Voters take control; the referendum wave

 

Gordon L. Weil

Democracy is breaking out all across the country.

Not representative democracy, the hallmark of the Republic, but the original version– direct democracy.  That’s when people themselves decide, legislating in place of their elected representatives.  In Maine and other New England states, many local governments use the Town Meeting, the people’s legislature.  That kind of popular control is becoming, well, more popular.

In Arizona a few years ago, voters grew unhappy with legislatively drawn election districts.  Through a referendum, they adopted an independent districting commission. The legislature sued the commission, claiming that it alone had power over districting.  The U.S. Supreme Court confirmed that the people are the ultimate legislature, and the commission went ahead.

Decision-making by the people had taken off early last century, and the people now adopt laws in 26 states.  The movement grew as populism placed greater trust in average voters than the U.S. Constitution’s drafters had thought wise.  A turning point came when the Constitution was amended to move U.S. Senate elections from state legislatures to the voters.

Early populism favoring government by the people grew under progressive Republican leadership in the Midwest.  That movement also promoted public control of electric power, which helps explain why Nebraska, a conservative state, is dominated by consumer-owned electric utilities and has no for-profit power companies.

In 1908, Maine became the first state east of the Mississippi to adopt popular legislative action.  Voters must approve amendments to the state constitution, as in 48 other states, but, unlike some other states, they cannot propose amendments.  They may also decide by referendum on proposed laws sent to them by state government. 

Maine also uses “initiative,” allowing voters to propose and vote on laws without state government involvement.  This includes the “People’s Veto,” allowing voters to overturn legislative acts.   However, the Legislature can amend initiatives adopted by voters.

Four of this year’s ballot items are initiatives, with three relating to Pine Tree Power, the proposed consumer-owned, non-profit utility.  It was petitioned onto the ballot after Gov. Janet Mills vetoed the referendum proposal of the Legislature. 

Question 3 asks if voters will approve Pine Tree Power replacing CMP and Versant Power as their wires company.

Question 1 asks if voters want to approve major loans by certain entities. It is meant to require a later vote on Pine Tree Power’s borrowing to acquire the utility property, giving the two ousted utilities a second chance to block the new company.

Question 2 asks if voters want to bar foreign government-backed entities from financing future Maine elections.  CMP is owned by a Spanish company and Versant is owned by a Canadian utility. Their role could arise in future votes on new power lines and the loan approval, if it is required.

Question 4, the fourth initiative, would require automobile manufacturers to standardize repair diagnostics.  They oppose it.  Its proponents claim such a law would help independent shops to service new vehicles.

There are four referendums to amend the state constitution.

Question 5 would extend the period for judicial review of written petitions by an estimated 40 days.

Question 6 would require the full text of the state constitution to be printed, not now the case.  Omitted are the state’s treaty obligations to American Indians, inherited from Massachusetts upon Maine becoming a state.

Question 7 would remove the requirement that people circulating election petitions must be Maine voters, bringing Maine into compliance with federal court rulings.

Question 8 would eliminate the current ban on voting by people under guardianship for reasons of mental illness.

If political divisiveness continues to plague the federal government, more key decision-making could be left to the states.  With many Republican red states and Democratic blue states, political divisions could align with state boundaries.

The influence of money in politics does not disappear when referendums are used. As Mainers are experiencing in the campaign about Pine Tree Power, the two investor-owned utilities are far outspending a volunteer band of citizens in an effort to defeat the proposed non-profit utility.

In referendums, unlimited spending can reveal the power of vested economic interests.  That’s less true for abortion, a social issue where politics not profit may dominate.

Last year, the Supreme Court reversed itself on the federal right to abortion, and said the issue was up to the states.  Rather than let either ancient laws or conservative legislatures decide, people resorted to referendums.  In five of six states that voted, popular votes have protected the abortion right.  More such votes are slated.

If political power shifts somewhat to the states, direct democracy there may grow, especially when statewide popular votes could overrule artificial legislative majorities made possible by partisan gerrymandering.   The abortion votes may also encourage the increased use of referendums on other issues in many states.

We could be turning a constitutional corner.

Climate crisis needs all solutions, including nuclear

 

Gordon L. Weil

A U.S. Open Tennis Tournament match was suspended so a climate protester, who had glued his bare feet to the ground, could be removed.

Though his means of expression was extreme, his protest was valid.  The U.N. group tracking progress in halting global warming issued its report almost the same day.  The world is not getting there.

Most countries have set the net emissions goal for greenhouse gasses (GHG) at zero by the middle of the century – just 27 years from now.  With massive understatement, the report says that achieving that “goal requires broad and rapid changes in existing practices.” 

Can anyone seriously believe the net zero goal for GHG – mainly resulting from carbon-producing fossil fuels – will be achieved by then?  The U.S. struggles to cut emissions and begins to try taking carbon out of the air.  Meanwhile China, the next largest producer, keeps adding coal-fired power plants.

Energy to fuel cars, heat homes and run offices and factories will come largely from electricity.  Electric power will have to come from wind, solar and even hydro to make a serious dent in the use of fossil fuels.  Sustained efforts at efficiency, which means using less, are essential but unlikely to cover the gap left by renewables.

There are good reasons for restrained enthusiasm about renewables.  They depend on the weather, which is far from being under human control and perhaps shouldn’t be.  They also are not always available just at the time they’re needed.  Continuous power supply from renewables will require electricity storage that is not yet fully developed.

Ending global warming is a matter of economics.  Oil companies talk a better game about renewables than they play.   Renewables may produce long-term savings and new jobs, but the transition may raise costs and reduce jobs.  And a new world economy increases demand for energy. 

Renewables won’t be enough.  Focusing heavily on them avoids talking about the elephant in the room.  It does not produce carbon. Its technology is available now.  It reduces dependence on questionable energy suppliers like Russia and Saudi Arabia.  It is nuclear power.

Apprehension about nuclear power has two main causes.  The first is the destructive power of the atom revealed by the two bombs that ended World War II.  The second is the demonstrated failure of some power producers to understand how or where to build a nuclear power plant, which caused accidents or even disasters.  Think Chernobyl.

The fear has been so deep that some people want to dismantle nuclear power.  Before it was closed, the Maine Yankee nuclear power plant faced no less than three referendums and prevailed in all.  For some politicians, nuclear power has become an automatic no-no.  The U.N. report, aware of political sensitivities, never uses the word “nuclear.”

Government and industry are learning that building a nuclear generating station is not the same as a traditional oil or coal unit.  In New England, that lesson was learned at the Seabrook plant in New Hampshire.  A unit was put into service only after an experienced nuclear expert replaced the local utility managers.

Industry hasn’t been helping enough.  Discharges of water from the Japanese Fukushima plant may be as harmless as claimed, but they have set back the use of nuclear power.  Many people will not trust a company that hosted a nuclear disaster.  The plant’s name should have been allowed to fade into relative obscurity.  There had to be a better way, even if it cost more.

Concerns are met by government regulators, but the process is slow.  Industry may resist and neighbors may worry.  A more uniform regulatory review process could help.  Federal regulators are developing it, but it remains to be tested in practice. 

