Friday, January 29, 2016

Federal courts legislate, public confidence wanes

Federal courts have become a key part of the legislative process. At the same time, polls report falling public confidence in the courts.

When it comes to the U.S. Supreme Court, that's hardly news. Many know that the Court is now composed of four conservatives, four liberals (perhaps calling them non-conservatives would be more accurate) and one swing vote. It often decides partisan issues along predictable political lines.

Less well known is the degree to which lower federal courts are being used for partisan legislative purposes.

Take the recent action by President Obama to extend the definition of gun show sales, making background checks on gun purchasers more likely. He claims he has the right to take this action in implementing a federal law. His opponents say he has exceeded his authority under the Constitution and usurped the powers of Congress, which lacks the votes to block his move.

This kind of dispute increasingly ends up in a federal district court. The court, which may be located anywhere in the U.S., often is in a state where officials oppose the president's action. There is a good chance the judge will be the appointee of a Republican predecessor of Obama.

The Republican opposition that has developed the effective political use of the lower federal courts. In a current case against Obama's actions to limit the deportation of some illegal immigrants, the Republicans have been able to get a Texas court to suspend the Obama policy until the case is fully heard.

The federal district courts have increasingly become the arena for conflicts between the president and his opposition. At the very least, the appeal to court gives the Republicans the ability to delay the application of the president's policy.

Now this approach has become relatively common, it is possible that, if the roles were reversed, the Democrats would do the same thing.

The weakness in the process may be that the states filing the case could have a difficult time showing they actually would be hurt by the president's action. The general rule is that anybody making a complaint has to show real harm, not just an incidental effect. Courts might toss out cases where states cannot show a major effect on their official operations.

The Obama administration has opposed a lawsuit by Nebraska and Oklahoma against Colorado over its law allowing small amounts of marijuana for personal use. They claim its effect would spill over their borders.

But the Justice Department says the effect would be too slight to justify court action. That's true, and that's the same principle that could be used to stop the use of state harassment lawsuits against presidential action.

If the current trend is allowed to continue without limits on the complaints that can be brought against actions either by the federal government or another state, even if they are policy disputes without specific harm to the plaintiff, the courts could become an even more regular part of the legislative process.

That would inevitably harm an already wounded, impartial judiciary. It was once believed that, at least below the Supreme Court level, the president should appoint the most competent lawyers to be judges. But the political affiliation of judges has come to mean a great deal, especially in the expectation they will decide matters previously left to legislators.

With this possibility on mind, U.S. Senate Republicans heavily used the filibuster to block votes on Obama's court nominees. Appointees of Republican presidents controlled most courts.

Finally, the Democrats broke out the so-called “nuclear option” and eliminated the requirement of a two-thirds, super-majority vote before nominations to lower federal courts could even be considered.

That ended the domination of those courts by GOP appointees. Now Democratic appointees are the majority of federal judges.

Even with Republican control of the Senate, Obama has been able to get court appointees confirmed. Rather than trying to force liberals through the process, he has concentrated on appointing people who will add to diversity among judges – women, African Americans, Latinos.

Though the public may be getting used to the partisan spillover into the federal courts, it seems likely that falling public confidence results from a sense that the courts are less like independent umpires and more like active players.

The politicization of many of the federal courts also represents a reduction in their independent role among the three branches of government. That could have dangerous long-term effects.

To save the integrity of the judicial system, it would help if the Supreme Court would set a better example.

Friday, January 22, 2016

Politicians, media stoke fear, ignore facts

Terrorism breeds fear-mongering. So does the presidential campaign.

Instilling fear in voters by attacking government actions, even without providing practical alternatives, seems to be good politics.

Candidates may threaten to seal off the country by immigration bans or walls. They engage in saber-rattling and suggest personal freedoms should be curtailed.

The media sometimes helps spread fear. One excited and exaggerated example of fear-mongering comes from former ABC newsman Ted Koppel in his best seller “Lights Out.” He warns that the American electric power system is so vulnerable to terrorist attack that the entire country could easily be brought to its knees.

He forecasts widespread, long-term outages with people going hungry and freezing in the dark. The country could become a lawless “Mad Max” wasteland. In short, Koppel tries to scare us into action.

During the Cold War, many assumed the almost perfect ability of the Soviet Union to attack a weak America almost unable to defend itself. Now, Koppel does much the same, giving relatively little credit to his country's deterrent capacity or technological strength but attributing much power to the terrorists.

His solutions include increasing government control of utilities, adding restrictions on individual privacy rights, stockpiling survival supplies following the Mormon example, and saving a rural America where people can live off the grid. All of these are either drastic, impossible or unwarranted.

