Coronavirus kills one branch of government

Electronic legislative proceedings would revive 'checks and balances'

Gordon L. Weil

We have three branches of government – legislative, executive and judicial.

Except we don't. The coronavirus killed one.

The executive branch is fully in charge of the government. The courts are open to deal with the most urgent matters. Congress and the Legislature are shut tight.

While all three branches are equal and can keep a check on one another, constitutions assign the leading role to legislative bodies. They make the laws, setting the agenda and terms of government for the other two branches. They represent the people and can prevent any excesses of the executive. But not now.

The president and key executive personnel are at work. So is the governor and her officials. Federal and state courts are open and can operate. Federal courts have moved to “video teleconferencing” for many matters. Meanwhile, legislators are at home and the legislative halls are almost empty.

The reason is the national Covid-19 crisis, demanding rapid government action. The executive branch is compact, with most key players in a single location. It can react quickly. Though the courts usually do not need to act as rapidly, they can function when necessary, because most courts consist of a single judge.

To deal with the emergency, legislative bodies cede their oversight powers to the executive branch. They write blank checks.

At the the federal level, Congress authorized emergency moves to fund essential services and rescue the economy. At the state level, the Maine Legislature gave the governor what might seem, at other times, like near-dictatorial powers.

By these actions, the legislative bodies gave up any pretense of checking the conduct of the executive, much less limiting it. In a major emergency, it seems that “checks and balances” are among the victims.

To be sure, we cannot expect hundreds of legislators to “shelter in place” in capitol cities so they can promptly go into session. Nor can we expect them to crowd into legislative chambers, where physical separation is not possible, placing themselves in direct danger.

But neutering legislative oversight in time of crisis comes to modern America right out of the 18^th Century, when the Constitution was written on the understanding that the federal government would take a multi-month break every year. Obviously, that is no longer true.

If we have come to understand that legislative bodies need to meet almost year round, why can't that thinking also apply to emergencies? For much of history, there has been no practical way to do it.

But now there is. The internet was invented in the U.S. with Department of Defense funding. It opened the way to a new world of communications. Why can't the U.S. again lead the world by developing its use for legislative purposes?

Legislative bodies could meet using electronic means. All members can see and hear one another, whether in a legislative committee or the full body. Though it is not the time for routine legislation, committees could exercise oversight and consider emergency measures. Electronic voting is easy and can be kept secure.

In the 21^st Century, that would not be a “virtual” meeting, it would be the real thing. It's time to drop “virtual.” (Aside: It is also time to drop saying that the broad and rapid transmission of a single item means it is going “viral.”)

Critics could claim that there would be no real debate among members when they were voting from distant locations. It is difficult for anybody to keep a straight face in saying that. Just watch C-SPAN.

There is no debate, at least in Congress. Not a single member is swayed by what is said during floor debate. It's all stagecraft, designed to create content for the media back home. If anybody is swayed, it's when a member talks with a lobbyist. Or their staff assistant. Or through bilateral contact with a legislative ally.

In the era of extreme partisanship, most members follow the party line. That's what gives leaders so much power. And with well-defined ideologies, members know almost reflexively how to vote.

The development of the electronic legislature should be a product of the current crisis. Now, here's a suggestion that might validly come from Al Gore, burdened with the false charge that he claimed to have invented the internet. He was a House and Senate member and winner of the Nobel Prize.

Congress and the Legislature could elect a small, representative group of their members to remain in session. Instead of having a blank check, the president or governor would have to report to this group before taking extraordinary action. The group could either assent, negotiate or call the legislative body back into electronic session.

These changes can be accomplished through the rules legislative bodies adopt. It's time to update how legislatures do their business.

Partisanship, hoarding undermine unity in crisis

Gordon L. Weil

Americans like to believe we all unite to fight an external threat.

But it's not true in the COVID-19 crisis.

Start with the inexplicable absence of toilet paper in the supermarket. Because almost all of it is manufactured in the U.S., there's no shortage. But the shelves were swept clear of it.

That's hoarding. By buying far more than you need, so you will have more of a product much later, you deprive a neighbor who needs some now. Supermarkets have imposed rationing.

Some suppliers, even of medical supplies, engage in price gouging.

