Supreme Court Uses ‘Catch-22’ in Voting Rulings

You are only allowed to see the doctor if you are sick, but only the doctor can say if you are sick.  So you cannot see the doctor.

That’s a “Catch-22,” named after the famous novel by Joseph Heller in which this logic trap was hilariously and frighteningly described.

The latest Catch-22 has just come from the Supreme Court of the United States. In fact, in its recent decisions on the Voting Rights Act and an Arizona voter registration law, the Court used it twice.

The Voting Rights Act was passed in 1965 to give some teeth to the Fifteenth Amendment, which prohibits efforts to block voting on the basis of race.

Intended mainly to stop former Confederate states from preventing newly freed slaves from voting, it gave Congress the right to pass laws intended to enforce the Amendment.

Little happened for a century, mainly because Southern senators filibustered any proposal.  Then President Lyndon B. Johnson, a Texan, succeeded in getting the Voting Rights Act passed.

One part of that law says the U.S. Justice Department must approve in advance any changes to voting laws in nine Southern states and parts of other states, some in the North. The law contains the standards needed to get an OK.

In 2006, the law was renewed.  A Republican-controlled Congress voted for renewal by 390-33 in the House of Representatives and 98-0 in the Senate.  The bill was signed by President George W. Bush, also a Republican.

But the standards were not updated.  Some discrimination persisted, though it had taken new forms, such as efforts to suppress voting by members of minority groups.

Last month, by a 5-4 vote, the Supreme Court rejected prior approval of voting changes in affected states, finding that the standards that applied in 1965 were no longer needed and that Congress had not come up with new reasons for extending it.

Five justices decided that national policy adopted by an overwhelming majority of Congress, including senators from all of the affected states, should be tossed out because, in their view, it was outdated.

Justice Antonin Scalia had said in effect during the court proceedings that Congress couldn’t resist being politically correct, so it was up to the Supreme Court to make a decision that normally would be left to the legislative branch.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process,” he said later.  Instead, he implied there must be an unusual political process, unusual because the Court is not supposed to be political.

The decision did not go that far. It allowed the prior approval requirement for offending states, provided Congress sets new standards, which would presumably have to be approved by the Court.

Could Congress with a House of Representatives now controlled by strong conservatives adopt any new standards?  Would the Court approve any new standards? 

If the answers are “no,” as many observers believe, then the Court has produced an obvious Catch-22.

The Justice Department may still prosecute efforts to stymie minority voting.  Without prior approval, it may need to be more aggressive.

And rather than assuming the House will block anything, President Obama could propose new standards to see where Congress stands.

Congress recognized that some states were trying to reduce the number of minority voters by placing new obstacles in their way. It created the Election Assistance Commission to prepare a standard form stating what information may required from a person voting in a federal election.

Arizona added its own requirements, making it more difficult for a person to prove citizenship. Oddly enough, one target was Native Americans

The Court, in an opinion written by Scalia, overturned the Arizona requirement, leaving the EAC standards in effect.  If Arizona didn’t like them, it could appeal to the EAC, which it had failed to do.

The problem is that there is no EAC.  Congressional Republicans have blocked the appointment of all four members and, without them, there is no staff.

Because Arizona cannot appeal to the body set by law to handle such matters, the state faces another Catch-22.

However, if it cannot get a favorable EAC decision, the state could appeal the non-decision to court. 

The case could make its way up to the Supreme Court, and the justices – or at least five of them – might act in place of the EAC and overrule or expand the agency’s standards.

In the end, Arizona and other states seeking to make it more difficult for minorities to vote could get their way, thanks to Catch-22.

Paying the price for secrecy leaks

The United States is once again caught up in a case of leaked, secret information.

After the WikiLeaks disclosure of diplomatic messages has come the revelation that the National Security Agency collects telephone and Internet data.

Both leaks publicize government actions that people supposedly could find both wrong and invasive. The leakers clearly want to put a stop to what the government is doing by making its operations public and hence worthless.

The suddenly revealed material has been kept secret for reasons ranging from delicate diplomatic relations, involving frank comments about other countries, to intelligence gathering on adversaries, including terrorists.

The first step in bringing secret government activities into public view is revealing them to unauthorized recipients — the leak itself. The second is the publication of the information by the media.