The US, UK, Japan and other countries are working to aid the development of nuclear fusion power plants.  Fusion reactors produce little radioactive waste and require small amounts of fuel. U.S. federal aid goes to commercial developers, who seem to be the most advanced.

Even with efficiency, renewables and now nuclear in the works, much needs to be done. New generators and lines must be built. Auto charging points must work faster and be more available.  Storage, from car batteries to wind farms or hydro reserves, must be created. Like nuclear power, they can face local opposition and impose new costs – the price of reversing global warming.

Obviously, the world cannot cling to fossil fuels or bet on a single solution to the climate crisis.   There once was a song, “Wishing Will Make It So.”  Nice kids’ song, but bad public policy.

The problem is that human civilization is now being transformed by climate change. All available solutions must be used.  Renewables, efficiency, and nuclear all impose costs.  So does doing nothing.

 

 

China's claims, presidential race, Maine campaign -- all use fake numbers

Americans have an almost religious faith in numbers.  When people believe in statistics, that helps politicians.

People keep their faith despite the truth of that old saying, “Figures don’t lie, but liars figure.”

Nowhere is that more accurate than in political campaigns.  It’s evident now both in Maine and on the national and world scene.

In the campaign waged by for-profit CMP and Versant against the proposed non-profit Pine Tree Power, the two current companies say that it will take $13.5 billion to compensate them for selling their property.  That sounds daunting enough to overwhelm any other issues.

The simple answer is that the exact cost cannot now be known.  As in virtually all cases of this kind, the two sides don’t agree on a price and a court decides.  The PTP proposal even recognizes that a Maine court will decide.

Beyond that, the inflated amount results from one of the basic reasons why a lot of numbers and polls are much less reliable than they may seem.  They are based on the assumptions used.  For example, the two utilities paid for the study that yields the high number, so it’s expectable that its assumptions would help them.

In addition, there is a recent utility acquisition in Maine that could influence a court.  In 2020, Versant bought its utility from Emera.  It paid the audited value of the property plus a premium of about 21 percent.  If that same approach were used in the PTP takeover, the cost would be less than $7.5 billion.

Finally, the customers of those two utilities now pay for their poles and wires and they would continue to be responsible.  They are now paying off about $5.4 billion, so that would not be a new cost.  Somewhere in the heated and costly campaign, these facts, undermining the $13.5 billion claim, get lost.

The numbers in the presidential match-up between Biden and Trump are just as dubious. The average of major national polls has them even. The media pushes the story of a dead heat between the two seeking another four years in the White House.

There are a lot of problems with this conclusion, even if it seems to be based on the poll numbers.  The most obvious is the failure to take account of the 11 percent who did not pick either candidate.  Where will they go or will they stay home?  What about the people who refused to answer?  They are certainly enough to swing a national election.

These numbers might have some small interest if there were a national presidential election decided by the popular vote.  But there isn’t.  There are 51 separate elections (the states and DC).  To have a better view of who’s leading would require knowing about the presidential race in each state.  But polls simply do not yet exist for many states.

Timing also matters a lot.  The polls, limited as they are, are conducted 14 months before the elections.  The candidates have not yet been selected and campaign developments can affect the final result.  Court cases and potential third party participants will affect the results just as will the size of the turnout.

In short, the numbers that supposedly inform people of the likely outcome of a presidential election offer little useful guidance. They may even be biased by the way questions are asked or the voters choose to answer.  Voter beware.

Finagling the numbers doesn’t stop at the border.  China wants to show the world that the Communist Party’s version of economics is superior to the U.S. free enterprise system.  That’s a key part of its effort to attract the developing countries, turning the Southern Hemisphere into China’s sphere of influence.

According to its numbers, its economic growth looked unbelievably good. But don’t believe China’s economic data, because they have been lying.  When it became clear that its economy did not match its claims, the Director of the National Statistics Bureau there admitted that, “fraud and deception happen from time to time, in violation of statistics laws and regulations.”

Number crunchers have been recalculating when China might pass the U.S. as the world’s largest economy.  Because of its huge population and proclaimed growth, it looked like it could happen this decade. In fact, it may never happen.

The reasons are both its slower economic growth and a declining population caused by limiting family sizes plus an aging population.  Lies about the size of the Chinese population are now being revealed.

The message? Be skeptical of other people’s numbers. The real effect on you of electric rates or presidential elections or the rivalry with China matter more than the often phony numbers designed to impress or confuse you. Number One is still the most important number. 

Supreme Court has too much power

Gordon L. Weil

The U.S. Supreme Court will come back in a couple of weeks, and it will again be making politically charged decisions on whether laws passed by Congress are allowed by the Constitution. 

Such decisions are among the most controversial it makes.   They give the Court a power greater than Congress, which makes the laws.  This is the power of “judicial review.”  When the Court’s decisions appear excessively partisan, it looks more legislative than judicial.  Anger with it may run high, leading to proposals to “pack” it by adding more justices.  

As the U.S. Supreme Court gets under way, the world is already being treated to an open national battle over judicial review. Crowds of demonstrators have taken to the streets of Israel.  This week, its Supreme Court began hearings on a legislative attempt to reduce its review powers.

The Israeli court has assumed the responsibility for making final judgments about whether laws are constitutional, just as has the U.S. Supreme Court.  In 1803, the justices here decided that they alone could say “just what the law is.”  That way, their dying political party could shape the law even after congressional control had gone to the opposition.

In Israel, the government, under pressure from some parties that provide it enough support to stay in power, wants to give the Israeli legislature – the Knesset – the last word on what the laws are.  Israel has no constitution, and its Supreme Court has protected its “basic laws,” deciding if new laws meet a test of “reasonableness.”

The government’s logic is that the Knesset, an elected body, should determine the law and not a court composed of appointed judges, some of whom have been on the bench far longer than the current government.  After all, the legislature reflects the people’s will, it claims, not the judges.

Even if that logic may seem sensible, it infuriates a lot of Israelis.  Many Americans might agree.  They worry that democracy itself is likely to be threatened when the court’s moderating hand is taken off constitutional decisions.  Of course, they may simply prefer a court they see as a partisan ally.

Foreign governments usually try to stay out of the internal affairs of other nations, but the U.S. has expressed concern about changes in Israel that could lead to complete control of the law by a bare majority of the 120-member Knesset.  It would also pick the judges.

Yet Israel’s proposed form of judicial review is not unique.  It is called “parliamentary sovereignty.”  It exists in several democratic countries, including the United Kingdom.  With no written constitution as a reference, the U.K. Supreme Court usually rules that laws passed by Parliament must be enforced and may overrule earlier laws or court decisions.

The U.S. system is based on the Court alone deciding what the written Constitution means and if Congress has acted in line with that meaning.  The last word comes from nine appointed justices and not from the legislators who make the laws. 

The U.S. Supreme Court can be as politically slanted as the Israeli courts, because its majority may be named and approved by members of a single party even if congressional control has later shifted to the other party.  That’s how today’s Republican-appointed Court majority overturns laws earlier passed by Democrats, even if once approved by the Court.

When the Court reverses its views thanks to the appointment of new justices, it looks like a partisan legislative body rather than a neutral and nonpartisan panel operating above the political battles.  As it increasingly appears to be an uncontrolled political player, it loses popular respect.