He laments that electric industry restructuring has resulted in hundreds of players – generators, high voltage transmission companies and local distributors. Formerly, only a few large utilities controlled the industry. He fails to recognize that with many independent participants, it is now more difficult for an opponent to bring down the entire system.

And he ignores completely the local, consumer-owned utilities, serving about a fifth of all customers.

He decries the existence of both state and federal jurisdiction over the electric industry. He fails to recognize that vulnerability exists almost entirely in the transmission grid, which is solely under federal jurisdiction.

Koppel sees the industry as being reluctant to take measures mandated by government to protect the system. Presumably, their profit motive outweighs security concerns.

While there may be some truth to this view, the government has not allowed itself to be pushed around as much as he claims. After the 2003 blackout, federal law was adopted to require, rather than encourage, reliability standards. Admittedly, there is a contest between the federal regulatory commission and the industry watchdog, but it is incorrect to imply nothing is happening.

In making his analysis, Koppel seems happy to rely on anybody who has had a high-ranking title in government or electric utilities. He gives no evidence of having spoken with any hands-on grid operator.

He reports that the vulnerability of the electric system results largely from its dependence on electronic technology, which can be hacked from almost anywhere. In fact, it seems reasonable to ask if it will ever be possible to provide complete security.

The problem, ignored by Koppel, is that like so much human activity on the computer, there is not enough back-up. If the grid is taken down by distant saboteurs, he makes it seem like there is no alternative.

The grid operated for decades without computers. Instead, human beings flipped switches or manually started generators. Operators today are reportedly unable to revert to past practices, because their operating manuals have been trashed.

It would be relatively easy and not very costly to bring back the capacity for manual operation. Managers would have be trained and manuals rewritten. The system would not operate nearly as well as its does today, but the desolate future Koppel forecasts would not happen.

He never mentions what the industry calls “distributed generation” – supplying power from small, local sources that can take blocks of customers off the grid. In that way, even urban customers could enjoy the benefits of independence Koppel found in rural Wyoming.

Without regard to the terrorist threat, distributed generation is on the way. It can help reduce the environmental impact of the traditional power system and produce greater efficiency. And it can make good use of small-scale renewable resources.

As much as his book might seem to make it so, the United States is not a pitiful, weak giant. It is moving in the right direction, though it certainly could move faster and more decisively.

Unlike some candidates, Koppel's concerns seem to be sincere, if somewhat misguided. His big failure is how he investigated the story. He reveals clearly that we should be careful about letting fear prevail over facts.

Friday, January 15, 2016

Pundits must now make room for real voters

This is not the beginning of the end. But it is the end of the beginning.

This paraphrase of a statement by British Prime Minister Winston Churchill during the Second World War seems to fit today's American political scene. The 2016 presidential campaign will soon arrive at the moment when speculation giving way to voting.

Neither the Democratic nor the Republican race is settled. The cascading effects of upcoming caucuses and primaries may create surprising political outcomes. After a final flurry of guessing, we soon arrive at the last minute for pure pundits. That includes me, so here's my last shot.

Hillary Clinton has long been thought to have the Democratic nomination locked up. Many women and men think it is past time for the U.S. to have a woman as president. And there is little argument that she has had a great deal of useful experience as First Lady, U.S. senator and Secretary of State.

Sen. Bernie Sanders, despite the self-imposed burden of having labeled himself a socialist, has made the chase for the nomination more of a contest than was expected. The anti-establishment candidate, he seems genuine, compared with a carefully programmed Clinton.

Former Maryland Gov. Martin O'Malley awaits the moment when Clinton stumbles or Sanders defeats her in a primary A traditional Democratic liberal, he may hope that his party turns to him if it begins to doubt Hillary and fear Bernie.

Among the Republicans, Donald Trump and Ted Cruz now fight for the lead, but just a couple of state results could push others to the top. There are a dozen shades of conservatism, with Ohio Gov. John Kasich and possibly former Florida Gov. Jeb Bush available if the GOP wants some moderation.

Political history suggests that parties pick candidates considered to be at ideological extremes when they have only a long shot at election, usually because they face a strong incumbent. For example, take Republican Barry Goldwater in 1964 and Democrat George McGovern in 1972.

But that is not the case in 2016. Nominating Trump or Sanders would not make sense, if a more moderate candidate could more easily win.

Suppose the GOP moved toward nominating Trump. That could encourage mainstream Republicans to consider voting for the Democratic candidate. But many have an ABC attitude – Anybody But Clinton. Could the general election polls swing to Sanders or, more likely, O'Malley?

Like all of the commentary before voting begins, this is pure speculation. Until now, the campaigns have winnowed out a few candidates, but they have not told us much about the possible final result. That has created a field day for pundits. Polls and debates have revealed little.