Revealing the information may result in allowing enemies to avoid surveillance, putting American sources in mortal danger or compromising relationships with other countries.

Counterbalancing these concerns is the need for an open government, operating in a democracy, to enable its citizens to be aware of the actions it takes on their behalf, so they may decide what limits to impose on it.

The leakers — Army Pvt. Bradley Manning in the case of WikiLeaks and Edward Snowden in the case of NSA surveillance — concluded that unless they revealed secrets to which they had access, improper government actions would continue without the public knowing.

The leakers knowingly broke the law and the rules on secrecy they had previously agreed to respect.

With the leaked data in hand, the media distributed the information from these sources, pursuing its responsibility in open societies to inform the public.

Faced with the choice between suppressing news and publishing it, the media has done its job and probably broken no law.

Some people believe that Manning and Snowden should not be punished for their actions, because they are serving high and worthy purposes, not simply leaking to gain sensational headlines for themselves.

When people knowingly break the law to serve the public interest, they act in a long tradition. It began 165 years ago in Massachusetts.

Henry David Thoreau, a Concord school teacher, spent a night in jail for refusal to pay a tax. In 1848, he laid out his view “On Civil Disobedience.”

Thoreau advocated nonviolent opposition to government. He accepted that if a person broke the law, he or she would be punished. If “one honest man” freed his slaves and went to jail, “it would be the abolition of slavery in America,” he wrote.

A couple of men, acknowledging Thoreau’s inspiration, disobeyed the law, went to jail and changed their countries. India’s Mahatma Gandhi and America’s Martin Luther King Jr. accepted that their peaceful resistance to colonialism and racism was worth a prison term.

Snowden, following the lead of WikiLeaks chief Julian Assange, has enlisted the help of countries that would like to embarrass and harass the United States. To avoid the consequences of his actions, he compounds them with disloyalty.

China, Russia and even little Ecuador have been given the chance to pull Uncle Sam’s beard, thanks to Snowden. Whatever the merits of his cause, he has not only released secrets, but harmed his country’s position in the world.

The federal government itself, no matter its intentions, must take some responsibility for all that has happened. One can only wonder how a lowly, new Army private and a recently-hired contract employee could gain access so readily to vital national secrets.

In fact, the question arises whether the drive to reduce the size of government, partly accomplished by assigning essential tasks to contractors such as Snowden’s employer, makes sense or even really saves money.

One positive side effect of the leaks could be that government officials may be more careful about what they communicate in writing. Email and social media may have made messaging so easy that people may write carelessly before they think.

Without going into details about the content of communications or surveillance methods, the president and Congress could engage in a discussion of just what kind of operations are appropriate in a democratic society. And they could set stricter rules limiting who has access to secret information.

If the government had been more forthright on the nature of what it felt necessary to do, without going into details, and more willing to let citizens know how secret programs are controlled, there might be fewer sensational leaks.

 
Wrapping special courts and Congress in the same secrecy as the programs they supposedly control may be what creates opportunities for leakers.

Politicians, Voters Rely Too Much on Polls

Polls are overwhelming the political process.

Politicians and the public have come to rely heavily on opinion surveys.  Our belief in them has increased just when we should have become more skeptical.

Two stories in the past few days prove the point.

President Obama has reportedly been uncertain about reacting to the civil war in Syria, because he reads the polls as telling him that the American people are opposed to any more involvement in the Middle East.

And, in Maine, the potential entry of Congressman Mike Michaud into next year’s race for governor has led to a spate of reports citing a poll being used by pundits rushing to handicap the contest.

There’s much wrong with reliance on polls in both cases.

Because of his reluctance to act, Obama has seen the situation in Syria deteriorate to the point that it may pose danger to American interests. Iran seems to be gaining a foothold in Syria, and Lebanese terrorists are now fighting in support of the Syrian government.

When Obama’s “red line” against the use of chemical weapons there was crossed, he delayed acting, making the line look like little more than an empty threat.

Reportedly, former President Bill Clinton finally got on his case, telling him that a leader is elected to do what it right for his country not what the polls say a largely uninformed public thinks.

In other words, it is the leader’s job to shape public opinion by defining policy and explaining it to the people.  Could Obama change poll results if he took action with respect to Syria rather than avoiding the leading role much of the world demands of him?

