“Checks and balances” become checks without balances

Americans think of our country as a special place.  American “exceptionalism” is a part of our national character.

But we are increasingly aware that something is wrong, that we have lost something.  That’s why a presidential candidate can claim that he will “make America great again.”

The American system of government is not working as intended and as it has historically.  Some presidential candidates target scapegoats such as illegal immigrants, trade deals and Wall Street billionaires.

The underlying cause may be that the traditional rules, even if informal, no longer apply.  Instead, they are bent, legally perhaps, beyond their ability to make government work.  Most people have allowed this to happen without protest or even much concern.  They may simply have missed what happened.

The system planned by the Founders has changed over time.  They paid little attention to the possibility of political parties.  Now parties not only exist but they are unable to compromise to make government work.

The veto is a good example of the problem.  Thanks to a major ideological split between Gov. Paul LePage and the Maine Legislature, even with a Republican Senate, the Legislature has just dealt with 32 LePage vetoes.  It overrode 20 of them.

Numbers this large are unusual.  Counting the 65 vetoes that the Supreme Court said he made out of time last year and many others, LePage almost certainly holds the modern record.

Battles between the governor and Legislature result from their inability to negotiate and compromise.  Above all, the governor insists legislators should accept his proposals without modification, while a legislative majority believes laws should originate with them.

At the federal level, President Obama has issued relatively few vetoes – only nine so far in almost two full terms.  All have been sustained.  But that’s not because of a good working relationship with Congress.

Republican congressional leaders worry that the Democrats would use the president’s vetoes, even if overridden, as positive talking points in their campaigns this fall.  And they want to avoid taking possibly unpopular positions in a veto fight.

The net result is that the GOP-dominated Congress will not pass many bills that Obama would veto.  The president even helps them when his legislative staff sends advance signals about his veto intentions. 

The veto process has become a show rather than part of the legislative relationship foreseen in the federal and state constitutions.  The resulting deadlock produces fewer urgently needed pieces of legislation.

Another fault in the operation of the constitutional system is the appointment process.

In Maine, LePage dodges putting the nomination of his proposed education commissioner before the Legislature, concerned the nominee will be rejected.  Instead, LePage gives him a phony, unconfirmed position, so he can run the department, and says that he himself will act as commissioner when necessary.  It’s at least questionable if that’s legal.

In Washington, the Republican-controlled Senate refuses to process important presidential appointments during Obama’s final year in office.  The GOP leaders hope a president of their party will be making nominations next year for confirmation by a Senate still under their control.

Meanwhile, a seat on the U.S. Supreme Court and two of the seven seats at the Federal Reserve go unfilled.  And, through a trick allowing the Senate to remain in session without recess, the constitutional process for temporary presidential appointments has been ended.

The filibuster is yet another political amendment of the Constitution.  Most votes are required to be decided by only a simple majority.  By insisting that 60 votes are required to end debate on any bill, the Senate in effect demands a supermajority for any legislation.  The filibuster is used hundreds of times.

As for the federal courts, judicial opinions have increasingly become a substitute for legislation with jurists routinely overruling Congress.  A judge’s political affiliation and ideology matter these days, more than legal expertise and independence.

At times, the Supreme Court openly makes political, not legal, judgments.  And, after all, it elected the president in 2000.

All of these actions have in common a desire to bend constitutional provisions, state and federal, to serve partisan purposes.  The original intent was to create a system of checks and balances, designed to prevent government from hastily making mistakes or approving the appointment of incompetents.

Now, constitutional mechanisms are used as partisan tools.  What may be legal under constitutions written in broad terms may not be “constitutional” in spirit.  Partisanship has led to what was a system of “checks and balances” among the three branches of government becoming simply a system of “checks.”

Political Thoughts 11 – The pundits will now explain the future

It looks like months of campaigning for the parties’ nominations are over.  Donald Trump and Hillary Clinton will be the major party candidates in November.

