven states that formed the Confederacy, leading to the Civil War, there is no statewide major office holder – governor or senator – who is a Democrat.  Out of the 33 possible slots, only two are filled by Democrats.

This political development is one sign that race still matters.  In fairness, though, it must be noted that one of South Carolina’s GOP senators is an African-American.

The U.S. Supreme Court recently overruled Congress, which had determined that efforts, mostly in the South, to block African American voting still needed federal attention.  A new study suggests the Court’s view is overly optimistic.

With seeking to find out if voters hold racist views by means of polling proving so unworkable, because of people’s reluctance to state openly their feelings on the matter, another way of looking at the presence of racist views had to be found.

A Google search is conducted by a person alone in front of the computer.  It eliminates as an influence the wish to avoid a socially unacceptable action.

A study developed at Harvard University tabulated Google searches for racially inflammatory terms.  Though the analysis was complicated, in simple terms it compared racist “hits” with voting behavior in the last three presidential elections.

The first result of the study was scoring each state and the District of Columbia.  States were ranked in line with the results.

Interestingly, Maine ranked 32nd, right after California.  Some 59 percent of California’s population is African-American, Asian or Hispanic, so it would be reasonable to expect less racial bias there.  But, in Maine, those groups comprise less than four percent of the population.  (For details, search Google for “Racial Animus and Voting” and this study will be listed.)

The central part of the study focused on whether racial attitudes affected the outcome of the recent presidential elections, assuming that when John Kerry, a white Democrat, ran in 2004, there was no reason for racial bias.  The question was whether when Barack Obama, a black Democrat, ran in 2008 and 2012, racial bias showed up among the voters.

The study found “relative to the most racially tolerant areas in the United States, prejudice cost Obama 4.2 percentage points of the national popular vote in 2008 and 4.0 percentage points in 2012.”

In 2008, Obama won by a margin of 7 percent and, in 2012, by 4 percent.  Without the racial element, his electoral vote might have approached landslide proportions.

He appeared to gain little from his race, because it is unlikely that white voters supported him because he was black.  African-Americans, who represent a small part of the total vote, were already heavily Democratic supporters.

Undoubtedly, Obama’s election in 2008 was read by both black and white voters as indicating an improvement in race relations.  About 64 percent of blacks saw improvement.  

But, according to national polls, by 2011 attitudes were falling back to pre-Obama levels and, this month, only 35 percent of blacks thought race relations are good.  The reaction of whites was similar but the swing was less wide.

Perhaps hopes were too high for how much change Obama could bring.  But the GOP’s unwillingness to cooperate with him on virtually any major issue may have suggested to African Americans that there is a political desire to prevent a black president from ending up with a successful record.

Friday, December 19, 2014

Congress now has four parties. Is compromise possible?

Voters said in November they wanted bipartisan cooperation in Congress next year.  They got their wish early as this year’s Congress move toward its end.

They may have also helped create a Congress next year composed of four political parties not only the deadlocked Republicans and Democrats.  Both of the major parties have split in two.

The GOP divide developed after the 2010 election of candidates backed by the Tea Party movement.  Having made strong commitments in their campaigns to stick to their promised conservative positions, they have refused to accept the compromises necessary to pass bills.

Their power came partly from an informal rule that the GOP would not pass bills unless they had the support of a majority of the majority.  In other words, unless bills could gain the votes of most of the 
Republicans, they would not even be considered.

At first, longer serving Republican House members, worried about primary challenges from tea partiers, went along with their hard line.  But, by the 2014 congressional elections, traditional Republicans, not moderate but willing to compromise, beat Tea Party challengers and regained their confidence.

Republicans won control of both houses of Congress, and many of their leaders believe that winning the presidency in 2016 means showing the party can govern and that governing requires compromise.

Across the aisle, Democratic legislators have been criticized by some of their supporters for being so worried about the apparent popularity of GOP conservatism that they either adopt similar views or do not pursue traditional party positions favoring an active government role in matters ranging from environmental protection to bank regulation.

Some Democrats attribute their party’s losses in this year’s congressional elections to many of its candidates having taken up anti-government positions.

As a result, a split has emerged between so-called progressive Democrats, who see an important role for government, and moderate Democrats who seek compromises with the GOP, recognizing the congressional balance of power will favor the Republicans for at least the next two years.

The role of each of these four “parties” became clear during last week’s votes on adopting a federal budget.  Failure to do so would have forced the government to shut down, which most senators and congressmen, to say nothing of the president, did not want.