Meanwhile, by taking no action, well short of sending troops, the United States may be strengthening Iran, a country whose nuclear program could be a threat to the U.S., and terrorist groups that could pose an increased danger to the U.S. and its allies.

Under pressure from Clinton and ally Great Britain, Obama may be willing to move out from the shadow of the polls.  Just how far he will go on his own remains to be seen.

In the Maine election picture, some of the worst defects of polling have already appeared.  A recent poll pitted GOP Gov. Paul LePage against independent Eliot Cutler and an unnamed Democrat.

This poll came a year-and-a-half before the election, with no campaign having taken place, and, almost laughably, with one candidate’s identity unknown.

It was hardly a surprise that the phantom Democrat fared poorly, proving that it is tough to beat somebody with nobody.

It proved only that some people are what’s called “yellow dog Democrats” – people so loyal it is said they would even vote for a yellow dog if it were the party’s nominee.

The poor showing by the political nobody should have no influence on Michaud as he makes up his mind about running.  In fact, he almost certainly has already decided to run.

Polls keep playing a prominent role, because the media likes them.  When polls showed the GOP candidate gaining in the upcoming Massachusetts special election for the U.S. Senate, some news reports excitedly hyped the race as a toss-up.  In fact, all signs show Democrat Edward Markey winning next Tuesday.

While polling can be useful, it needs to be handled with care.  Polls today have enough obvious problems to raise question about how much leaders or the public should rely on them.

Many polls have been shown to have built-in biases.  Some, intentionally or not, often produce results favorable to one party or another.  Of course, a few are intentionally meant to produce the false impression of objectivity while favoring a candidate or cause.

Pollsters face a challenge to reach cell phone users on telephone surveys.  To the degree they miss a part of the population, their accuracy becomes questionable.

Many people, selected randomly, refuse to be interviewed. And some people lie to interviewers.  Both the abstainers and the liars undermine the value of surveys.

Even more important is timing.  Public opinion today is obviously not the same as it will be on Election Day 2014.  In 2010, support for the Democratic candidate for governor was much higher in the polls only a few days before the election than it was when people voted.  The false impression may have affected the election outcome.  

Polls have some value, of course, but these concerns suggest we should accord them less importance.  And leaders could try to influence opinion rather than merely trying to follow what the polls show.

Controls on surveillance secret, unsupervised

The news that the federal government has been collecting phone and Internet data on millions of Americans has stirred controversy over the balance between national security and personal privacy.
Despite the revelation of the National Security Agency program called Prism, how it is controlled remains largely secret.

Government officials try to reassure average citizens that they are protected from invasion of their privacy by oversight exercised by both the courts and Congress on Prism and other programs under the Patriot Act.

The government must first seek approval from the so-called FISA court to spy on Americans. FISA is the Foreign Intelligence Surveillance Act, first enacted in 1978. Until last week, few people had ever heard of the FISA court.

The FISA court consists of 11 federal district court judges, appointed by the chief justice of the Supreme Court. They may be scattered around the country but at least three must be near Washington so decisions may be obtained quickly.

Only one judge deals with each case, which may only be brought by the government. Any other affected party does not even know there is a case under consideration, and gets no chance to oppose the government request.

If the government is turned down, it has no appeal and cannot go to another FISA judge for a second try. Of course, any other unwitting party cannot appeal, because it never knew there was a court proceeding and, when it receives a FISA court order, it must maintain absolute secrecy.

Last year, the government filed 1,789 requests to the FISA court. One was withdrawn, 40 were modified. All the rest were approved.

The public has become aware of the political divide in the courts. Judges appointed by Republican presidents are likely to be more conservative than those appointed by Democratic presidents. That’s why GOP senators are now trying to block some Obama judicial appointments.

Chief Justice John Roberts is a Republican appointee. Perhaps not surprisingly, the 2012 FISA court, selected by him, was composed of nine Republican appointees and only two Democratic appointees. Neither of them sits near Washington, while three of Robert’s partymates sit in the District of Columbia.

The judge who allowed the Verizon data gathering was GOP-appointee Judge Roger Vinson of the district court in Pensacola, Florida, the same judge who hastened to be the first to rule that Obamacare was unconstitutional. His opinion was later overruled by the Supreme Court.

