Archive for the 'political reform' Category

Speech Ethics

February 13, 2017
posted by Bob Bauer

The Senate’s invocation of Rule 19 against Senator Warren could not have been more curiously timed. Supposedly concerned to uphold senatorial debate standards, to keep out the nasty stuff, Senate Republicans disqualified Warren from further debate on the Sessions nomination because she read from Coretta Scott King’s 1986 statement opposing Mr. Sessions’ elevation to the bench. Meanwhile, the President routinely tweets out abuse of political adversaries, in the courts or (as in the case of John McCain) in the Congress.

Of course, the President is not bound by the Congressional rules and traditions. But that is the interesting question: if there are standards to be applied to democratic debate, especially to the remarks of senior elected officials, why should those standards be limited to legislative speech? And, if extended to executive branch speech, how?

It might be thought that standards of this kind are significant only in the management of a deliberative body: their function could simply be to avert fist fights on “the floor,” where debate takes place, or, short of violence, to keep order. There is more to them than just this functional administrative purpose. When the Senate censured Joe McCarthy in 1954, the politics were complex, but the Resolution noted his verbal abuse of adversaries. It cited his accusations that the Senate was convening a “lynch-party” against him, that a senior Member directing the Select Committee censure inquiry was “cowardly,” and that the Committee was acting as “attorneys-in-fact” for the Communist Party. The Senate applied the severe penalty of censure in part because McCarthy’s vicious speech violated “senatorial ethics” and "tended to bring the Senate into dishonor and disrepute."

This goal of protecting against institutional disrepute has been reflected for years in the ethics codes of both the House and the Senate.  See, e.g. S. Res. 338, 88th Cong., 2d. Sess. (1964]; House Rule XXIII Cl. 1 (“A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”) Members engaged in abusive and irresponsible speech are not only disregarding some housekeeping regulation, like a prohibition against bringing their dinners into the chambers: They are presumptively acting in violation of their personal ethical obligations. There is no reason why reckless, vituperative speech by executive branch officials would not bring dishonor and discredit to that branch of the Government.

Church Speech

February 6, 2017
posted by Bob Bauer

In a first step out on political reform (setting aside his executive order on lobbying), Donald Trump promised churches he would relieve them of the restrictions of the Johnson amendment on campaign activity. He didn't go into any detail.

But over time there have been different proposals for protecting religious institutions’ political speech. One of them is arguably sensible, while another, more aggressive reform of this nature is best avoided.

Attention began to turn more widely to this topic when in the Bush 43 years there was a suggestion that IRS was monitoring sermons and prepared to act against churches where it found campaign content in speech from the pulpit. A notorious case involved a sermon that was critical of the war in Iraq and included favorable comments about Democratic presidential nominee John Kerry and critical ones of his opponent George W. Bush. Nothing happened; the IRS backed off. But it remains the case that while the Service seems to have no particular appetite for regulatory action based on this kind of speech, it could, if it wished. And as the Bush/Kerry episode revealed, the issue can cut in either partisan or ideological direction.

That is one issue, and a reform has been advanced to address it. Its sole point would be to allow for speech in the ordinary course of communications by a religious institution. In 2013, an organization called the Commission on Accountability and Policy for Religious Organizations recommended that religious institutions be free to make communications "related to one or more political candidates or campaigns... made in the ordinary course of… regular and customary… exempt purposes," provided that the expenses incurred are de minimis. The exemption would apply specifically to sermons delivered "as part of a religious organization's regular and customary worship services."

Presidents and Conflicts of Interest

November 28, 2016
posted by Bob Bauer

The questions about the President-Elect’s business interests have so far revolved around those benefits he might enjoy from foreign holdings and transactions, and still more specifically those provided in part by foreign governments. It is argued that a constitutional issue arises under the Emoluments Clause barring any “person holding any office of profit or trust”, without the consent of the Congress, from accepting any gift from a foreign government. Some scholars contend that the Clause likely applies to presidents; others disagree.