Each of them will have been selected by a process involving only a small part of the electorate plus, in the case of Clinton, by senior party officials who serve as something of a check on the process.

The media meanwhile gears up for the next stage in its engagement with fantasy.  The amateur pundits who make up the vast majority of those reporting and commenting on the campaigns these days can move on to promote obviously weak stories designed to sustain viewer and reader interest.

Remember where they have been.  Clinton-Bush as the likely contest.  Trump as a laughable but not serious candidate.  Brokered or at least open conventions looming.  Stop-Trump.  Cruz as a real alternative.  Decisions being made by billionaires.  Not once counting the raw number of voters in the selection process or even trying.  But believing the polling is authoritative so that when it turns out to be wrong, the story is amazing.

Coming soon: Trump has a real shot at winning.  Without that story line, what do they write about for the next six months?  You can only write about Senate and House races for just so long.

What the pundits want you to believe is that there is a scheme that is playing out, which they understand and can explain to you so you can avoid thinking for yourself.  In fact, a political campaign is like a living beast, unpredictable and whose behavior is influenced by events that have not yet taken place.

For Trump, he will face a candidate and a party that won’t go away no matter what he says, unlike the GOP nomination race.  For Clinton, she will face a freelance candidate who can and will say and do anything, a situation she has never faced.  Their reactions may be what matters.  Does Trump get more extreme or more conventional?  Does Clinton lose it or find a way to show she is more to be trusted?

And what about the business-oriented, traditional Republicans?  Do they stick with the party (probably most will) or realize that they should like Clinton for some of the same reasons as Sanders doesn’t?

A word about history.  Some pundits are analogizing Trump to the GOP’s Wendell Willkie in the 1940 campaign against FDR.  Tells you a lot about the quality of the punditry.  Willkie was a progressive Republican who was a class act.  He had no chance of winning.  What part of Willkie does Trump resemble?

The election?  Of course, anything can happen.  But one recent report noted that if Clinton won all of the states the Democratic candidate had won each election since 1992 plus Florida, she would be president.  That Democratic run includes the two elections won by Bush the Younger.

Political support disappearing for trade deals

Trade policy, often misunderstood or ignored, may be a major political issue this year.

Hillary Clinton, the likely Democratic presidential nominee, and Donald Trump, the likely GOP standard-bearer, take similar positions.

They say President Obama and previous presidents have gone too far in making international trade agreements.  It’s time to stop negotiating new ones or even unravel existing pacts.

Since John F. Kennedy was president, the U.S. has pushed for lowering trade barriers among countries.  Trade agreements, both worldwide and one-on-one, have been negotiated.  Trade has increased and national economies have become linked, supporting so-called globalization.

But trade accords have met increasing opposition, at least in this country.

Labor unions and others argue that foreign suppliers can compete successfully in the American market because they pay much less than U.S. employers.  Without doubt, jobs are outsourced to places like China and Bangladesh because their labor costs and working conditions are far below those here.

Trade deals are likely to throw some people out of work even while adding new jobs.  The federal government is supposed to provide “trade adjustment assistance” to displaced workers, but it has often done poorly.  Workers can feel they bear the burden of living with change.

Recently, after complaints about competing Canadian paper production, apparently government subsidized, Obama belittled the dispute, saying it would ultimately be compromised.  Since then, paper companies in Maine have been shutting down.  Jobs have been lost.

Even if new jobs are created by trade deals, it is difficult to calculate their net effect.  That makes it possible for opponents like Trump to charge that the U.S. comes out on the short end.

Beyond employment questions, environmental standards in Asia are far below those in the U.S., making production less costly there, but penalizing the quality of life.

Trump adds another point.  He sees an unfavorable American trade balance with another country as a defeat.  For him, trade is conflict, so that when its imports exceed exports, the U.S. loses.  He also links trade with immigration, playing on fears of anything foreign, especially Mexican.

The logical extension of Trumpism is complete American economic isolation or at least only entering into trade deals that are a sure bet the U.S. will come out ahead.