A possible solution could be to couple judicial review with oversight by the lawmakers in Congress.  Without eliminating judicial review or undermining confidence in the Court, Congress has the ability to modify review, strengthening the checks and balances that are supposed to exist among branches of government.

The Supreme Court’s constitutional decisions could have to face congressional review.  Congress would vote on whether to overrule the Court.  If it did, the Court’s decision would be suspended and a second vote would be required following the next congressional election. The possibility of a presidential veto might make necessary a veto-proof, two-thirds majority vote. 

This procedure would introduce legislative involvement, but it would go less far than the British system.  It might bring the voters themselves into the process of deciding if a law is constitutional

Even if Court decisions were not reversed, the process would focus attention on it. The Court would become more accountable, and judicial partisanship might be reduced.

The time has come to begin talking about how unchecked judicial review undermines checks and balances.  The Court’s role should be part of the political debate.  Otherwise, unlimited political power will keep moving toward a Court majority of five unelected justices.

  

Maui’s utility crisis – it could spread

 

Gordon L. Weil

Maui matters. It matters to Maine and probably many other places.

That’s because Hawaiian Electric, the utility that serves the island, has become the focus of concerns that it was a major cause of the fires that disastrously swept a part of that Pacific island. The utility’s downed wires probably caused extensive fires that were not doused quickly enough.

Electricity customers almost everywhere get periodic warnings not to touch wires that are off the poles, usually as the result of a storm. Wires carry electricity from power generators to customers for use in heating, machinery, lighting and many other devices. If they touch the ground, they may remain live. If a person touches a live wire, it can cause injury or death.

Anything an energized line touches receives electricity. In Maui, lines were downed and set off uncontrolled fires on the ground. The fires took what may prove to be hundreds of lives. Critics claim it could have cut off power sooner.

One reason why the threat of downed lines exists is because most electric wires are thin and bare and not protected by an insulating covering. That means that if they come under the weight of a tree limb or fallen tree, they can break more easily than would a more substantial, insulated wire.

Where lines are relatively often broken or grounded, power to customers is interrupted. These “outages” lead to a loss of reliability.

Like Maui, Maine may be unusually vulnerable. More of its surface is forested than in any other state. Utilities claim that trees are the reason why Maine has among the highest rate of outages of all states. Central Maine Power and Versant are among the least reliable electric utilities in the country.

But there’s a lot more to this story. There have always been trees in Maine, and the utilities should have considerable experience with them. Central Maine Power has existed since 1910, 113 years ago. Couldn’t it have learned to deal with trees at some time?

The Maine Public Utilities Commission and similar regulators in other states have belatedly come to require “vegetation management,” reducing outages. The rates utilities are authorized to collect include the costs of vegetation management. If a utility scrimps on tree trimming, it can keep for itself as profit some of that allowed income.

That may have happened on Maui and in other utilities across the country. It can be detected in states where there are both high outage rates and lots of trees.

Unless regulators keep a sharp eye on utility tree trimming, outages can be excessive, making the system unreliable. A few years ago in Maine, the PUC finally required CMP to adopt a program of vegetation management to keep trees away from the lines and increase reliability. In other states, other utilities were doing the same.

“We decided that we needed to get very serious about doing tree trim along every mile, along every span of our distribution system, so we started that in 2008 and gradually over the years – since the program started –we’ve been seeing more and more of a reduction in outages caused by trees,” said CMP.

CMP took credit for what it was finally required to do, only 98 years after the utility was founded. And still its outage rates are among the highest.

There’s another solution that yields maintenance savings: protect the wires. Wires can be insulated and supported by metal cable, avoiding expensive underground lines. But that investment may be less profitable for the utility than building major transmission lines.

Maine, only the 39th state in size, is supposedly too large to use protected wires. But about half of the state’s territory is unorganized with virtually no utility electric service at all.

Non-profit utilities have no incentive to skip tree trimming to boost their revenues. Admittedly, Nebraska has few trees compared with Maine, but it’s also the only state with no for-profit utilities. It is ranked as the most reliable state for electric service just about every year.

The issue may be less about the trees than about the utility. For example, Louisiana joins Maine at the bottom on reliability and it has above average tree coverage. It is dominated by a leading for-profit utility. In contrast, Maine’s non-profit utilities are more reliable than the state’s two for-profits.

A disaster such as occurred in Maui can happen elsewhere. Look at California, where PG&E’s lines have caused major forest fires. The risk exists in Maine and almost any other state.

The answer is either regulators getting much tougher on for-profit utilities and requiring them to install protected wire or giving the responsibility to non-profit utility management, accountable only to its customers for their safety and reliable power.

Donald Trump: the ultimate wedge issue

Gordon L. Weil

Us versus them.

That may be the core of American politics these days.  It often becomes a “wedge” issue.  That’s a single, polarizing cause, usually focusing on social concerns, which gets translated into a political war.

Candidates make a wedge issue the focus of their campaigns.  If they can gain support on the strength of their position on that single issue, they expect their voters to give them free scope to pursue most other policies when in office.

Wedge issues have been around for more than a half-century.  The idea is thought to have been first applied effectively by Kevin Phillips, an advisor to Richard Nixon in his 1968 presidential campaign.  He wanted Republicans to encourage Southern Blacks to become Democrats.  Then, he said, “the Negrophobe whites will quit the Democrats and become Republicans.”

Under Democrats, led by President Lyndon Johnson, civil rights and voting rights laws had been passed in the 1960s.  That would drive many Southern Democrats to the GOP, which had opposed those new laws. 

Bitterly, Johnson said that if you could convince a white man that he was better than any Black man, “he won’t notice you’re picking his pocket. Hell, give him somebody to look down on and he’ll empty his pockets for you.”  Johnson had explained the essence of the first effective wedge issue.

Though the Democrats sometimes try to make wealthy people their polarizing target, the Republicans are the party of the wedge issue.  This was not a surprising move for the GOP,   concerned about possibly losing support.  Such issues might peel away Democrats, as in the South, and could inspire potential supporters who had been on the political sidelines.

While race would remain a divisive issue, two major, new wedge issues arose – abortion and guns. 

As laws easing access to abortion were adopted, supporters of traditional limitations organized.  The battle lines became sharper after the U.S. Supreme Court’s 1973 Roe v. Wade decision recognized a federal abortion right.

At the same time, lines were hardening on gun control.  In 1968, the Gun Control Act was passed with the support of the National Rifle Association, an organization then focused on recreational firearms use.  By 1977, the NRA was taken over by activists who opposed any limits on gun ownership.

On both issues, opposition was focused either on the Democrats or on a liberal Supreme Court.  It was natural for the Republicans to align their party with the opponents of increased abortion access or gun control, especially as they became more politically active and focused solely on a single issue.

Their support gave successful Republicans the backing they needed for other policies. President Nixon could warm up to Communist China with little controversy, while relying on the support of conservative voters who cared almost exclusively about race, guns or abortions.

Wedge issue constituencies could be added to one another. Catering to gun control opponents did not conflict with also seeking support from abortion foes.  It became increasingly clear that the GOP should try to collect special interest constituencies into a coalition to offset any voter losses to the appeal of Democratic economic and social polities.