Or what about young people who crowded together in Spring break revelry? They mistakenly believed either they wouldn't get COVID-19 or their case would be mild. They have shown no concern for older and vulnerable people who may pick up the virus from them with dire consequences.

What about the mindless naysayers? They remind us that many people die from automobile accidents or the annual flu, so we should not get upset about COVID-19, which has until now claimed many fewer victims, though there is no known limit to the losses. Don't worry about its deaths.

There are good people. Bad behavior should not obscure the selfless acts by many people to help others. Health care providers accept enormous personal risk in around-the-clock battles to save lives. Many people shop for the elderly and check on the condition of the most vulnerable. That's the spirit needed in this situation.

In a crisis of this scale, the people turn to their governments. The time comes when elected leaders must step beyond everyday partisan politics to provide not only material leadership but encouragement and hope for all.

Not this time. Perhaps for the first time in memory, leadership that rallies all people has been absent.

Takes the CARES Act, the $2 trillion piece of federal legislation that is designed to rescue workers, companies and the economy from the threat of a major recession. Except for one member of Congress, it was passed unanimously by both houses.

CARES is basically a big government spending bill, the necessary bookend to the Federal Reserve's action to cut interest rates. The GOP had to go along with the essentially Democratic concept, because the economy demanded government support. Some Republicans disliked expanding the national debt by big outlays, but had no choice.

The bill was negotiated by Treasury Secretary Steve Mnuchin, on behalf of President Trump, and Senate Minority Leader Chuck Schumer, on behalf of the Democrats. Each side had to make unpleasant sacrifices to strike the necessary deal. If you want bipartisanship, this is what it looks like.

But when the bill, fully supported by both parties, was signed by the president, the only people surrounding him were Republicans. That amounts to trying to steal the credit for the compromise. Americans united to meet a national challenge? Hardly.

If there's one thing the former reality show host knows, it's how to steal scenes. His daily media briefings, even when he reads dryly from a prepared script, give him good television ratings, which he brags about. He wants to be seen as supreme crisis manager to boost his re-election campaign.

The Democrats allow a partisan Trump to dominate the media. If Joe Biden expects to be the Democratic candidate, where is he now? Or former President Obama, who could call for public action in response to the virus. Are Mike Bloomberg's billions only for his political campaign or could he help? At least Speaker Pelosi has reached out publicly.

Replacing the silent Democrats, New York Gov. Andrew Cuomo, not an immensely popular leader but one whose state is the hardest hit, holds an excellent daily briefing, which receives national coverage. Increasingly, he looks like the kind of competent, strong-willed person who could be the candidate called for by the times.

Aside from the domestic situation, it is evident that, without the U.S. as the leader of the world's response to COVID-19, there is no available alternative. But Secretary of State Pompeo spurned cooperation with what used to be America's closest allies, because he insisted they must agree to name the virus after China.

The result is that not only do the president and his aides fail to lead a unified America, but the U.S. fails to lead a unified international response.

The coronavirus and its effect on the economy are a costly tragedy. But so is the failure of the federal government to rally the American public and lead the world.

COVID-19 reaction boosts state government's role

States may rely less on federal government for public health, other policies

Gordon L. Weil

Dealing with the corona virus may be causing a political revolution.

The federal government cannot deal with the required all-out effort to combat the virus. It depends on state governments. When the crisis has passed, it's likely the country will find that the power of states has increased.

The states have always had the prime responsibility for public health and safety. But they have become dependent on the central supply of services and the greater funding found in Washington. Even now, many are virtually begging for federally supplied ventilators and emergency funding.

At the same time, governors are making their own decisions about meeting the crisis. State legislatures, included Maine's, have given governors almost dictatorial powers to take swift and broad action to allocate resources and mandate closures.

There really was no choice. Given the size of the country, the requirements for preserving health and safety must respond to local circumstances. A crisis may not be the same everywhere at the same time. Management is left to the elected leaders closer to threats.

Also, responding to health and safety emergencies requires armies of personnel – doctors, nurses and other hospital personnel, law enforcement, crisis managers. The federal government could never have been expected to maintain such staffs.

In this crisis, where the federal government might have been expected to supply masks, gowns, respirators and other critical supplies, it has failed. Instead, it has told the states that procurement is up to them with whatever help the federal agencies can provide.