Vinson’s role at least raises the question that the unusually conservative judge may possibly be more likely to give greater weight to government requests for national security access to records than to civil liberties concerns not represented before him.

The Senate must approve all federal court judges and gives nominees careful scrutiny. But it has no role in approving FISA court judges, whose activities on that court are often far more significant than routine district court matters.

The Senate and House Intelligence Committees have oversight on Patriot Act programs and activities. It is unclear just what power the committees can exercise, because they cannot share what they know with other members of Congress.

Committees have no authority to give orders to executive agencies, and Congress as a whole usually has limited information on which to act.

Last week, President Obama tried to reassure the public, saying: “Your duly elected representatives have been consistently informed on exactly what we are doing.”

He implied you are being protected by members of Congress, all 535 of them. But that cannot be true unless your “duly elected” representative happens to sit on an intelligence committee.

Sen. Angus King serves on the Senate Intelligence Committee and has been attending its regular meetings for the past five months. He reported that he “did not know the specifics of the two programs that were revealed [last] week.”

King’s experience shows the committee had not been “consistently informed.” Possibly only the committee members at the time the program was launched were aware of its specifics.

The lack of adequate and verifiable supervision could lead to executive agencies regarding the Patriot Act as almost a blank check to do whatever they deem fit to protect national security.

Without real controls on Prism, the program may lead to an innocent person, for example a student conducting research on al-Qaeda, becoming the target of investigation simply because of phone calls or Internet searches.

Many people agree that some personal sacrifices are required to protect the country, but they could have reasonable concerns that government privacy controls may be insufficient or unenforced.

Two-party government is deadlocked government

Many voters think splitting control of the government between the two major political parties is a good idea.

It seems obvious that the two sides will have to compromise to produce results, and extreme policies can be avoided.

Right now, there is split control in both Washington and Augusta, but the view about divided control turns out to be wrong.

The president and the U.S. Senate are under Democratic control with the Republicans running the House. In Maine, the Governor is a Republican, and the Legislature is controlled by Democrats.

In theory, new laws should be rolling out, reflecting compromises designed to give each side something.

Instead, we are experiencing deadlock. Even worse, the gap between the two sides seems to be widening, and relationships between our leaders have become personally poisoned.

Many factors contribute to this situation. Some of them are institutional;others reflect the dominance of political gain over good government.

The top institutional factor is the veto. If a president or governor rejects a bill passed by a legislative body dominated by the opposing party, it takes a two-thirds vote to override such opposition. In a polarized setting, two-thirds is hard to come by.

If nothing else, party loyalty plays a role. Legislators act increasingly like they were in a parliamentary system, where members virtually always must vote to support their prime minister no matter their own views.

In Maine, we see the curious situation of GOP legislators voting to support the governor’s veto of a bill they had joined with the Democrats to support unanimously.

In Washington, the certainty of a veto, to be sustained by the Senate, drives the House to vote repeatedly on bills with no chance of adoption whose only purpose is to stake out the GOP’s position.

National law making is further hindered by the extensive use of the Senate filibuster. The president cannot even name his own department heads or make judicial appointments because of the GOP’s ability to deny the votes needed to end debate.

Also missing is the sense that the chief executive, elected by all the people, ought to be given the chance to govern.

At the federal level, even though President Obama was reelected by a good majority, the GOP seems to persist in its mission to discredit his presidency and prevent it from being a success. Many Democrats believe the underlying reason for this deep opposition is racism, a belief that does not promote cooperation.

At the state level, where Gov. Paul LePage was elected by a minority in a three-way race, Republicans won’t produce another candidate for next year’s election, so they must defend him. By the same token, the Democrats continually oppose him.

While Obama has perhaps been overly accommodating to the point of fruitless appeasement, LePage has been confrontational. He appears to treat the Legislature as if he still were the head of a private company and legislators as his employees.

Democrats have been confronted in Washington by a highly disciplined GOP that is in no mood to compromise. The Democrats in Augusta have faced a highly opinionated governor who also is in no mood to compromise.

Democrats have responded badly. At the federal level, they have refrained from laying out comprehensive, middle-of-the-road policies. Instead, they mark time and wait for voters to reject the GOP.

In Augusta, Democrats have thrown away political advantage by surprisingly denying a sitting governor the opportunity to address a legislative committee. He was infuriated.