It has made progress using wedge issues to block the treatment of transgendered people and ban books in school libraries. But, in attempting to find new wedge issues, the GOP does not always succeed.  Its efforts to outlaw burning the American flag or same-sex marriage failed.  Its war on “woke,” a sentiment favoring repair of past legal injustice, is still fought but may be fading. 

Quite possibly, the greatest wedge issue is not a policy but a person.  The Republican Party’s support for Donald Trump reflects both the emotional appeal of an issue like gun control and the political realism of cultivating support to form a coalition that can win elections.

Trump’s appeal seems to withstand the effects from his bravado about groping women to his facing four criminal indictments and a host of other legal complaints.  His support for wedge issues has made him their embodiment.  Trump retains deep-seated political immunity resulting from habitual and pragmatic loyalty among a majority of Republicans.

The exploitation of Trump’s wedge-issue status could make sense.  Couple it with the ability of the GOP’s minority of popular voters to control a majority of electoral votes and its efforts to suppress access to the polls for likely Democratic voters, and Republican hopes to control the federal government may be realistic.

Ardent Democrats seem to believe that the American people will come to their senses and halt this divisive push.  They may be encouraged by support for abortion rights shown in conservative states after the Supreme Court nullified Roe v. Wade. 

The Democrats may need to strengthen their own links to wedge issue groups, especially among women, and get out their vote. 

Power corrupts: the coming of one-person rule in America

 

Gordon L. Weil

Political chatter focuses these days on whether we risk trading democracy for authoritarian rule.   But the record shows we are well past that.

These days, many critical government decisions are made by a single person.  In a democracy, such a person is too powerful. Not that a single person controls our entire government, but one-person rule keeps growing in all three branches of government.  Lord Acton, a British leader, once concluded: “Power corrupts.”

The prime example right now is U.S. Sen. Tommy Tuberville, an Alabama Republican.  He blocks the appointments of all top Armed Forces leaders, trying to force the Defense Department to change its abortion policy.  He places a “hold” on nominations, abusing the power of delay accorded to each senator. 

When the people elect senators, they may think that all are equal. After all, each has the same vote. But the senators willingly turn their power over to a single person.  Because each of them may someday want to exercise the same power, they willingly allow Tuberville excessive clout. Who cares that this naked exercise of power endangers the country?

More broadly, the Senate Majority Leader, a single person, controls the Senate agenda and which appointments can be decided.  When serving as the GOP majority boss, Kentucky Sen. Mitch McConnell denied a presidential Supreme Court appointee even the slightest consideration.    The nomination would have failed anyway if it came to a vote, but individual senators would have been accountable.

Why shouldn’t all senators adopt their own agenda?  Why not do away with the “hold”?  Why not require confirmation votes?

When the Constitution was written, the Framers worried about giving the president the powers of a king.  Some even suggested a committee should run the executive branch.  Believing that George Washington, sure to be the first president, would set the tone for executive restraint, they placed few limits on presidential power.

The presidential veto reflected almost the same independent power of the British king with only the high hurdle of a two-thirds override by each house of Congress.  That made the president the equal of Congress in the legislative process.  Merely threatening a veto gives the president power to make the laws. 

Congress could force vetoes to be issued rather than yielding to threats.  That way, decisions would be made in the open and reduce the sense of government by backroom deals.  The president would be more accountable.

Facing more complex issues, Congress has transferred more of its control to the executive branch.  Presidents can spend vast sums and issue governmental rules.  Congress could recover some of its responsibilities by spending more time on policy and less on campaign fund-raising.

Presidents should also refrain from acting like judges. They take on the authority to sign new laws, while saying they will not enforce parts of them, because they are not constitutional.  The Constitution clearly does not give the president such a power.

Like presidents, governors also have veto power.  In Maine, a governor has vetoed a bill that would simply ask the voters for their decision.  In effect, she substituted her judgment for giving the people their say.  If something was amiss in the resulting law, the Legislature could fix it.  Vetoing popular choice goes too far.

The courts may carry one-person rule to the greatest extreme.  In 2000, by a one justice majority, the Supreme Court determined the winner of the presidential election.  The action of five non-elected judges, when the Constitution sets up a process for the Congress to decide (and the result would have likely been the same), was a pure and historic  power grab, harming the Court’s reputation.

A single U.S. district court judge, sitting alone in a small city, can issue an order blocking actions of the federal government across the country.  One judge in Amarillo, Texas, banned nationally an approved practice for distributing abortion medication.   That this is absurd should be obvious, but the judicial system, giving itself more power, allows it.

Some judges sit alone on the bench in a small area, so random selection of judges becomes a myth.  Plaintiffs can sue to halt federal actions in any district court, so may select a solo judge likely to rule favorably.

These actions are all inroads on the power of the people and of their elected representatives, essential players in a democratic republic.  No matter how divided people are on specific issues, they might find some common ground in protecting the procedures that are supposed to ensure that government does not disdain the people and roll over them.

Now Donald Trump promises to bring the federal government almost entirely under his personal control if he is returned to the White House.   It would be all about his power not the people’s.

Here’s Lord Acton’s full warning:  “Absolute power corrupts absolutely.”

Can a utility be owned by its customers? -- Maine’s upcoming historic vote

 

Gordon L. Weil

Maine will hold a rare and possibly historic vote in November.

The U.S. is increasingly focused on the role and rights of consumers, who drive the economy.  The upcoming vote on the future of the state’s largest electric utilities will not only affect Maine but could send a message across the country.

Voters will decide whether to transfer the property of two electric utilities from ownership by their investors to ownership by their customers, who would gain ultimate control of their own electric service.  Votes like this referendum occur across the country from time to time, but seldom on this scale

The transfer would be from investor-owned utilities (IOUs) to a consumer-owned utility (COU).  The difference between the two is significant.

IOUs are financed by investors and borrowed funds.  They are responsible to their investors.  Customers pay both their investors’ profit and their lenders’ debt service.  Regulators balance the company’s financial needs and customers’ service needs.  Most news reports about electric rate cases and consumer issues relate to IOUs.  

Non-profit COUs are generally either municipal utilities or cooperatives.  They raise all their capital by borrowing and their customers are responsible for debt repayment from rates. There are no investors.  Because the customers bear responsibility, they own the utility.  COUs are subject to regulators, but they also self-regulate.

The difference between the two is illustrated by their management. Top IOU executives report to a board chosen by shareholders.  COU managers report to boards chosen, directly or indirectly, by their customers.  Maine’s existing COUs are governed by publicly elected boards.  They are either cooperatives or municipals.  The proposed COU would be akin to a municipal.

The combination of the investors’ profit and the market cost of debt are part of the rates paid by IOU customers for utility property.  In COUs, the equivalent cost is usually the tax-exempt interest rate for their borrowing.  The costs to be passed on to COU customers are lower than the IOU costs, producing lower rates. 

In Maine, IOUs and COUs own the wires but do not own power supply, which is provided by others.  Customers may choose their own power supplier.   Residential delivery rates, the utility charges for the wires service, are lower for COUs.  For example, CMP’s rate is 11.4 cents per kilowatt-hour, while Madison Electric, operating in the same service area, has a 5.8 cent rate.

An IOU like CMP serves a large area, including rural reaches.  The Eastern Maine Electric Cooperative serves a vast, sparsely settled area and its delivery rate is 9.0 cents.

