Federal courts legislate, public confidence wanes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Politicians, media stoke fear, ignore facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pundits must now make room for real voters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Political rhetoric based on dubious economic beliefs

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

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

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

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

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

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

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

But we have little inflation. Why? Mostly because the price of oil has fallen as new supplies have become available. Cheaper oil should help business, but it is surprisingly seen as a negative.

In fact, not all inflation is caused by a short labor supply. Besides, without inflation you can get what amounts to a pay increase whenever you buy gasoline for your car.

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

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

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

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

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

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

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

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

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

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

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

Trump campaign raises issues about traditional values

Donald Trump has shaken up the political scene. But his candidacy may be more about the American people than only the Republican presidential nomination.

Trump defies all the usual expectations. He makes statements that are easily proved untrue. He bluntly attacks Muslims, Mexicans, women, the media and his opponents. His tactics, usually presented in an almost affable style, get massive free coverage.

He exudes supreme self-confidence. No matter what he says, his popularity persists.

Trump tops the polls, essentially leading the GOP pack for months. In fact, his aura may depend on his relatively high poll standings. It’s not clear if he would fade out if his poll standing slides or he loses a primary.

With questionable polling and a still-crowded GOP field, we may not yet know how well Trump is doing with the voters. And if he is doing well, what does his success say about the voters and the political temperament of the country?

The answer to the first question will begin to emerge in a month. While the February 1 Iowa caucus participants are hardly representative of voters across the country and probably not even in Iowa, the pundits will surely analyze caucus result for sweeping insights.

By March 1, there will have been enough primaries to let his opponents know if Trump really is the candidate to beat. Just two more months to wait.

From the outset, his opponents have suggested he cannot win the GOP nomination, because he offends too many people. Even if he is nominated, Hillary Clinton, the likely Democratic nominee, is said to be ecstatic at having such an easy opponent to beat in the general election.

Most of his competitors and many media analysts assume that Trump’s actions and statements are out of line with “traditional American values.” They argue that most voters will show they stick to these values when they stop responding to pollsters and start voting.

His opponents and critics believe that regular voters will turn out and reject him. Besides, if Trump appeals to people who have usually been on the political sidelines, it is not certain they will show up at caucuses and primaries.

The possibility that primary voters will back Trump and ignore the proclaimed traditional American values is underlying the concern about his candidacy. He can only succeed if enough people believe in him as a possible president, even if they understand his message is more bluster than real substance.

Heralded traditional American values may not be all that traditional. Take immigration. The American political scene has always included many who oppose accepting new immigrants with different backgrounds from their own. For example, from 1882 to 1943, federal law excluded Chinese immigrants.

Are people worried about the coming change in the composition of the population that will yield a country in which the majority is composed of people of color and not people who look like themselves or Trump?

In the past few decades, the country has changed. Federal laws now require the equal treatment of people, including immigrants, based on a wide range of possible characteristics. Though this equality is not reliably honored, equal treatment has become a traditional American value.

Also, from the beginning of the Twentieth Century, Americans have been accustomed to a bold foreign policy, fostering the belief that the U.S. can take whatever action it wants in the world and other nations must fall in line. Even if, at times, this belief has been based more on tough talk than on fact, it’s traditional.

However, instead of believing America can impose its will on other countries, the U.S. now participates in many international organizations and agreements. It actively seeks to form “coalitions” to pursue common objectives. Other countries do not automatically follow the U.S. lead.

Trump says he wants to “make America great again.” That seems to mean he promises to restore the policies and actions of an earlier period of American history. To do that, he faces the massive task of gaining the help of Congress and a broad national consensus.

Possibly, he is merely stroking those longing for a way of life and world power that is disappearing. Even if the change to a nation with no dominant racial and religious group and the recognition of limits on American power are inevitable, Trump may make some people feel better about their country.

The electoral process will tell us if Trump has staying power. Perhaps more importantly, it may tell us about the values, hopes and fears of the American people.

National Christmas tree costs almost $1.8 trillion

Did you see the national Christmas tree lighting? No, not the gift-free ceremony on the White House lawn.

The real Christmas tree is a bill enacted by Congress last Friday and promptly signed by the president. There were gifts for almost everyone under that tree.

Most of the almost $1.8 trillion pays for the entire federal government for a year. About a third of it cuts taxes for many, from racehorse owners to retirees.

Who paid for all these gifts? Partly, current taxpayers. But much of the deal depends on what is likely to be hundreds of billions of new debt, a gift from our grandchildren who must later pay the bill.

The tax piece is entitled, “Protecting Americans From Tax Hikes.” The “Americans” involved do not include children.

Congress knew what it was doing. Though it had pledged never to increase spending without finding the offsetting revenues, it simply overcame this so-called “Paygo” by passing the “Motion to Waive All Applicable Budgetary Discipline.”

Also broken was an agreement to fund defense and non-defense programs equally. More money appears to go to the military than to civilian activities.

The gifts in the deal were the reason why the legislation passed. To get enough Republicans to support the bill, many had to be granted funding for their constituents or campaign backers. The New York Times reported that Sen. Susan Collins got $1 billion for a destroyer not requested by the Defense Department. It's likely to be built at BIW.

House Speaker Paul Ryan seemed to do much better than John Boehner, his predecessor, but he didn’t. He still lost the votes of many GOP representatives. He gained passage only because they did not entirely block the legislative process as they might have. Ryan got to enjoy his congressional honeymoon.

It is unlikely that many senators or representatives even read the 2009 page bill they passed. Still, the pages were double-spaced with wide margins and big type. The complex bill was literally only a day’s work for most in Congress.