But the attention paid to foreign source business income has left mostly to one side the larger question of the leeway presidents have to operate outside the conflict of interest rules all senior executive branch officials (other than the Vice President) have to follow. For example, presidents and vice presidents are not subject to gift restrictions. 5 C.F.R. §2635.204(j). They may accept any and all gifts from any and all sources (except, on the Emoluments theory, from foreign governments). The exception rests on the belief that considerations of etiquette and protocol require allowing a president to accept personal gifts.

Most presidents, most of the time, accept such gifts but only in trust for the United States. But the rule gives them the choice. And that choice in turn is governed by little other than a concern for appearances or, if the gift is proffered by a favor-seeker, by the wish to avoid liability for bribery. The only requirement is public disclosure: presidents must report once a year the gifts they are free to receive.

In other words, this is a rule buttressed by a norm: the rule allows for the acceptance of the gift, but the norm operates to limit the circumstances in which the president would normally accept a gift for himself.   The norm does all the work. Another example of a norm addressed to conflicts of interest, but in this instance operating through transparency, is the traditional release of tax returns. Mr. Trump declined to release them during the campaign, or any time prior to the conclusion of the audit now in progress. There is no rule; the choice is his.

So while the President-Elect overstates his view that Presidents are free of all conflict of interest rules--a president can be prosecuted, not just impeached, for bribery--he is not wrong that the rules don’t apply to the Chief Executive as they do to all other senior government employees.

David Rivkin and Lee Casey offer up a range of justifications for this presidential freedom from more extensive conflict of interest rules. They say that to attempt to regulate these conflicts will discourage wealthy people from running for office; they don’t seem to accept the proposition that someone seeking extraordinary political power might give something up for it and, if unwilling to do so, might be revealing something troubling about motivation or suitability. Or as Peggy Noon put the point in the Wall Street Journal: his job now is different and “it requires sacrifice.”

Reform and Mobilization

November 21, 2016
posted by Bob Bauer

The Brennan Center’s Daniel Weiner has called on the reform community to engage in self-examination and consider the changes that, in the light of the experience of this last election, are now due. He notes that money did not play the expected role, and that the role it did play, as in the case of Super PACs, underscores the imbalance between them and the political parties. He suggests that campaign finance reform could include additional liberalization of party financing. Weiner would proceed cautiously--he is not giving up on the Buckley regulatory model--but he and his colleagues at the Center have commendably tried to open up a wider, fresher discussion of reform alternatives.

But this may be the key sentence of his essay:

Finally, we should also be asking how campaign finance reform relates to the broader constellation of proposals to create a democracy that works for everyone. So many aspects of the 2016 election are deeply troubling, including documented voter suppression, the ongoing effects of partisan gerrymandering, and — at least for some — the fact that the winner of the popular vote lost the electoral college for the second time in under two decades. They call for solutions rooted in the same values of fairness, accountability, and inclusion that animate the strongest campaign finance reform ideas. It would be a great mistake to silo the latter from the broader push for a more just and equitable political system.
Weiner would have the reform enterprise be integrated--the campaign finance part would fit with the others. There would be no “silo,” in which, as one reformer once described another’s preoccupation with money-in-politics, campaign finance is THE thing. Campaign finance would have its place within a scheme of reform that is unified around the themes of fairness, accountability and inclusion. This is the shape of reform as Weiner envisions it in the “age of Trump.”

Missing from these otherwise sensible criteria for reform are the requirements of mobilization, of effective political action.   To insist that reform’s design must take into account the needs of political association and activism is not to consign to a lower rung, or to read out of the plan altogether, the values of "fairness, accountability and inclusion.”   But at a time when progressives are sobered by the looming contest over large questions of national values and policy, a reform compatible with the needs of an energetic politics seems fairly urgent.

Category: political reform

The State of the Political Reform Program, Post-Election

November 14, 2016
posted by Bob Bauer

With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?

1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.

The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.

2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.

The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.