Are COUs as competent as IOUs?  There are over 2,800 municipal and cooperative COUs and 179 IOUs in the U.S.  The COUs supply 25.8 percent of electric customers nationally.  The largest is Los Angeles.

Overall, using service outages as the measure, the COUs are more reliable than the IOUs.  Reliability matters when residential customers use electricity for lighting, heating or cooling and for business and industry that depend on steady power for their operations.

COU municipals and cooperatives have national and regional organizations that provide them support services in common. As a result, even small utilities have access to full services that meet the same industry standards as the larger IOUs.

Because no electric utility in Maine relies on its own generation but transmits power provided by others, each could transmit power from the same resources, especially renewable. 

A comparison between the existing IOUs – Central Maine Power and Versant – and the proposed Pine Tree Power COU reflects the recognized differences between the two forms of utility ownership.  However, the proposed acquisition of the IOUs’ property in Maine raises two important issues.

First, would PTP operate competently? To reassure Maine customers, the legislation requires it to operate in much the same way as the IOUs and with all the current operating personnel who wish to continue to work under their existing labor agreements.  PTP would be subject to enhanced PUC COU regulation.

Second, would PTP customers have to pay a high price for the acquisition?  The IOUs seek a premium above the actual value of facilities.  The amount will finally be set by a court.  The last major transaction in Maine, the sale of Emera Maine to create Versant in eastern and northern Maine, was priced at the existing value of the property plus only a minor premium.

Today, paying the cost of the existing property of the two IOUs is already included in electric rates that are being paid by their customers.  Thus, the actual premium above that cost, if any, is what would matter, not the balance transfer. It would be far less than what is claimed and could be offset by lower COU costs.

The voters’ decision could affect Maine’s electric rates and influence the push for consumer choice across the country.

Disclosure: I have advised and represented electric customers and COUs since 1973 and support the PTP proposal.

Simple truths about our politics

Gordon L. Weil

The news comes hot and heavy, but often the underlying truth is missed.  Here are some simple truths about government today.   

1. Our political leaders are too old.  Senate GOP Minority Leader Mitch McConnell freezes in mid-sentence.  Sen. Diane Feinstein (D-California) forgets how she wants to vote.  A Democratic House member considers running against Joe Biden for the presidential nomination, because Biden’s too old.

The media pays little attention to the age of Donald Trump or Maine Independent Sen. Angus King, both of whom, if re-elected, would serve into their 80s.  Is the issue skirted because they will inevitably win or have little serious competition, so why bother?

Congress is getting older.  That results in a disconnect between the hopes and aspirations of Gen X and its successors and the folks running the country.  The U.S. is turning into a gerontocracy, pursuing outmoded policies. 

The media should be taking a close and sustained look at the effects of aging.  And younger candidates should take the risk of running against the aging establishment.

2. The Democrats are afraid of Trump.  If there’s one thing that unites the Democrats, it’s their fear of Trump becoming president.  That’s why they rallied around Hilary Clinton in 2016.  She was not popular with many of them, but she was thought to be a sure bet to keep Trump out.

Though she won a majority of the popular vote, vindicating the Democrats’ view, she lost the election, vindicating the Republicans’ math.  It hurt her candidacy that she seemed to be taking winning for granted.

Biden has compiled a generally good record as president.  He’s human, so he’s made mistakes and the Democrats have not strongly touted his accomplishments. But he seems to them like the best person to halt the return of “the Donald.” 

Like incumbent underdog Harry Truman in 1948, Biden might look stronger after winning a nomination battle.  Or, the Democrats might benefit from having a younger woman lead the ticket.  Ditto, the Republicans.  Imagine how different that could look.

3. The U.S. Senate is deeply undemocratic. Right now, a single senator puts a “hold” on all top military assignments, blocking any confirmations.  Ending Senate debate and voting routinely requires 60 senators instead of the Constitution’s simple majority.

Both parties preserve such rules because they know that one day they will be in the minority.  So we get minority rule, the opposite of democracy. No wonder people hold Congress in low esteem.

4.  You’re damned if you do and damned if you don’t.  Hunter Biden, the president’s unfortunate son, apparently exploited his father’s public standing for his own personal gain.  That’s improper and he may have acted illegally. But there’s no proof that Joe Biden, when in or out of public office, participated in or profited from his deals. 

Hunter is in trouble and his father is standing by him, but GOP attacks on their relationship may cost Biden politically.  Should the president dump his son and allow his political ambition to overwhelm his family bonds?   The Republicans want to put Biden in a no-win position.

5. Conspiracy theory is falsely based on the belief that if something is possible, it must be true.  If logical assumptions about an action or event can be imagined, some people who would like the result, conclude it happened:  if the opposition could have done it, they did it.

What’s missing from conspiracy theory is evidence. If you believe the Democrats stole the 2020 election from Trump, then you need to find the evidence.  Lacking facts, the theory has failed.  Yet the unproven logic still inspires Trump’s loyal followers. Conspiracy theory is a pillar of his campaign.

5. Impeachment is useless.  Every run at a president has been an almost purely partisan exercise, with the House majority taking on the other party’s incumbent.  Impeachment is sure to fail in the Senate, where it would take both parties to oust the president.

As the political divide has deepened, conviction by the Senate has grown even more unlikely.  Now, the House GOP considers using a form of “impeachment lite” – an “impeachment inquiry” that will lead nowhere, but get media coverage.  It’s unlikely to matter much. 

6. The Supreme Court acts like it’s above the law.  The justices have no ethics code.  Justice Samuel Alito even claims that Congress can’t require the Court to adopt a code.  His view would kill the constitutional idea of checks and balances and could set up an epic battle among the branches of government. The truth is that lawmakers make laws, and nobody is above them.

In philosophy, there’s a concept called “Occam’s razor.”  It says that we should seek the simplest, workable explanations.  Simple truths can lead to simple fixes.  Maybe our political players need a good shave. 

Trump indictment: the third impeachment

 

Gordon L. Weil

Set aside the endless flood of punditry and look through the eyes of jurors at the indictment of former President Donald Trump for trying to seize his reelection based on false fraud claims and violations of election laws.

When the case finally reaches its conclusion, 12 jurors in Washington, D.C., will decide if Trump is guilty or not of the crimes with which he is charged.  For them, the case could turn out to be relatively simple.

Most of the indictment consists of a detailed recitation of events involving the effort by Trump, Rudy Giuliani and other associates in trying to nullify votes cast for Joe Biden in several states.  They claimed that votes for Trump had been fraudulently changed or discarded and asked state officials or legislatures to strip Biden of his victory and replace him with Trump.

This single list of facts is used to support all charges.  Anyone who has followed Trump’s efforts between the November 2020 election and the January 2021 inauguration would find little that is unfamiliar in this list.  But the indictment discloses new details about meetings and conversations that support what was already known.

A principal focus of the recounting is the efforts in several states to create false panels of presidential electors whose names could be sent to Congress along with the official electors.  The intention was to create enough confusion that Congress could not designate the winner and would decline to select Biden.  Presumably, those states could then officially change their votes.

Behind the recitation of facts must be witnesses who will testify as to the truth of what the indictment states.  It’s most likely that Special Prosecutor Jack Smith took the time to line them up to testify.