More important than these issues is the obvious tension between President Trump and some of the states.

Until quite recently, Trump had continually tried to minimize the corona crisis. The health problems had led to economic setbacks, undermining the main support for his reelection effort. If people could see the Covid-19 situation as a mere passing flare-up, the economy could quickly recover.

The president tried to convince people that many die from the annual flu or auto accidents without disrupting the country and its economy. The fact that both could be controlled and limited make them sharply different from a virus that is uncontrolled and whose fatal spread is worldwide.

But governors are on the front lines. Some have seen cases mounting rapidly, including deaths. They could not obtain, either from the federal government or through their own efforts, enough tests, masks and ventilators to stop the increase. Maine gets 5 percent of what it requests.

The Maine CDC reports daily with hard data on medical and social measures relating to Covid-19. A federally endorsed model, said to be close to the one the White House is using, differs considerably from Maine's current baseline. That could call the federal forecast into serious doubt.

The fight against Covid-19 promises to be a long one, no matter how much people would like to believe that Trump's hopes and expectations can be achieved.

When the worst of the crisis has passed, it is likely that states will not fade back into purely subordinate roles to the federal government. The virus may have inoculated many states against excessive dependence on the federal government.

Beyond that, governors have had the experience of partisanship coming ahead of dealing with the crisis as one country. Washington was the first state hit hard by the virus. Speaking of Gov. Jay Inslee, who had sought the Democratic presidential nomination, Trump said, “ He's a failed presidential candidate. He's a nasty person. I don't like the governor of Washington,” so he had Vice President Pence talk with him.

Of the nation's governors, Trump said, “I want them to be appreciative.” It seemed like the federal government was doing them a favor in providing assistance instead of helping them take care of their state in the national emergency that he had declared.

The states' relationship with the federal government is coming up short. In part, that's because the states have allowed some of their powers, safeguarded in the Constitution, to slip to the federal government. The reason is simple: money.

The federal government can borrow and create money, neither which can be done at the state level. Politically, states have found it easier to depend on funds from the growing federal debt than on paying their own way to protect public health and safety. States have turned to the federal government for almost everything.

The Covid-19 crisis has shown states the consequences of excessive dependence on a federal government with different priorities than meeting their basic needs.

Congress could come up with more money to help states to deal with Covid-19. But that aid may not lead states to overcome their doubts about relying on the federal government.

COVID-19 Act unity hides deep partisan divide

Gordon L. Weil

Earlier this week, the Senate opened a session with a foul blast of partisanship.

Majority Leader Mitch McConnell discussed the day's schedule and Minority Leader Chuck Schumer responded. Next came a short break when no senator may speak. Sen. Susan Collins asked for agreement of all senators present, called “unanimous consent,” so that she could make a speech.

Schumer objected. Collins exclaimed, “This is unbelievable.” Another GOP senator furiously blurted out that what Schumer did was “b--- s--t.”

Schumer said he had thought the arrangement between the leaders was to proceed first with two routine voice votes, before any speeches. McConnell proceeded, and the votes were taken. Collins then spoke, blasting the Democratic position on the coronavirus recovery bill.

The rest of the day, one GOP senator after another shed sham tears about Schumer's alleged mistreatment of Collins, proclaimed to be the mild and moderate senator from Maine. Their comments reflected the extravagant partisanship that continued for days.

To top it off, one Maine news report later implied that Collins' statement was a comment on the process having bogged down in partisan bickering on the Covid-19 rescue bill, when it was about her having to wait five minutes to speak.

Given the seriousness of the coronavirus crisis, voters might expect that Republicans and Democrats would try to work together rapidly on a compromise. This was the time for expressions of bipartisan resolve.

Instead, senators staged their remarks for later partisan use. The Senate battles were really skirmishes in the presidential election. Each side was trying either to get its policies adopted or to create a platform for themselves and their presidential candidate to use later this year.

At the same time, senators were fearful of ignoring the pressing public panic and the need to protect the incomes of working people and struggling companies. While the White House, Treasury and Senate Democrats negotiated, others postured.

To end debate on a bill, 60 votes are required. That super-majority would mean that, on this legislation at least, bipartisan support would have to be achieved.

