Friday, August 17, 2018

Legislators should give less power to executive branch

Supreme Court nominee Brett Kavanaugh says that regulators stray from congressional intent, and courts should no longer defer to their decisions. His opponents answer that strict adherence to the letter of the law would deprive the country of necessary expert interpretation.

Neither of them means exactly what they say.  Kavanaugh wants to cut back on regulators who aggressively interpret laws.  In contrast, courts can interpret broad general laws narrowly, trimming regulatory powers.  His approach results in a reduced role for government, possibly his true intention.

The opposition, composed mostly of Democrats, sees regulators as filling out policies that legislators adopted in broad outlines.  But the risk is that regulators may impose their own views.

Legislators do pass much of their responsibility to the executive branch and to regulators.  Here are three examples.

Last week, the U.S. announced that it was required by a 1991 law to impose sanctions on Russia for having used a deadly chemical to try to kill it owns citizens living in Britain.

After the recession, Congress told regulators to prevent banks from risking customers’ money in making investments.  But the regulatory process dragged on for years, allowing bank lobbyists to press for watering down the rules.  The lobbying worked.  Congress did nothing. 

Gov. LePage refused to allow bonds, approved by voters, to be issued.

These cases show legislators either required action as with chemical weapons or allowed 
executives or regulators considerable power.

The law on poisonous chemicals provides that the government must impose sanctions on a country when there’s proof that it used them.  No further judgment is allowed, though the president can waive some penalties.

The law on banks, passed by Democrats, gave regulators weak instructions and no time limits.  They caved to the banks and then a GOP Congress took no remedial action.

Maine voters have authorized public debt proposed by the Legislature.  The governor has administrative responsibility to manage the process. Unlike his predecessors, LePage has extended this role so he can veto the voters and block the borrowing.   The law gave him too much wiggle room.

Legislators often paint with a broad brush.  They expect regulators and judges to fill in the details that are necessary before their intentions can be put into operation.

Their excuse is that some matters are so complicated that the details have to be worked out by experts.  The result is that they allow unelected officials to make the rules that have to be followed.   Legislators may check to see that the rules follow the law, but often, especially in Washington, they don’t.

Congress also cedes its powers to the president.  It controls American trade policy and must approve tariffs on imports.  But it has taken to allowing the president broad tariff-setting authority in the belief that the chief executive will promote the interests of American consumers and exporters.

It allows the president this authority so it can avoid tough decisions that are sure to displease some American interests.  Avoiding the burden of decision is both more efficient and less likely to lead to members’ defeat at the ballot box.  It is not leadership.

This broad grant of authority to the president has now produced big problems. Trump sees tariffs as an instrument of foreign policy, a sort of war without cannons, rather than as a key element of economic policy.  To him, winning means having a favorable trade balance with another country.

“Tariffs are the greatest,” he says, because he doesn’t need approval from anybody else to raise them.  Using tariffs as an instrument of war, Trump pays little attention to their economic effect on Americans or to retaliation by other countries. 

Legislators could drop their broad brush and start paying closer attention to the details of what they are enacting.  Or else, they need to adopt policies that can be applied exactly as adopted without leaving the details to administrators who are invisible to the public and difficult to hold responsible.

They also should refrain from ceding their legislative powers to the executive.  They can keep more decisions for themselves and describe in greater detail the limits on the scope of executive powers they create.  Laws should be more specific in describing exactly legislative intent and allow fewer exceptions.

Then, the powers of the president to set tariffs would be sharply reduced.  The ability of the Maine governor to place his will above a decision of the voters would be banned. 

The era of pious hopes about the good and fair judgment of executive officials has ended.  Legislatures should legislate.

Friday, August 10, 2018

Will Trumpism, emerging as new party, kill traditional GOP?

“Where you stand depends on where you sit.”

Rufus Miles, a federal official, created this contribution to American political folklore.  Because each party’s members in the House and Senate sit together, they usually vote together.  He suggested they should be mixed together to promote compromise.

Of course, his proposal was not adopted.  But his point is correct.  Party loyalty runs strong in both houses of Congress, making compromise more difficult.

The problem has become more complicated since the 2016 elections.  President Trump, nominally a Republican, attacks Democrats, reducing the chances of bipartisan compromise. But he doesn’t spare Republicans, leading many of them to quit Congress.

Within the GOP, the extreme right wing of the party, loyal to Trump, battles traditional conservative politicians.  While the Democrats are used to having a “big tent” to accommodate a variety of views, the Republicans seem unable to find a way to be similarly inclusive.

House Speaker Paul Ryan allows the Trump backers to dominate the Republicans.  Trump bears the party label and draws support from a majority of Republicans across the country.  At least some of his policies are popular with most GOP supporters. 

But his trade policy, attitude toward minorities, position on abortion and soft spot for Russian President Putin, has led a significant share of the congressional Republicans to oppose him while avoiding outright conflict.

