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

 

Gordon L. Weil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Gordon L. Weil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simple truths about our politics

Gordon L. Weil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump indictment: the third impeachment

 

Gordon L. Weil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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