But from the outside, the negotiations on the legislation looked almost purely partisan. Based on a meaningless House bill, with the House out of session, the Republicans charged Senate Democrats with seeking wild add-ons in return for their votes. The Democrats charged the GOP with seeking to give a blank check to big business.

Any weapon to belittle the other side would do. Hence, the florid GOP defense of Collins over what was truly a minor matter.

The real reason why the Senate wasted valuable time in coming up with the needed help for the economy is that it is broken.

The Republicans hold the White House and are the Senate majority. The Democrats are the House majority and have enough votes to block Senate action on major bills. There is no center in national politics. Moderate politics seems to be dead.

The Covid-19 crisis has huge implications for public health and the economy. It requires joint action of the parties and clear, strong national leadership. Only the scope of the crisis has brought some limited cooperation. Given the political posturing, it's not likely to last.

Too much power is given to both parties' Majority Leader. Fortunately excluded from the negotiations, McConnell stirred panic, trying to get the Democrats to drop their demands for spending safeguards. An urgent response was more important to him than good public policy, even when spending $2 trillion was at stake.

The dictatorship of the Majority Leader could end any time a majority of senators decided they should share in control. Maine's bipartisan Legislative Council, which controls the state's House business, is a good alternative model.

Senators need to see themselves as equal members of a deliberative body and not simply as partisan soldiers whose main goal is re-election. Any 51 senators could seize power and set the Senate rules. Right now, it is erroneously believed that this option is available only to the Majority Leader.

The CARES Act on Covid-19 is not the last word. Congress must accommodate and manage basic changes to health care and the economy caused by the pandemic.

Despite the forced Covid-19 bipartisanship, divided government is proving to be unworkable. If the senators cannot play their role as the wiser heads in government, the solution may be left to the voters.

If the federal government continues to falter, the elections would need to provide a clear result. That's what happened in the most recent British elections when the Conservatives won a stunning victory, enabling them to act decisively.

With compromise almost impossible, whichever party wins in November needs to win big.

Census: Its links to Covid-19, seats in Congress, Maine statehood

Gordon L. Weil

Next week, we may find one small benefit in Covid-19.

On April 1, the nation's census is to be taken, and more people are likely to be staying home than would be normal. Because people are supposed to be counted by where they live, that could make the census more accurate.

The number people in the country are counted, as required by the Constitution, so that seats in the House of Representatives can be distributed fairly among the states. As the population shifts, states may gain or lose seats, though no state may have less than one.

The constitutional rule is that the census counts all the people, not only citizens or voters. The most obvious reason for this rule is that government affects everybody, whether or not they can vote for members of the House.

At the time the Constitution was drafted, women, children, and almost all people of African descent did not have the right to vote. But they were counted, though a slave counted then as only a fraction of a free person. Indians on reservations were not counted.

Today's census counts everybody, including foreigners, legal or otherwise, unless they are diplomats. The Constitution covers the rights of people, not citizens, so laws apply to everybody. Beyond that, the census influences federal government financial aid to states based on the number of inhabitants.

Every state wants as much influence as it can gain in the federal government, so the census, taken every ten years, is critically important. The House members elected in 2022 will be allocated according to the population counted next Wednesday. That allocation will last until 2032. Maine wants you to be counted.

How big is the congressional pie that will be divided? When the Constitution was drafted, George Washington insisted that districts should be as small as possible. He wanted to keep government close to the people.

There are now 435 seats in the House, a number that has not changed in a century. Meanwhile the population of the country has almost tripled according to the 2010 census.

Congress can change the number of House members, but it has refused to act. Some small states would lose influence in an enlarged House, so they resist change. Some worry that, if the House grew larger, it would be unmanageable. Added cost is a relatively small worry, because the cost of Congress is a microscopic part of the federal budget.

Each of the smallest states gets a guaranteed House seat. Because districts do not cross state lines, the allocation of seats among states must be rounded off. The result of both these factors is that some districts are far more populous than others. Right now, the Montana, with a single district, has close to twice as many people as one of the Rhode Island districts.

The problem could be greatly reduced, though not completely resolved, by a simple act of Congress. Each district could be made to have the same population as the population of the single-district state with the smallest population. In effect, that would eliminate the special weight given to the smallest states. The equal representation of states in the Senate would remain.