The result is that some suggest the complicated American political quagmire can only be ended by a new political party, composed of moderates from both parties.  Part of this political dream is that Sen. Susan Collins will become a leader of the new party.  Collins would have to leave the GOP, because it has clearly left her. 

But there is no need to create a new third party.  It already exists.

First, there are the Democrats, the country’s oldest party.  Over its history it has been able to serve as political home to office holders ranging from racists to militant minority leaders. 

Pundits who worry that the party’s split between standard liberals and Democratic Socialists will doom it at the ballot box miss the fact that the party could accept both at the same time.  That’s its tradition.

Then, there are the traditional or moderate Republicans.  They support small government and less government regulation of business.  But they also would provide help to the less fortunate and recognize climate change.  They focus relatively little on wedge issues like guns, abortion and same sex marriage.

Finally, there is the new party, which might be called the Trumpism, because its members are largely defined by their allegiance to President Trump.  He rejects policies that have been built by compromise between Republicans and Democrats.  He also seeks to be a more authoritarian chief executive.

The November elections are expected to reveal the relative strength of the three parties.  Will the Democrats sweep Congress and the Maine Legislature in reaction to Trump and Gov. LePage, his state-level look-alike, and their Republicans loyalists?  Will Trumpism prevail?

According to polling, the Democrats could pick up the many seats they need to control the U.S. House and might hold on to enough to threaten Republican control of the Senate.

Or will the Trump and LePage approach be confirmed by voters?  In Maine, now reasonably evenly divided on Trump, would they elect GOP candidates for governor and the Second District member of Congress?

Because Collins and her moderate Republican colleagues really don’t want either Democratic control or Trumpism confirmed, this may be just the right moment to get organized, publish their own manifesto and endorse the candidates they can support, just as Trump backs his candidates.

If moderate Republicans remain on the sidelines, they risk being eliminated.  Look at the Maine GOP, previously led by people who focused on the economy and the environment.  They respected referendum results and paid the state’s bills.

In this year’s Republican primary for governor, all four candidates were LePage backers.  Not one of them was a natural ally of Susan Collins. Where have all the moderate Republicans gone?

Today’s three parties could soon return to the traditional two, but not the traditional twosome.
If the Democrats sweep in November or come close to it, the country and the state may end up with two parties,  a “big tent” Democratic party and an angry, right-wing Trumpism party, focused on continuing to repeal the progress produced by compromise.

Friday, August 3, 2018

Kavanaugh court confirmation battle based on shaky assumptions

The president proposed a new justice for the Supreme Court, and political war broke out. 

Most Republicans back him, believing he will strengthen a conservative majority.  Most Democrats oppose him, because they share that belief.  They worry that he would vote to reverse Roe v. Wade, the decision confirming the legality of abortion.

The nomination has produced conventional wisdom about the Court that is either doubtful or just plain wrong.  Reality might turn out to be different from today’s hopes and fears.

One claim is likely to be correct.  If Brett Kavanaugh, the nominee, joins the Court, he might remain on it for decades.  Justices are appointed for life, and a vast majority has served at least 10 years.  Right now, the longest serving justice is Clarence Thomas, who has been on the Court for 27 years.

Would Kavanaugh, a conservative, replace a swing justice?  Not really. There were 13 conservative-liberal votes by 5-4 in the latest Court term.  Retiring Justice Anthony Kennedy voted with the conservatives every time.  Not much “swing.” People who imagine a switch focus on his favorable view of the 1973 abortion decision.

Two conservatives, Chief Justice Roberts and newly arrived Justice Gorsuch, each provided a swing vote to the liberal side in the most recent Court year.  They filled the role mistakenly thought to belong to Kennedy.

There are other reasons assumptions about the Court may be wrong.  For example, justices’ views change over time. Two Republican appointees, Chief Justice Earl Warren and Justice David Souter, surprised the presidents that appointed them by their liberalism once on the bench.  Souter also surprised everybody when he retired early.

Does the Court always split on conservative-liberal lines?  On many social issues and hot-button political issues, it does.  The media pays a lot of attention to the political affiliation of the justices.  The implication is that that the bitter partisan split in Congress has spilled over into the courts. 

But most of its decisions have little to do with ideology and a lot to do with clarifying the law.  Of the Court’s 76 decisions this past term, 35 were unanimous.

These factors yield the conclusion that the claim that Kavanaugh would bring major change to the Court’s conservative-liberal balance could turn out to be less obvious than we suppose.
Whatever happens, there’s no doubt that Kavanaugh can be expected to serve “for generations.”  

Based on their expectation about him, conservatives are comfortable and liberals despair. 
In fact, something can and has been done in American history to prevent a long-term, locked-in ideology.  It begins with the fact that the size of the Court is not set by the Constitution, allowing 
Congress to make changes at will.

After Democrat Franklin D. Roosevelt became president during the Depression, he faced a conservative Court whose majority opposed many of his key New Deal economic recovery policies.  Frustrated, he proposed “packing” the nine-member Court by adding justices sharing his views.