Clinton does not go that far, but somewhat amazingly for a former secretary of state, she chooses to ignore the political side of trade arrangements.  Most trade agreements are part of strategic relationships that are more than purely commercial.

Under pressure from Bernie Sanders, who is generally aligned with labor opposition to trade agreements, she has dropped her official support of the Trans Pacific Partnership and now opposes it. 

Clinton ignores the desire of Pacific Rim countries for a deal with the U.S.  These countries want to show an expansionist China they have a powerful ally.

Traditionally, congressional Republicans have supported new trade agreements.  In fact, the GOP more than the Democrats gave Obama a free hand to negotiate the TPP.  Now, reluctant to allow the president a political win, they are backing away from ratifying the agreement.

The combined resistance of Democrats and Republicans has finally led voters to focus on trade issues and increasingly to oppose new agreements, especially the TPP.  Unless the Senate ratifies the deal this year, it is likely to be dead.  China would have won this round.

A fact that is overlooked in this debate is that other countries are entering into trade agreements with one another.  New trade relationships, formed in the absence of U.S. participation, may displace American exports in world markets.  China can profit.

What does the American consumer want?  Does he or she want lower prices or to insist on better wages and environmental measures in other countries?

Even in the absence of trade agreements, some foreign goods are going cost less than their American versions, and people will buy them.  So the absence of trade deals does not mean the end of cheaper imports.

People have the right to be skeptical of promises to enforce better working conditions and higher pay in other countries.  When factories making goods for the American market collapse in Bangladesh, concerns about the value of trade pacts seem justified.

Trade deals would be more acceptable if they were accompanied by vigorous federal government action.  That’s made more difficult these days by political insistence on reducing its size and role. 

The TPP leaves real questions about U.S. enforcement of the agreement’s labor requirements.  And the government should do a better job to train and place American workers harmed by trade deals.

Political Thoughts – 10 Trump and Clinton head for the conventions

Yogi Berra was right that “it’s not over until it’s over,” but still Clinton seems to be there and either Trump will be there or we will see the most interesting political convention since the GOP in 1976.

Trump.  His momentum should get him enough convention delegates to avoid a convention war.  If not, he will have enough disgruntled supporters to devalue the nomination if it goes to somebody else.

He seems to sincerely believe that his style of campaigning is what will have brought him the nomination, so he will stick with it.  He can make this a campaign about women by continuing to attack Clinton because she is “weak.”  Not really a disguised code word and one that should get women and sympathetic men into action to support her.

Trump’s electoral problem is that he has attacked so many constituencies that it is difficult to see how those who remain unscathed can produce enough votes for him.

Clinton.  Her problem is her negative rating, though it’s not as bad as Trump’s.  That may seem small comfort, but, after all, an election is about comparisons between candidates.  Her negatives will be affected by the Justice Department decision on her use of the home computer, but otherwise, they will probably fade somewhat.

She threads a fine line.  She cannot go as far as Sanders to the left, probably because she is simply not that liberal.  That’s why the Republican business community, the backbone of the mainstream could grow to like her.  That explains the Koch consideration she gets.  It may not make her more popular with Democrats, but what’s a better alternative?

Sanders.  He is now running to influence the Democratic platform, and he will. Clinton would be wise to allow him his day.  If he doesn’t handle his opportunities carefully, he may have his activist organization after the campaign, but he will quickly fade.

As for his platform strategy, if you tested Democratic candidates for president and Congress on the content of the platform a month after it was adopted, most would fail.  Candidates have their own platforms, and party platforms (maybe like party organizations) mean little in practice.

The tone of the campaign.  Clinton is wise to appear “presidential” and willing to seek compromises. Leave the heated rhetoric to Trump.  Americans do expect a certain amount of decorum from their president.  So Clinton should remain calm. 