The first task for jurors will be to determine if the actions took place and if Trump was directly involved in them.  That looks to be a relatively easy job, because it would be difficult for Trump to show that he had little or no involvement.

The second task will be for the jury to determine if the actions by Trump and his co-conspirators amounted to violations of the laws cited in the indictment. 

To support the grand jury charge that Trump knew he had lost and resorted to lying about the election, Smith relies on the former president having been told repeatedly by many trusted and high-ranking officials, almost all his own appointees, that he had lost.

Trump is expected to argue that he sincerely believed that he had won the election and that he was doing everything possible to produce the correct result.  Given the magnitude of the damage to the country of placing in office the wrong man, he had to resort to extreme measures to halt the confirmation of Biden as the next president. 

Trump claimed election fraud had occurred though no courts or state election authorities, some of them his Republican supporters, would agree with assertions that lacked evidence. In the process, did he violate federal and state laws and try to induce or threaten others to do so?

If Trump honestly believed he won, would he be justified in violating the law in the pursuit of a fair outcome of a presidential election?  His personal advisors told him that to save the Republic, he could break the law.

The indictment provides a detailed record of his efforts to convince and then threaten Mike Pence, the Vice President, to halt the electoral vote count or simply throw the result to him.  If Pence testifies, he could provide proof that Trump had violated the law at the highest level of government.

The former president is also expected to claim that what he said is protected by the First Amendment, thus completely immunizing him.  But Smith carefully avoided charging him with incitement, sticking instead to his acts and orders.  Also, free speech rights do not protect words that ask or direct others to commit crimes.  That amounts to conspiracy.

Trump charges that Biden is politicizing this case to weaken his re-election chances. But Trump himself politicizes it to stir up support among his loyal core and to raise campaign contributions that pay his legal costs.

Trump may believe that his public outrage at the charges could intimidate the judge and influence her decisions on the timing of the case.  If he can delay it until after an election he expects to win, then he might assume a presidential mantle of immunity even if convicted.

The fourth indictment count charges Trump with conspiring “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.”  That’s an impeachable charge.

Trump has been twice impeached and both times he has been acquitted by the Senate when Republicans refused to convict.  The indictment has become the third impeachment.

Those who will ultimately determine if Trump is guilty or not won’t be his Senate allies, but 12 average people.

 

Trump wants powers of America’s long-ago oppressor

 

Gordon L. Weil

Donald Trump’s critics sometimes compare him to a man whose name arouses a strongly negative reaction.

They usually refer to Nazi Germany’s Adolf Hitler, who used his 1933 democratic election to quickly end democracy. But Hitler was an historic monster, so that comparison goes too far.

The better parallel could see Trump as “The Man Who Would Be King,” told in Rudyard Kipling’s story about the failed hopes of a would-be ruler.

The king in question is King George III of Great Britain, a man we like to dislike. His despotic rule was rejected in 1776 by the 13 American colonies that created the independent United States of America.

Their Declaration of Independence is mostly a list of the king’s “repeated injuries and usurpations.” Some of those charges work for Trump.

“He has incited domestic insurrections amongst us.” Whether Trump is finally held legally responsible for causing the January 6 assault on the Capitol, his followers there believed he wanted them to overturn the presidential election by force. He “incited” them to insurrection.

“He has combined with others, giving his assent to acts of pretended legislation.” Agreeing to the illegal creation of counterfeit presidential electors in several states, who were meant to displace the legal winners on January 6, is a prime case of “pretended legislation.”

“He has obstructed the administration of justice.” When public officials, who had sworn allegiance to the Constitution, did not follow his orders, he either fired them (U.S. Attorney General Jeff Sessions, FBI Director James Comey) or threatened them (Brad Raffensberger, Georgia Secretary of State). He flouted a subpoena for presidential documents and hid them.

He was charged with “refusing to … encourage migration hither” to prevent population growth by new Americans. “Build the Wall!”

King George depended on his “divine right” to rule. The purpose of the Declaration and the Revolution was to replace the regal God-given authority with a government created by the people that could not be controlled by a single person.

The real Revolution was the democratic Constitution, created in a world almost totally dominated by countries under one person’s control. The balances struck between the federal government and the states and among the legislative, executive and judicial branches were meant to make royal-style rule impossible.

Now, Trump offers a different take on the Constitution. “I have an Article II, where I have the right to do whatever I want as president,” he said while in office.

Article II of the Constitution states: “The executive power shall be invested in a President of the United States of America.” It does not say “all power” belongs to the president.

Article I states: “All legislative powers ... shall be vested in a Congress of the United States....” Congress makes the federal laws. Period. Article II requires the president “to take care that the laws be faithfully executed.” That falls far short of “the right to do whatever I want as president.”

If elected in 2024, he proposes to act as if he has unlimited power. He has made clear that he would overrule the independent judgment of the Justice Department and regulatory agencies, refuse to spend money appropriated by Congress and replace thousands of civil service positions with his political appointees. And he would open an investigation of President Biden.

It seems that he expects to have a compliant Congress go along with his plans. If he and a Republican congressional majority are elected in 2024, he will take their joint victory as a sign that the public approves of his plans. That’s why he is stating his intentions now.

In effect, Trump’s intentions would amend the Constitution. While Congress has delegated many of its powers to executive agencies, it retains the right to define their authority and displace or eliminate them. None exists without congressional authority.

The former president’s view reflects the “unitary executive theory,” which would give him complete control over every agency of government. The theory has been around as long as the Constitution. President George W. Bush was a believer. Ignoring Congress and the courts, he signed new laws while saying parts of them were unconstitutional and he would not enforce them.

This form of government may fall just short of absolute royal power, so long as there are regular, free elections. Those in charge may change; today’s dominators may be tomorrow’s dominated.

As for free elections, Trump has claimed that he should be able to serve more than the constitutional two terms. Was it a joke? A trial balloon? Regal presidential status?

In more practical terms, Trump’s plans directly raise the issue of authoritarian versus democratic government. Should presidential elections give us leaders who do “whatever” they want or are subject to checks and balances? That could be the big question on the 2024 ballot.

Dems pulled to center by GOP right

 

Gordon L. Weil

Bernie Sanders is no longer a democratic socialist.  He has dropped that label on his website.

President Joe Biden has gone out of his way to say he is not a socialist, contrasting himself with Vermont Sen. Sanders.   The label has proved to be a political liability.

When Biden ran for president in 2020, he first defeated Sanders for the Democratic nomination.  Sanders was the leader of the left wing of the Democrats, while Biden ran as a moderate.  Now Sanders backs him.

That shift reflects the gradual move to the right of American politics.  In my last column, I focused on the Republicans as they have become more conservative.  This time, it is possible to see how the GOP’s apparent appeal may be drawing the Democrats away from the progressive left.

The Republicans have almost abandoned moderate positions, while the Democrats have moved somewhat more to the center, leaving progressives with the choice of accepting Biden’s practical politics or continuing with what may be self-defeating insistence on their positions.

Biden has scored some liberal wins, but the Democrats have accepted moderate policies in order to preserve their remarkable unity.  They protect the liberal democracy threatened by the hard right wing that now dominates the Republicans.