Roosevelt won re-election by a landslide, carrying all states except Maine and Vermont.  Congress overwhelmingly was Democratic.  After witnessing Roosevelt’s big electoral win, some justices dropped their opposition to his proposals.  It was a case of “a switch in time saves nine.” 

While Roosevelt’s “packing” plan may not enjoy a favorable place in history, it worked.  What’s more, the move had been previously put into effect, not merely proposed.

During the Civil War, Lincoln had only a slim majority on the Court.  Congress enlarged the Court, setting the number of its seats equal to the number of federal courts of appeal, the regional courts just below the top court.  Then, it created a new appeals court.

The Lincoln Court had ten justices as a result of this “packing” the Court.  But Congress did not want to give any appointments to Andrew Johnson, his successor, and reduced the Court to seven justices. After Johnson left office, Congress restored the Court to nine.

When the Democrats control the federal government, as they surely will sometime in Kavanaugh’s long tenure, they could expand the Court and change the balance.  With a justice for each court of appeals, there would now be 13.

In 2016, the Senate Republican majority refused even to talk with President Obama’s final nominee, a moderate, much less hold a vote on his nomination. That unprecedented action was easily as extreme as court “packing.”  It makes adding seats seem less radical.

Supreme Court nominees once were routinely confirmed, giving the president full discretion.  That practice is almost gone.  It has been replaced by gamesmanship and mistaken conventional wisdom. 

Friday, July 27, 2018

America’s democratic experiment undermined by one-man rule

It all started in Philadelphia.  In the hot summer of 1787, a small group of men did something never tried before.

They drafted a plan for a new political system, a popular government to replace the British system of royal rule. The 39 state delegates planned that the people would rule their large country through their elected representatives – a chief executive and a legislature.

To prevent any president or Congress from assuming royal powers, the Framers of the Constitution set up a system of checks and balances and required frequent elections.  The result is the American republic. 

Protection of the people’s sovereign power relied on respecting the values ensuring that government power would be exercised within constitutional limits and that individual rights would have to be respected by government.  This became the concept called “liberal democracy.”

The American idea was so new and untested that the system was labeled an “experiment.”  Its purpose was to find out if one-man rule could be replaced by representative democracy with power exercised by federal and state governments, but with the people having the final say.

The Framers intentionally designed an inefficient system, making hasty decisions and one-man rule more difficult.  That inefficiency gave people the chance to exercise more careful control.  This American system would replace the efficiency of a king who made all the decisions.

Liberal democracy worked in the U.S., though not perfectly.  Still, its example led to its adoption in countries as diverse as Poland and Australia.  It took hold throughout Europe after the failure of Hitler’s dictatorial rule in Nazi Germany and the fall of Communism.  Any surviving kings or queens became mere figureheads.

But the American idea has recently come under serious challenge.  Its intentional inefficiency, meant to protect the people, has failed to produce results that some, perhaps only a minority of the people, want.  They are willing to accept some one-man rule to get what they want.

Tired of the cumbersome operation of representative democracy, some people demand change.  And change can mean accepting more authoritarian rule.

Take Hungary.  After the fall of Communism there, the country installed a democratic system.  But when Victor Orban was elected to be head of the government, he openly declared his country an “illiberal state.”   The people would vote, but would give up many of their rights to him.

Much the same has happened in Turkey, Poland, Venezuela and the Philippines.  Italy and Austria have begun to lean in that direction.  The tide of history seems to be running against the American experiment.  Popular control is giving way to elected leaders who impose their personal rule.

Is this turn toward the “illiberal state” taking place in America itself?  There’s little doubt that some Americans want change to restore a drastically limited government.  Or they may simply be fed up with the intentional inefficiency of democracy.  Government accomplishes little in their view.  A strong president can act.

President Trump, like the leaders of illiberal countries, appears to believe that his personal views should rule.  His belief may be based less on a well-developed political agenda and more on his confidence in his own ability to make the best deals and decisions through his claimed superior skills and based on his surprising electoral mandate.

While he is a Republican and members of the loyal GOP support him, he is not advancing traditional policies of his party, like free trade or opposition to Russia.  Instead, his personal policy views, often changing, dominate.

Experienced career officials are written off as being part of the “deep state.” Major federal government posts are left unfilled.  Agency heads are unimportant when the White House, under direct presidential control, is meant to be all the government the country needs.

Even in a small like Maine, the same move away from a democratic republic has been taking place.  The Maine system of government is similar to the federal system, but the people themselves may also pass laws by their direct vote.  This direct democracy is a hallmark of popular control.

But Gov. LePage forces his personal views on public issues to prevail over the vote of the people, who are supposed have the final word.  Mainers voted for Medicaid expansion, but he gained embarrassing national attention for the state when he said he’d go to jail rather than allow it to happen.

Is the American experiment losing out to one-man rule?  The answer may be far more important to the future of the U.S. and other democracies than the resolution of today’s policy battles.