Also, she might not greet every audience with her mouth agape in feigned joy.  I know, she’s supposed to make you think she’s having a ball, just enjoying the dickens out of the campaign.  Recognizes friends in the crowd as if she’s surprised they are there.  Such artificial happiness only promotes the idea that she is not honest.  Nobody could enjoy campaigning that much.

Oh, BTW, it’s time for her to put together the proverbial truth squad.  Trump makes a fun target, far more vulnerable than she is.

Too early to talk about running mates, but not too early to think about it.

Religious issue tests Bill of Rights

People are supposed to be protected from an overly powerful government by the guarantees in the Bill of Rights.

While it was never intended to be a complete list of individual rights, it was written to curb the excesses colonial Americans experienced under the British king.

The Bill of Rights contains general statements of principle but almost no details.  Sometimes Congress and sometimes the Supreme Court fill in the details.

A current case illustrates how this works.  The First Amendment says the federal government cannot “prohibit the free exercise” of religion.  Under the Religious Freedom Restoration Act, it cannot force religious organizations, opposed to contraception, to provide health insurance coverage for it.

The Affordable Care Act requires such organizations to inform insured employees that they do not provide this coverage but that it is provided without charge by insurance companies.  Presumably, its costs are covered in the premiums charged to all employers.

Some say that even providing this notice forces them to support contraception and want the notice requirement lifted.

The Supreme Court has asked the organizations to consider simply negotiating insurance contacts without this coverage and notice requirement, leaving it to the insurance companies to inform their employees.  The government says it would agree if this arrangement ends all lawsuits.  

The Court has already found that, only when there is a “compelling” governmental interest, can the federal government override religious objections to a law.

For example, it ruled a Quaker must pay taxes, even if some of the proceeds support the military, because taxation is a “compelling” government function.  Jesus’ statement, "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's" was about paying taxes.

Such cases show that religious freedom is not an absolute guarantee.  Yet some disagree and believe that these rights are absolute.  They say that government cannot take any action to limit them.

That is the essence of the current case.  Can government take any action that would limit what a religious group considers the “free exercise” of its beliefs?

If the answer is that it cannot, then the Bill of Rights recognizes the authority of people outside of government to determine for themselves whether the law applies to them.

Does individual freedom overrule the public interest?  The issue arises with respect to several parts of the Bill of Rights.

After decades of arguing about the meaning of the Second Amendment, the Supreme Court decided that it protects the right of individuals to own and use firearms.  Some see this right as absolute, preventing the government from placing any limits on their use.

They ignore the Court’s decision itself, which states that, to protect public safety, government may place reasonable limits on this right.  The opponents of this conditional decision, who seek to have government refrain from any limits, say that the presence guns themselves will be the best protection of public safety.

Perhaps most famously, the First Amendment says government can make no law “abridging the freedom of speech.”  This is perhaps the broadest of the rights and one distinguishing the United States from most other countries.

The Supreme Court has decided that making political campaign contributions is “speech” and that, in effect, no limit can be placed on the amount of such contributions.  Its decisions have given enormous power to a relative handful of extremely wealthy people.

In an earlier First Amendment case, the Court decided that a newspaper may report negatively on public officials provided it does so without knowingly misstating the facts.  This was a major support for freedom the press.

But there are limits on freedom of speech.  The government may pass laws to allow average people protection from outright lies, though public figures get somewhat less protection.  And you cannot unjustifiably yell “fire” in a crowded theater, though the common belief the Supreme Court said so is not accurate.

In the current political scene, it has become more common to hear claims that the Bill of Rights contains absolute freedoms that government cannot limit.  The so-called “originalist” view of the Constitution wants to apply the text literally and keep government out of picture.

That’s one reason why the next appointments to a delicately balanced Supreme Court are important.  Ultimately, the Court decides on whether limits can be placed on rights and what those limits can be.

The next president will undoubtedly have the opportunity to appoint new justices to the Court.  Much depends on the outcome of the presidential election for the determination of major constitutional questions that can affect everyone.