In his first two years, with a Democratic congressional majority, Biden gained victories on Covid relief, infrastructure, and the Inflation Reduction Act.  He received some GOP support.  In his third year, a Republican House majority harasses him and votes as a bloc against anything he proposes.

He has split the Republicans on support for Ukraine and challenged Democratic progressives by authorizing the sale to Ukraine of cluster bombs, outlawed by much of the international community.  He has not closed a major tax loophole benefiting the wealthy and or provided a competitive public option for Medicare.

The Democrats’ election vulnerability stems from its feeble responses to the GOP and Biden’s lack of charisma.  Their strength comes from Biden’s legislative activism and their unity, caused by the threat of a second Trump presidency. 

Conservative Republicans won’t compromise with the Democrats, because they believe their policies will prevail in 2024.   Pragmatic Democratic moderates believe they can succeed through policies that increase middle class incomes and potential gains among disaffected Republicans.

Maine Gov. Janet Mills may be the model of the right-of-center Democrat who can cater to some GOP interests without losing progressives.

On the progressive side, her advocacy of easing abortion restrictions has wide appeal and is taken as a sign of the state’s liberalism.  She supported paid family leave including a payroll tax increase, displeasing business, because she knew it would win if it went to a referendum.

Mills opposed allowing Maine’s Indians to enjoy federal benefits, even opposing her party’s legislative leadership and showing some innate conservatism.  Similarly, on off-shore wind power development, she was willing to allow labor unions, the Democrats’ natural allies, a preferential shot at only about half the jobs.

And she was lukewarm about the development of a public defender system for poor defendants and did not allow the Legislature to send out the public power to referendum, leaving it up to a people’s petition.  In effect, she moved away from traditional Democratic positions.

Mills and Second District Rep. Jared Golden may be the wave of the future for Democrats. Last week, Golden was only one of four Democrats to join House Republicans in voting for a military spending bill containing a provision designed to cut back on Defense Department outlays for abortions, though the version of the budget will not pass.

Clearly, Mills often takes positions favorable to business, based on the claim that they promote economic development and outside investment.  They include her support for the major new electric transmission line, coolness to public power and her stance on wind generator labor.

The Democrats may not have ceased being liberals, but they increasingly reach out to business interests traditionally associated with the GOP.  That’s one big reason the president has taken to campaigning about the success of “Bidenomics.” 

As they move to the right, the Republicans may put into play traditional economic allies, which care relatively little about the conservatives’ wedge issues compared with their traditional concerns about regulation, taxes and the state of the economy.

Biden may also have an eye on the No Labels movement, which could run a third-party candidate in the presidential election.  It claims to be centrist, taking pro-business positions, while opposing some Democratic policies.  If West Virginia Sen. Joe Manchin joins No Labels and some fellow Democrats follow, it could enhance Trump’s chances.

If 2024 will be a test for the Republican right’s faith in wedge issues and Biden attacks, it will also test if Democrats can maintain and expand their moderate-progressive unity.

Liberal democracy retreats as politics take a right turn

 

Gordon L. Weil

The world is taking a right turn.

Even when parties clash on policy, their shared values can yield practical results through compromise. But now, conservatives increasingly reject compromise, jeopardizing shared values.

Liberal democracy may be retreating. It emerged from the adoption of social welfare policies and the defeat of fascism by American and European democracies. Once widely accepted, it is now openly challenged.

Listen to Viktor Orban, the Hungarian Prime Minister idolized by some American conservatives. His country has lived under a monarchy, Nazism and Communism, and he now proclaims, “We have replaced a shipwrecked liberal democracy.” He labels his new form of government “illiberal democracy,” which amounts to an elected dictatorship with no need to compromise.

Orban’s views are extreme, but many conservatives favor smaller and more authoritarian government, lower taxes, and fewer foreign commitments. They believe that only by being uncompromising, contrary to the practices of liberal democracy, can they gain control.

Even in Maine, this way of thinking is appearing.

Unless two-thirds of the Legislature agrees on a state budget, a version adopted by a simple majority and signed by the governor must be delayed for 90 days. That’s what happened this year with the basic budget. But hopes remained for a supermajority to adopt the supplemental budget.

The minority Republicans and the majority Democrats had conflicting legislative goals. They reached a compromise with some GOP gains, but the majority unsurprisingly dominated the result. The 13-member bipartisan Appropriations Committee sent the agreed budget to the House and Senate with the opposition of only one Republican.

The compromise budget, enjoying the support of Republican leaders, was expected to get the required supermajority. Then, GOP House members rebelled against a budget that had been negotiated by their own picked representatives. The House GOP leader had to abandon them.

Minority Leader Billy Bob Faulkingham said that efforts had been made at compromise. “But at the end of the day, I listen to my caucus, and I answer to them.” With remarkable honesty, he reported that he had accepted its refusal to agree. The GOP required even more concessions to add to their major win on highway funding, which should reduce taxes.

In the final tally, the compromise budget received only three GOP votes. Two came from members of the Committee, veterans of political compromise politics who stuck by their position and the third was by the Senate GOP leader.

Maine Republicans in the Legislature had openly shed the shared values of compromise for partisan conflict. Their backs may have stiffened when the Democrats led in adopting liberal legislation on abortion and gender.

This situation revealed much about the Republican Party. While there may be more degrees of conservatism at the national level, the split between party factions was revealed by the Maine budget switch.

Nationally, the GOP is composed of four elements: Trump loyalists, the hard or extreme right, strong conservatives and moderate or economic conservatives.

The Trump loyalists are attached to Donald Trump (and possibly to any successor named Trump). They can be understood as an ultra-loyal cult or at least an ardent fan club. Wherever he leads on policy, they follow. If he is found legally guilty of anything, they would see him as the victim of a plot.

The hard right places partisanship above political responsibility. They not only disagree with Democrats; they want to destroy Democrats. This leads to conspiracy theories and endless attempts to discredit their opponents. Social media lies are their weapons. Autocratic government is their goal. They are the Orban people.

Strong conservatives will fight on wedge issues like abortion, gender identity and gun control, and also support voter suppression and more emphasis on religious rights. They demand smaller government and lower taxes. They want to reduce government aid programs for the poor and disadvantaged.

Traditional conservatives want lower taxes and reduced regulation, which they see as standing in the way of economic growth. The business wing of the party, they are less concerned about social issues than other conservatives. They are willing to seek compromises with Democrats. Among Republicans, they are fading out. The Maine budget vote showed that happening.

The growth of the hard right and strong conservatism is not limited to the U.S. The right turn has been seen in the end of U.K. membership in the EU. Italy, Israel, Sweden and France have all seen a surge of parties on the right.

In the U.S., the split between strongly conservative states and other states following more traditional politics is becoming increasingly obvious, shown by contrasting red and blue states.

Conservative Republicans want to give voters a clear choice, undiluted by compromise. They believe that’s the way to win. The 2024 elections, with or without Trump, may provide the key test for the powerful Republican right.

Supreme Court reactions: Too much heat, too little light

Gordon L. Weil

More has been said about what’s wrong with recent Supreme Court decisions than about what the decisions said.  Snap analyses have amounted to spreading half-true and often biased explanations to people who don’t read the opinions.