In that case, the House would increase in size by only about 110 members. Rounding would remain, but its impact would be reduced. A voter in Montana would count more nearly as much as a voter in Rhode Island.

State districts must meet the requirement of “one person, one vote.” Each state district has the same population. Enlarging the size of the House would ensure that rule was also applied to the country as a whole to the fullest extent possible.

The two most obvious results would be greater fairness and a lot of new faces in Congress. And enlarging the House would be a useful step in keeping Congress closer to the people.

The first census was directly relevant to Maine statehood, now celebrating its 200^th anniversary.

At the 1788 Massachusetts convention to ratify the Constitution, leaders worried that Maine delegates would reject the draft because it required a state's consent to the loss of any of its territory to create a new state. If Mainers opposed the Constitution on this point, Massachusetts might not have had enough votes for ratification. A majority of Maine delegates voted in favor.

That concern was a strong indication that all knew that Maine was on track to become an independent state.

Just two years later, in the 1790 census, Maine was counted separately from the rest of Massachusetts. Vermont and Kentucky, also census districts but not states, were similarly counted separately. All three became states.

It was up to Maine and Massachusetts to make the split. Maine decided to leave the Bay State after Massachusetts failed to help against the British invasion in the War of 1812. Massachusetts was willing to see Democratic Maine depart, reducing the threat to Federalist Party rule in the Commonwealth. In 1820, Congress used Maine, a free state, to balance Missouri, a slave state, in enlarging the Union.

The census plays a central role in America's history and government. It's important for you to be counted so you will count in that history.

Fixing coronavirus impact requires major government action

Gordon L. Weil

The coronavirus pandemic is illustrating a basic truth about the U.S.

We are poor at long-term preparing and better at short-term reacting.

The country was unprepared for dealing with a worldwide public health crisis. Even if other countries were similarly unready, that's no excuse for a country that considers itself and is widely considered by others to be the world leader.

The principal reason for lack of preparedness was the popular belief that the federal government is too big and people ought to be able to keep their own money rather than turning it over to a faceless government that independently follows it own agenda.

When the U.S. House of Representatives voted 363-40 for an economic stimulus package to deal with the virus' effect, one member opposed it because it would "expand government massively." In fact, it increases the size of government little, but it would be a major increase in government spending.

The basic function of any government is to protect public health and safety. But that takes money. Even worse, from the viewpoint of opponents, it needs funding before there is even a problem, when people would rather keep the money in their own hands. Why spend money on a police force, when there's no crime?

A variation on this theme was President Trump's initial focus on the stock market and, indirectly, on the economy. He favored leaving potentially ill people stranded on a cruise ship rather than bringing them ashore for testing and treatment. At home, they would run up the count of those affected, potentially harming the stock market.

Then, the president complained about the inadequacy of federal procedures to deal with the new virus, implying it was the fault of his predecessors. By now, he had been president more than three years, so if there were a preparedness problem, it could have been fixed on his watch. Instead, he proposed spending cuts.

Meanwhile, much of the rest of the world faces similar problems. For a century, the world has looked to the U.S. for leadership in a global crisis. This one gives the U.S. an opportunity to recover that role, work with Europe and demonstrate its superiority to the Chinese regime.

If any proof were needed of a panic, people had to look no further than the stock market. Share prices are supposed to be forecasters of the future economy. If they are to be believed, a recession seems inevitable.

How can government leaders prevent panic? Merely counting gross numbers of tests and respirators is not the path to panic's end. They need to informed, honest and complete in their explanations. That creates a sense of confidence and reduces harmful rumors.

Having taken credit for the run-up in stock prices, he worried that his political fate could be undermined by their collapse. In minimizing the crisis, he failed to understand that he would not be held responsible for developments that nobody could control. He pushed for lower interest rates and easy money, and the Federal Reserve obliged him.

Then, Trump made a major course correction. He began talking about the market being secondary to controlling the spread of the virus. He talked with the nation's governors. He stopped blaming his predecessors.

He even praised the media. In fairness to him, some of them seemed intent on tripping him up. In fairness to them, they did not report fake news.

Above all, he has backed a huge economic stimulus, contrary to the usual GOP position and closer to the Democrats. But massive new spending and creating more money will add to an already large national debt and fuel inflation. Eventually, there must be a tax increase, but the bill will be paid long after the presidential election.