Instead of there being a separate bill for each agency of government that could have been carefully reviewed, all of the government was piled into a single bill. While that eliminates detailed review, it allowed narrow provisions that may only be understood months later. And it’s no way to cut spending.

Throughout the document, so-called “riders” were used to do a lot more than the bill might have seemed to cover. For example, the ban on exporting U.S. oil was lifted and some of Affordable Care Act funding was dropped.

The president’s victories were highlighted as being no defunding of Planned Parenthood and no ban on Syrian refugees.

In reality, President Obama won a major victory . To get out of the recession, he had wanted more government stimulus to push job creation. But, after one round, Congress refused him any more.

That left everything to the Federal Reserve. The only thing it could do was lower interest costs, promoting borrowing for investment and pumping more money into the economy. The Fed’s policy worked, but far more slowly than if there had also been a tax and spending element of the federal effort.

Early last week, the Fed decided that its low interest policy had done just about all the good it could and that it was now time to begin raising interest rates. Some investment leaders worried that it was moving too soon and the economy still needed help.

Though providing such help through increasing spending and reducing taxes had been opposed by many congressional Republicans, that’s just what a majority of them agreed to do in the Christmas tree legislation.

Without even a backward glance at their previous opposition, the GOP gave Obama just what he had wanted: increased debt financed government spending that would permit business and industry to hire more people and pay them more. Getting the effect may take time, perhaps allowing the next president to take the credit.

The Fed may now get the small amount of inflation it says is good for the economy, thanks to the Christmas tree bill. If that doesn’t boost the stock market, making investors happy, it’s reasonable to wonder what would.

The media generally congratulated Congress and the president for their display of bipartisanship just when most people were frustrated with partisan gridlock. When Washington powers agreed to act generously in the spirit of Christmas, it turned out to be easy.

Happy holiday. Some of your best gifts may not be the ones found under your tree.

Moderates: the disappearing middle in American politics

Where have all the moderates gone?

A recent survey, from a reputable source during a time of doubtful polls, found that 35 percent of voters consider themselves moderate. Some lean toward each major party, while 19 percent say they are truly independent.

Who is a moderate? There’s clearly no moderate political philosophy. Instead, a moderate is a person who sometimes agrees with conservative policies and sometimes agrees with liberal policies.

Maine Republican Sen. Susan Collins is widely regarded as a moderate, one of a vanishing few in the U.S. Senate. Her voting pattern proves the point.

One day in early December, she voted against a bill to prevent people on the government’s terrorism no-fly list from buying guns. On the same day, she voted against a bill to gut Obamacare and defund Planned Parenthood.

On the first vote, she aligned with GOP conservatives, and on the second, she lined up with Democratic liberals. That’s what gains her the moderate label.

But her willingness ever to oppose GOP positions may impose a political price. Though she has much greater seniority than many of her fellow Republican senators, she heads a much less influential committee than some of them. Perhaps she sees her Committee on Aging as being important to Maine, the oldest state.

Her position on the two bills reveals a problem for moderates. Instead of following a set policy menu, they deal with issues a la carte. That makes it more difficult to assemble a reliable moderate voting group.

The current Republican presidential campaign emphasizes the ineffectiveness of the moderates. In the unusually large field, possibly only two candidates – Ohio Gov. John Kasich and former Florida Gov. Jeb Bush – could position themselves as moderates.

If the polls are remotely close to accurate, Republicans are not connecting with either. Bush has moved to the right, repositioning himself as a conservative. Kasich is perhaps the only outlier from the field, apparently betting that he will pick up support as the GOP comes to recognize that he’s their best bet to win the general election.

It is widely believed that the nominee selection process in both parties is dominated by their extremes, hardcore conservative or liberal. Republican conservatives reject any candidate straying from complete loyalty to their positions, which may explain why Kasich is not catching on.

Why can the extremes take control of the process? After all, they probably do not account for a majority of party supporters.

The answer is the indifference of the majority. Whether people believe that nothing they do matters or simply don’t care about their government, most people do not participate in the caucus and primary process to select nominees.

The absence of most party supporters in the process leaves the opportunity for well-motivated, ideology driven extremes to capture control of the choice of the party nominee. In short, moderates don’t show up and total turnout remains small.

The process itself may sometimes favor participation by only small numbers. Take the Iowa caucuses, scheduled for February 1. Relatively few voters will participate in these caucuses, and their choice is far from certain to be the ultimate nominee. Still, the caucuses can provide candidates a big public relations splash.

The process in the Democratic Party seems less likely to be controlled by an extreme liberal element this time. Vermont Sen. Bernie Sanders wants to galvanize enough liberals to dominate the selection process. But most Democrats support former Secretary of State Hillary Clinton, who may come across as more of a moderate.

The general election is considered the great corrective to the faults of a nomination process that pays little heed to the supposed moderate center. While voters may not be enthusiastic about their options, they might support a candidate who seems closer to the center.

That could explain why Clinton, with lukewarm support by many Democrats, looks like a winner when compared with leading GOP hopefuls. And it may explain why Kasich and perhaps Bush hang on, hoping to emerge as the winning alternative to Clinton.

The success of Donald Trump and hardcore conservatives might indicate all of these calculations are wrong.

Suppose discontent with government and fear of terrorism have driven large numbers of voters to the right. If that were happening, then the country would shift from center-right policies to hardcore conservatism.

In that case, we could discover the moderate ranks in American politics have shrunk to near invisibility. And, if that is not true, the moderates’ influence depends on their showing up to participate in the political process.