This divisiveness is compounded by the length of our political campaigns. Right after one election, the next campaign begins, giving officials no breathing space to develop policies through compromise.

Voters may have condemned “politics as usual,” but they produced results. Today’s divided governments are producing uncertainty, revulsion and some fear, but little needed legislation.

To be sure, if a voter wants less government, divided control with continued paralysis may be satisfactory. For those with greater expectations from government, it is not working.
In the end, the responsibility falls on voters.

If the political parties choose to act like we have an essentially parliamentary system, perhaps people will vote accordingly.

That means voters may increasingly pay attention to party affiliation and make voting for ideological soulmates the top priority. The coming elections may see straight party voting grow, with voters favoring control of both the executive and legislative branches by a single party.

Health care law needs work, not repeal

Everybody seems to like hybrids. They are often better than the originals that were combined to make them. 
 
Hybrid flowers are among the most prized beauties. Hybrid autos are both better for the environment and practical over long distances.

There is one other thing about hybrids. They usually cost more.

That’s one of the big problems with a huge hybrid that we all own — the Affordable Care Act, increasingly known as the ACA or Obamacare.

Until now, the industrialized world has known only two basic kinds of health insurance. In most developed countries, the government is the single payer, in effect the only insurer, who pays for all costs. The alternative, the traditional American approach, is to leave most health insurance optional and up to private insurers.

The single-payer system guarantees coverage for everybody, while the private system does not. Under the private approach some people go without coverage and get little or no health care.

The ACA is the uniquely American hybrid of the two systems. It is designed to provide coverage to almost everybody while still using an essentially private system.

President Obama and a Democratic Congress decided to develop a program to provide as near to universal coverage as possible. But there was little support to have government as the single payer, in effect extending Medicare to all Americans.

Under the ACA, Americans are required to buy health insurance, and financial help will be provided to those unable to afford it. Private insurance will remain widely available. Nonprofit exchanges are expected to provide a low-cost alternative.

As I mentioned in an earlier column, the ACA was created with known defects. The Democrats chose to enact it, warts and all, to get around a Senate filibuster.

The ACA prescribed a gradual phase-in of the many-faceted plan, due mostly to be completed by next January.

Its design flaws were immediately apparent. It imposes a financial burden on small businesses. Also, some of its rules are costly and complex, making them difficult to put into effect.

The GOP has not accepted the new law and has continually sought to repeal it.

The House of Representatives, under GOP control, has voted 37 times to repeal Obamacare. The Senate, under the Democrats, made sure those votes went nowhere. But the Democrats have not described what changes they would accept.

GOP opposition makes the Democrats reluctant to open the law to change, for fear of creating an opportunity for the Republicans to kill it. Their target is likely to be the exchanges, which could lower costs, putting pressure in the private insurers.

Having failed to eliminate Obamacare, Republicans have found ways to undermine it.

The law allows states to expand Medicaid to ensure that almost all poor people gain access to medical care. The federal government would reimburse all of the added cost for the first three years and 90 percent from then on.

Many states, all under Republican control, have declined this option. It looks like they are willing to sacrifice the health care of some of their poorest citizens in their effort to sink the entire program.

In Maine, Gov. LePage says the state would sign up if the federal government paid 100 percent of the costs for 10 years. To do that, the ACA would have to be modified, impossible because of the congressional deadlock.

If the opponents of the ACA cannot repeal it, they may believe they can make it so unworkable that it will fail on its own. Then, the Democrats might have to accept its repeal.

One problem with the GOP position is that it offers no workable alternative that would produce broad participation.

House Republicans support a federal voucher system under which people would receive financial support to purchase their own private health insurance. To keep government costs under control, the value of the vouchers would be kept low, meaning that many of those without coverage could still not afford it.

Meanwhile, the ACA phase-in continues, providing better benefits to more people. As that happens, stopping it becomes more difficult.

And running against it in 2012 did not seem to help the Republicans.

Developing a hybrid flower requires continuous attention until it is bred to survive. The same is true for the ACA. Like any major new program, it needs follow-up legislation as lessons are learned.

The ACA needs changes, quite a few of them. We would be better served if the GOP accepted Obamacare, the Democrats accepted some changes, and both parties focused on making it work better.