The stimulus should be targeted at relieving economic pain and preserving key industries when their revenues fall to the point they cannot pay workers. Many of the opponents of "big government" now recognize that only the government has the economic power to help.

The crisis will have an impact on the presidential election. The question will be whether it has educated people that they are, in fact, choosing how to spend their own money when they elect leaders to use tax revenues in preparing to meet possible future needs and crises.

The Democratic proponents of increased government action for dealing with the long-term effects of this and other problems are not "socialists." In fact, much work can be carried out by the private sector, as in the current development of a coronavirus vaccine.

Without understanding that we must devote more resources to being better prepared, the coronavirus crisis would serve mainly as a sign of worse things to come.

States play major role in coronavirus crisis; emergency responsibilities could grow

Gordon L. Weil

In February, President Trump met with the National Governors Association. During a long and rambling session, including much praise for his policies, the president spent less than 20 seconds talking about the coronavirus. He found no need for any state action.

His full remarks: "Now, the virus that we're having to do – you know, a lot of people think that it goes away in April with the heat – as the heat comes in. Typically, that will go away in April. We're in great shape though. We have 12 cases – 11 cases and many of them are in good shape now."

A month earlier, clear warnings had been issued by qualified scientists and in the media about the outbreak in Wuhan, China, of a new viral illness. The world was familiar with earlier virus outbreaks that had been taken seriously.

The World Health Organization had announced that the coronavirus was a “public-health emergency of international concern.” Trump had already shut down entry for people from China, though American citizens were admitted.

As part of a clear change in his approach to the crisis, on Monday Trump had a conference call with the governors. He was nonpartisan in tone and recognized they would need to take strong action of their own,

While it was not pleasant to dwell on the possible effect of a new viral strain, Trump had missed an unusual opportunity to mobilize national action. In a country as vast as the U.S. and with a communicable virus, getting the states involved in reacting along with the federal government would have made sense.

It still does. On Monday, Trump had a conference call with the governors. It was non-partisan in tone. Some governors were reportedly surprised that they were expected to act rather than waiting for the federal government to direct and support them.

The NGA had failed to use the opportunity to consider the threat from the virus and even to organize a regular interstate contact network. The states are frequently pushed out of the picture by the federal government, but this time was different. States may have grown accustomed to a subordinate role.

To contradict the president's original, optimistic report would have risked making the issue a part of the political campaign. The NGA tries to remain as non-partisan as possible. Still, the organization might have provided governors a briefing by a scientist.

At least, then, states might have reacted earlier. Upon returning home, governors could have checked on state preparedness for a virus and if there was anything else they should be doing. Instead, many accepted the president's reassurance that the virus was no big deal.

Did local journalists question state government officials about planning for the virus? They, too, needed to get more actively involved. Regular, complete and accurate reporting on a spreading virus is essential. Local news could focus best on matters close to affected people.

Governors are close to the concerns of people in their states. They can choose on their own to cooperate across state lines. State powers to deal with threats to public health and safety are legally greater than the powers of the federal government.

Gov. Mills declared a state of emergency, giving her almost dictatorial powers. Her major announcement received routine news coverage on local stations. Interrupting regular broadcasts for her full statement would have been justified.

The priorities of the federal government may differ from various state interests. Governors need to act to meet their own needs and not lean too much on the federal government. Trump now says they may be better at purchasing supplies than the federal government. They may be able to cooperate with one another, reducing costs and sharing experiences.

The Maine statute covering a declaration of emergency contains a major section on energy emergencies. The original version of that section was swiftly adopted by the Legislature when President Reagan abruptly ended almost the entire federal role.

The law grew out of actions previously considered by the NGA. At the time, Maine chaired the NGA energy committee (disclosure: I represented the State.) and focused its attention on energy emergency planning. The NGA could learn from that experience to promote state health emergency planning.

The American political system is deeply divided. No matter what happens in November, bitter conflict is likely to survive, undercutting federal action. Most people recognize that the post-coronavirus world will be different. Part of the change may be an increased state role.

The coronavirus reaction, with a large part of the responsibility finally coming back to the states, is a message that individual states, with the NGA as their forum, need to adjust. They should expect to meet public needs and priorities increasingly on their own.