Archive for the 'political reform' Category

The New York Times has carried two pieces in the last days on the Internet politics, each making a case for its contribution to degraded democracy. Michael Birnbaum writes about the influence of rightist websites in Europe as both the Netherlands and France head into national elections. Tom Edsall adds a thoughtful, more academic note, interviewing scholars and citing to various studies that generally reinforce a dark message about “democracy, disrupted.”   The Edsall analysis also takes on the question of whether this disruption plays favorites, helping more the left or the right, and he concludes as follows:

There is good reason to think that the disruptive forces at work in the United States — as they expand the universe of the politically engaged and open the debate to millions who previously paid little or no attention — may do more to damage the left than strengthen it. In other words, just as the use of negative campaign ads and campaign finance loopholes to channel suspect contributions eventually became routine, so too will be the use of social media to confuse and mislead the electorate.
This is a significant coupling of concerns about the uses of social media with two of the prominent planks in the campaign finance reform program. Edsall may mean that each disserves democracy in its own way, or that there is an interaction among these developments that is generally helpful to conservative, and inimical to progressive, politics.

What is also unclear is why these means are closely associated with a specified political end. For example, what is it about a “negative campaign ad” that is markedly more useful to the right-wing sponsor? There are times when the anger can be turned in the opposite direction, as Republican Members of Congress recently found in their town hall meetings; and this anger is finding expression through social media, on TV, and surely in the election to come, in negative campaign advertising. Those same angry progressive voices will be amplified only if the required funding is available. “Loopholes”--as some understand Super PACs or (c)(4) issue advocacy to be--will flourish on the left and right alike.

Political Reform in An Era of “Existential Politics”

February 28, 2017
posted by Bob Bauer

Rick Pildes asks whether in this time of "existential politics," when contestants for political power perceive the very "identity of the country… to be at stake," we might expect the steady degradation and eventual collapse of institutional norms. He is moved to this reflection by Judge Laurence Silberman's recent column on Jim Comey’s and Justice Ginsburg’s interventions in the 2016 political campaign. Judge Silberman charges each with disregard of norms, with having “bent with the political winds” in a storm. Silberman does not explicitly develop the theme of an existential politics, but Pildes rightly sees something like it playing in the background.

One other consequence of this brand of politics is the collapse of any agreement about the rules of political competition. For the existential warrior, these rules either cost too much--they just get in the way--or they require tighter alignment with self-interest. If, as Michael Gerson mockingly describes the mind-set, the nation is now in the midst of a “fourth turning, or maybe the fifth progression, or the third cataclysm,” or if the government threatens a turn toward fascism, there will be little patience in this fight for ground-rules that complicate the path to victory or successful resistance. As noted here, the progressive opposition may include campaign finance limits among its reform commitments, but how far can this go, if resources are thought essential to the project of stopping Trump?

The rejection of rules tends to be rationalized, and rationalization has been spreading. Last to go has been the acceptance for the need for disclosure; but it may be on the way out, as Republican and conservative critics argue that transparency requirements are devices that the administrative state has established for the surveillance of the political opposition. In this attack on disclosure, the President’s refusal to release his returns, while a rejection of norms and not of law, has put a fine point on the precarious position of transparency in the existential politics of the day.

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.”