The compromise required that Democrats accept GOP add-ons.  One eases controls on big banks, allowing them to undertake risky investments with federal backing, making a federal bailout again possible.  The other allows a ten-fold increase in the size of financial contributions to political parties.

The House voted first, adopting the budget by a narrow 219-206 vote.  Among the Democrats, 57 voted for the bill, to support both compromise and President Obama, who had announced he could accept it.  On the other side, 67 Republicans, who failed to get the bill to block Obama’s immigration policy, opposed the compromise.

Maine representatives, both Democrats, voted against the bill, because of their opposition to the GOP amendments.

The same story unfolded in the Senate in its last days under Democratic control.  The budget passed 56-40.  As in the House, the opposition came from a mix of members of both parties, with the GOP seeking an attack on immigration policy and the Democrats opposing the relaxed bank regulation.

Both Maine senators, Republican Susan Collins and Independent Angus King, supported the budget compromise.  They have campaigned as compromisers.

The development of two split parties in Congress could lead to further compromise deals as the Republicans try to pass bills that the Democrats won’t filibuster and Obama will sign.  In that way, Congress will slide to the right, rather than moving as rapidly as the tea partiers want.

Republicans, in the Senate majority, may be willing to spurn the tea partiers to show they can govern.  Among the Democrats, the compromisers and those who view making deals with the GOP as selling out, will test their relative strength.

The intra-party congressional struggles are likely to be reflected in the presidential candidate selection process.

The GOP, rejecting tea partiers, could lean toward selecting a traditional conservative like Jeb Bush, the former Florida governor, or John Kasich, the current Ohio governor, to show it wants to govern and not merely score debating points. 

While Hillary Clinton seems likely to gain the Democratic nomination, she may face opposition from the progressives, perhaps led by Massachusetts Sen. Elizabeth Warren.  Whether that pulls Clinton to the left or costs her the nomination remains to be seen.

Whatever happens, the four-way split promises an unusual political scene in the next two years.

Friday, December 12, 2014

Power of the prosecutor: Ferguson, Staten Island, Immigration

Recent events have taught many of us a key fact about the criminal justice system that we may not have understood.

The most important element of the system is not the police, the judge or the jury.  It is the prosecutor.

The prosecutor decides on sending cases to trial, the crime charged, the potential punishment, if there is enough evidence to convict, and the priority of the alleged crime in light of available resources, including prison space.

The decision to proceed may lead to a preliminary hearing before a judge to ensure that the prosecutor is not abusing the broad right to proceed to trial.  Or the prosecutor may may choose not to proceed, allowing the person arrested to go free.

A prosecutor may have to refer a possible crime to a grand jury, which can decide if there is “probable cause” sufficient to go to a full trial.

In a grand jury, the prosecutor and witnesses are heard and subject to questioning by the jurors.   
Defense lawyers do not get to cross-examine, and the defendant may not testify.

It is generally accepted that, if a prosecutor wants a grand jury to indict an accused person, it happens.  A judge once famously said that a prosecutor could get a grand jury “to indict a ham sandwich.”

We have recently had three cases of the exercise of this “prosecutorial discretion.”  They have all raised considerable controversy and extreme reactions.

In both Ferguson, Missouri, and Staten Island, New York, a police officer killed a person.  The police officer was white and the slain person was black.

In both cases, a grand jury considered a possible charge.  The prosecutors may have liked using a grand jury so that, avoiding their possible bias in favor of the police, there would be an independent judgment of the incidents.

Neither grand jury indicted the police officers involved.  Critics might conclude that, on their own, the prosecutors would have declined to proceed.  If they were not aggressive in front of the grand jury, they may have achieved the same result, but without taking responsibility for it.  If so, prosecutorial discretion extended right into the jury room. 

In the Missouri case, there was no objective way for others to know for sure what had happened.   
Witness accounts differed, but there would be no trial.  The family of the person killed by the police called for wider use of police body cameras, which should make the facts obvious.

But, in the Staten Island case, there was visual evidence available to both the grand jury and the public.  The slain person had not threatened the police, but had been cornered by several officers for the alleged crime of selling loose, untaxed cigarettes.  Despite his protest, he was thrown to the ground and choked to death.

We do not know what the grand jurors thought, but it is probably safe to assume that the prosecutor did not press hard for an indictment.  In fact, he had granted immunity to all officers involved but one, possibly letting off a person easier to indict than the accused officer.

It is not difficult to conclude that the prosecutor led the grand jury to let the police get away with an unjustified killing.  That may be extreme use of prosecutorial discretion.

When we elect a district attorney, we give the prosecutor that kind of power.  Perhaps, in cases involving the police, appointing an independent prosecutor from distant jurisdiction would make sense.