The almost daily poll results are of doubtful value. There are real questions about whether pollsters draw good samples of the population and if poll respondents are anything like the people who will participate in caucuses and primaries. And they do not forecast how the results of early races will affect later ones.

For example, can Trump remain a front runner in a field with many fewer candidates? Right now, there is no sign that he appeals to half of all Republicans, much less many Democrats or independents.

The debates have been devalued. There have been too many of them, too early and with too many participants. When the GOP encounters have had good audiences, it was because they were more like athletic contests than a serious discussion of differences among the candidates.

The Democratic debates have been relegated to relative darkness, because their organizers had concluded there was really no contest at all. Like the Republicans, the main objective for participants has been to avoid making mistakes or being topped by an opponent's witticism.

Most political analysis has been questionable. Obviously Trump and, to a lesser extent, Sanders have thrown off the so-called experts. In part, that's because the temper of country is difficult to read.

Are the voters fed up with government itself or do they want a stronger government to limit the major role of the wealthy and financial institutions?

Is there a moderate, non-ideological majority that will vote for candidates willing to compromise so that government can make decisions on meeting public needs?

Both parties have their national conventions in July. They will not be brokered, because there are no brokers, people who can deliver blocks of delegates. And even open conventions are unlikely. Nominees should emerge before then.

The only thing we can know for sure is that with the Iowa caucuses on February 1, the end game begins.

Friday, January 8, 2016

Political rhetoric based on dubious economic beliefs

This is a campaign year, full of political promises. The economy will be an issue, though it’s loaded with common, though dubious, beliefs.

To start, it is true that the economy is better than during the recession. Employment has largely recovered. In Maine, the Portland/South Portland jobless rate is 3.1 percent, an impressive level in the entire country.

But critics say many people who would like to work remain outside of the labor force, having given up trying. If they were added back in, unemployment would be a lot higher. And, when people find work, they may be paid less than before the recession.

These reservations about the recovery are based on the belief that nothing should have changed in the American economy once things picked up again. We have been cheated unless we get back on the same track and enjoy the same kind of growth.

This optimistic thought is wearing thin as time passes. It’s simply not happening. The nature of the economy has changed, demanding people have more skills than ever before. Workers struggle to catch up.

What’s more, attitudes toward work and spending may have changed. Consumers are expected to buy more and be drivers behind the economy, but now some of their money goes to savings not spending, reflecting the long-term worries brought on by the recession.

We are also told that some inflation is good and is needed to promote employment and the economy. In theory, inflation would be evidence of a labor shortage, forcing employers to hire the unemployed and pay more.

But we have little inflation. Why? Mostly because the price of oil has fallen as new supplies have become available. Cheaper oil should help business, but it is surprisingly seen as a negative.
In fact, not all inflation is caused by a short labor supply. Besides, without inflation you can get what amounts to a pay increase whenever you buy gasoline for your car.

Another reason the economy is lagging, we are told, is that China, a major customer in the world market, is having serious problems of its own. The supposedly enormous growth in China’s economy has faltered and can cost American and European companies a major market and investment opportunities.

Blaming China for American economic concerns seems to have replaced worries that China owned so much U.S. debt that it could do serious harm to this country. This belief was never true, and China turned out not even to be the largest American creditor. By the way, the largest holder of American debt is, well, Americans.

After the depression scare in the U.S. economy, to which risky lending and investing contributed, the country was thought to have learned its lesson. Banks would not be allowed to get the point of requiring a government bailout because they were “too big to fail.”

Since then, Congress has begun nibbling at the measures adopted to protect against risky banking, which results from making loans to people who really can’t afford them. Banks and other lender have resumed their practices of not asking for sizeable down payments or real proof of creditworthiness.

As the political year attracts wider interest, voters can expect to hear promises about more government programs from which they will benefit. They will hear little about how these programs will be financed.

Making such promises is not unusual, but is particularly flagrant at a time when many politicians are also promising to cut spending, taxes and the size of government. Government deficits and their contribution to the national debt must end, they say. A combination of cutting waste and leaving more to the individual will achieve their goals.

But the gap between their promises of debt reduction and smaller government is illustrated by the recent tax and spending bill. It was a classic case in making debt-financed gifts to voters.

The extent of political pandering is shown by the annual congressional report listing hundreds of overlapping federal government programs. Without eliminating or reducing the effect of any program, huge savings could be realized by merging many of them.

But members of Congress won’t allow that to happen if any of the efficiency reductions hit their constituents. So promises about cutting the size of government usually means cutting services provided to somebody else.

These beliefs about the economy are either unrealistic hopes or outright myths. Whether the product of ignorance or hype, they will echo in the political promises coming this campaign year.

Making political promises is easier than facing economic reality, which is left to the voters.