On one side are liberals, including justices, who give the clear impression that the Court is political, acting like a legislature, and under the control of conservative zealots.  On the other side are conservatives, who like the decisions and claim victory.

Beyond question, the Court’s majority on some major issues is composed of conservative justices. They show that there is no objective law, but rather that the Constitution and laws are subject to their mindset.  Recent controversial cases reveal how justices look at the same facts, but reach conflicting conclusions. That’s normal, and the criticism may go too far.

In one case, a cake maker who designs special sweets for customers sought to refuse any client who wanted a cake decorated for a same-sex wedding.  The designer’s religious beliefs oppose such marriages, and they wanted to conform to these teachings.  But Colorado state law bans discriminating among customers.

The Court ruled that requiring the designer to prepare such a custom cake violated their freedom of speech because the government would make them express themselves over their objection. The decision only affected design work, and did not overrule the Colorado law requiring the designer to sell any standard cake to any customer no matter its ultimate use.

The criticism of this decision was that it allowed a person’s religious belief to displace the Fourteenth Amendment requirement for equal protection of the law. The Court majority effectively decided that a First Amendment free speech right should be given more weight than that Fourteenth Amendment right.

While about a religious objection, the decision was not about religion. Suppose the designer was the descendant of a Holocaust victim and refused to place a swastika on a cake for a fascist customer.  Would opponents of the cake case decision feel the same?

In another controversial decision, the majority ruled against affirmative action in college admissions. Race by itself could not be used simply to increase the diversity of the student body.

The conservative majority noted that the universities in the case had offered no evidence that diversity produced superior academic results.  The advocates of affirmative action may believe that diversity in itself has an obvious educational value. 

The Court ruled that the relevance of a person’s race to their own life could be taken into account, but that admitting people to achieve racial balance should not be allowed.  That could amount to illegal discrimination negatively affecting applicants denied admission.  Colleges could neither deny nor offer admission based on race

After this decision, colleges could still end up with similar diversity through their individual admissions selections.  And the Court’s decision will affect only a handful of the nation’s thousands of colleges.

Another case focused on President Biden’s attempt to wipe out $430 billion in student loans using a law passed after 9/11, giving the president extra emergency powers. He had suspended loan payments during the Covid pandemic and proposed to use the terrorism law to make the suspension permanent.

The Court majority said the president could not undertake such massive spending, even for a worthy purpose, without express congressional approval.  The minority claimed that the majority had invented a new rule to reach this conclusion. That’s a legal question open to debate.

What would have been the reaction if President Trump had chosen to use his emergency authority under this law to build the wall along the Mexican border?  Wouldn’t there have been objections that he lacked such authority and could not use the 9/11 law to cover his favored spending?

In all these cases, it’s worth remembering there may be a difference between what you see as right and what is legal. 

The Court’s conservatism seems increasingly political, especially given Justice Samuel Alito’s public speeches.   In recent years, justices on both sides have become highly and rudely critical of one another.  That increases the appearance of partisanship and not judicial neutrality.

Chief Justice John Roberts, a conservative, is making some effort to close the gap.  He is putting space between himself and the extreme conservatives. But he resists a code of ethics for the Court and tolerates the political activism of some justices.

The Court’s controversial opinions reveal the false assurances by judicial nominees who tell Congress they will stick to the law. What’s the law?  Elect a conservative president and their appointees will probably produce conservative interpretations of the law.

When people are polled about major issues, they often cite the economy or immigration in determining who they support for president.  If they fail to focus on the Court, they may get decisions they don’t like.

 

Major events dominate historic June: From Putin to Supreme Court

 

Gordon L. Weil

June may turn out to have been an especially historic month.

Unusually, at least five events took place that are changing the U.S. and the world.  Amazingly, only one of them was related to a current armed conflict and, in that case, not a single member of the American military was under fire.  The historic almost became so routine as to almost miss being noticed.

The event related to war that drew worldwide notice was the uprising against Russian President Vladimir Putin and his fumbling military.  Despite his efforts to restore its former role as a world power, Russia was finally revealed as the second-rate dependency of China that it has become.

Putin had parlayed his mistakes into an epic loss.  He believed Ukraine would collapse with only a small push, that the West would not support Ukraine and that he had tamed Europe by making it dependent on Russia’s energy.  Wrong, wrong and wrong.

Suddenly, a Russian election may mean something.  Next year, a presidential election there may find Putin open to challenge.  While he can still try to throttle the opposition, ranging from repressive to reform, his success is no longer assured. 

This month, U.S. Secretary of State Antony Blinkin delivered to China an American message placing clear limits on what would be tolerated.  While acknowledging that the two huge economies both benefit from a good relationship, the U.S. stressed that it would not sell out its vital interests for the sake of that linkage.

He told the Chinese leadership that its shipments of the raw materials of fentanyl to Mexican drug cartels were seen as an attempt to undermine American society by promoting drug dependency.  Such exports to criminal elements were hostile acts undermining hopes for improved relations.  Arrests followed.

Despite China’s attempts to scare off American naval and air forces from the China Sea, the U.S. made clear that it would not recognize Chinese claims that the Sea was its internal waters.  Much of world trade passes through this international sea, and the U.S. and its Asian allies would keep it that way.  It’s now up to China to decide on further confrontation.

In both the U.S. and the U.K., the mighty were in the process of falling.  The British Parliament made history when it forced out Boris Johnson, a former prime minister, who had arrived with a strong electoral mandate but left in disgrace. He even lost his special pass into the building.

The action, which included his own party, was an impressive example of the strength of democracy.  The government continued to function without facing either a Capitol-style insurrection or mutiny à la Russe.   The prevailing calm almost obscured the political history.

Donald Trump, who tried too hard to hold onto the presidency and its powers, could not miss that justice was beginning to close in on him.  The public could listen to the tape of him describing papers he held on Iran policy options as laid out by the Chairman of the Joint Chiefs of Staff.  He admitted that he was no longer president and the papers were classified.

He had led “Lock her up” chants about Hilary Clinton, his 2016 presidential rival and the missing emails on her private computer.  How could he distinguish between the two of them?  His presidential campaign coffers became the source of funding for his legal defense, revealing that the legal case was his true campaign.

Finally, the Supreme Court’s conservative solidarity began to show cracks.  Finding itself increasingly at odds with the public and with its members subject to ethics challenges, the Court began to show some signs of change.

The Court turned a corner in congressional redistricting cases.  Alabama had laid out districts that distributed African Americans so they could win no more than one House seat.  The state argued that, no matter its effect, discrimination had not been the intent of the districting law.

Previously, the justices had insisted on openly racist intent before they would overrule state districting.  That was virtually impossible to prove.  Now the Court majority has found that the Voting Rights Act allowed them to look into effect, so long as it did not impose strict proportionality.  Alabama was sent back for a redo.

But there was more.  After allowing Louisiana to create only one Black district in 2022, the Court opened the way for two such districts in 2024.  Finally, it rejected conservative claims that state legislatures could ignore state court rulings that block political gerrymandering.

Any of these June events was big news.  Together that made major history that almost got lost as one story piled on the other and other events, from abortion to immigration, captured public and political attention.

But, to paraphrase a long ago television comedy show: “That was the month that was.”