The final case came with the President Obama’s decision to allow millions of illegal entrants to stay in the United States, avoiding deportation.  While they gain no rights or benefits, they avoid the threat of their lives being disrupted, at least as long as Obama is president.

Obviously, Obama acted because he thought something like his action would be part of immigration reform legislation.  Though such legislation has little chance of getting out of a GOP-controlled Congress, he was trying to goad it into action.

Federal law enforcement agencies are under the president’s control.  Congress has limited the funds available to him for border enforcement.  Lack of resources to pursue all law-breakers is a factor allowing prosecutorial discretion to be used in setting priorities.

What is unusual about Obama’s action is that it applies to so many people.  Usually, we think of prosecutorial discretion applying in individual cases, not to groups of people breaking the law.

All of these cases suggest yet another factor for prosecutorial discretion – politics, whether its the president pushing Congress or a prosecutor protecting the police.

Friday, December 5, 2014

Obama’s greatest move also his biggest failure

President Obama’s greatest achievement and perhaps his greatest failure is the same piece of legislation – Obamacare or, more officially, the Affordable Care Act.

The intent of the ACA was ambitious: to provide health care insurance for most of the 40 million Americans who had no coverage at all.  Without health insurance, these people were likely to be forced to accept inferior medical care.

This law has become they symbol of the failure of the Obama administration and the cause of low ratings of Obama himself.

How did this come about?

It began with the adoption of the law itself.  With control of the House and the 60 votes in the Senate necessary to block a Republican filibuster, Democrats believed they could pass almost any bill they wanted.

Still, they did not have enough support in their own party for a single-payer system, used by most developed countries.  But they could pass a bill that would improve on a system in which health care providers could charge ever-higher prices and insurers could pick who they would cover and set the premiums.

The result was an unusual hybrid system with both some public elements and a continued role for the traditional players.  And it would prove to cover millions more.

The bill shuttled back and forth between the House and Senate.  Secure in their belief they could pass the bill on their own, the Democrats made no concessions to Republicans, especially then Maine GOP Sen. Olympia Snowe, who had shown a willingness to try to forge a compromise.

Then Massachusetts Sen. Ted Kennedy died and was replaced by a Republican, eliminating the Democrats’ ability to block a GOP filibuster.  The only way the bill could pass was by taking the incomplete version already passed by the Senate but without any more House changes and adopting it.

This virtually guaranteed Obamacare would become a bitter issue between the two parties.  The mandate – the requirement for many people to purchase insurance or pay a penalty – was opposed by all Republicans, though it had been a GOP idea a few years earlier.

The situation was worsened by a combination of inaccurate promises and poor promotion.

The president claimed the law, which almost certainly he had not fully read, would allow people to keep their current coverage.  That should have been true, but was not.
Its supporters also said it would not increase costs.  Yet, how could Obamacare, which would insure additional millions of people, cost no more than then current coverage?

These shortcomings were small compared to the complete failure of the White House and the Democratic leadership to promote the law.  Beginning with the 2010 congressional elections, the GOP made Obamacare a national issue, while the Democrats said nothing, mistakenly believing the elections would turn on local issues.

The result was the issue belonged to the Republicans, and the Democrats were continually fighting off attacks or trying to dodge them.

The debate over Obamacare finally came to set the tone of the broader political debate in the country.   
The Republicans could go from attacking the increased government role under Obamacare to opposing the role of government across the board.

And just as with their failure to argue for Obamacare, the Democrats have allowed themselves to be placed on the defensive, at best, or to become anti-government GOP copycats, at worst.

Sen. Chuck Schumer, a part of the Senate Democratic leadership, now says the whole idea was a mistake, and the Democrats should have focused on other issues.

Jonathan Gruber, an economics professor and key player in drafting the law, is now running off at the mouth about how clever he was in fooling Americans about the very nature of insurance, in which premiums paid by some people cover the costs of others.

If the Democrats refuse to be, well, Democrats, they will continue to turn the government over to the Republicans.  This year’s poor turnout in the congressional elections was caused mainly by Democratic voters staying home.

The Democrats could propose the necessary measures to repair Obamacare, even if the GOP refuses to adopt them.  Merely trying to block repeal moves by the Republicans or their friendly Supreme Court majority is not enough.

While the time has passed for offering spending measures to cure every ill, the Democrats could be forthright in making the case for the role of government.  For example, roads and bridges desperately need repair, and that takes government funds.

And, hopeless as it may seem, both parties should seek areas for bipartisan action.