Minnesota’s Broken Transportation Funding System

Note:  This blog appeared as my regular column in the December 22, 2014 edition of the Capitol report (Politics in Minnesota).

    Not only is Minnesota’s infrastructure in badly need of repair but so is the system set up to pay for it.    But it is not just Minnesota; the entire process for how America pays for roads, bridges, and other forms of infrastructure is vastly outdated, reflecting a carbon-intensive consumptive model of the world.  For that reason, whatever the Minnesota legislature likely does this session when it comes to infrastructure and transportation funding, it will be outmoded from the start.
    The 2015 legislative session is one that Governor Dayton declares is supposed to be about infrastructure and  transportation funding.  Everyone thinks this means road, bridges, highways, and perhaps mass transportation.  But infrastructure is more expansive than that.  It should also include water and sewer lines, aging runways for airports, and even broadband internet access.  All of these are just as important and decrepit as the roads we drive on.  Proof of the need lies not just in conjecture but studies by the American Society of Civil Engineers (ASCE).
    Every three years the ASCE releases a report card on America’s infrastructure.  The 2013 report card graded the United States a D+, noting a needed investment of $3.6 trillion by 2020 to repair the existing infrastructure.  This does not include new construction but simply maintenance.  The maintenance includes not just roads, bridges, and sewers, but also investments in parks, hazardous waste treatment, dams, the energy grids,  rail lines, and the many nuclear power plants that should have already been decommissioned but whose life is being pushed to dangerous levels.  We have been living off  of our parents and grandparents investments for too long and it is time for us to pay our fair share.
    Minnesota does not escape from the infrastructure deficit.  There are 1,500 bridges, 10% of the total, which are structurally deficient or obsolete. The state has 14,500 miles of roads of which 11% are in poor condition.  The parks need $375 million in investment, and $7.4 and $4.1 billion respectively are required to upgrade drinking and wastewater facilities respectively.  Overall, the estimate is that the poor quality of the roads, and bridges alone cost drivers annually  in Minnesota an extra $1.2 billion.
    So what should we do?  Ignoring the needs is not an answer.  This is what the Ventura and to a larger extent the Pawlenty administration did.  A second option touted by the Republicans is that bridges and roads can be fixed without new revenue–we just need to readjust current priorities.  That option too is like believing in the tooth fairy.  The $1 billion dollar budget surplus, even if real, is not enough to pay for much.  Cutting spending from some other area begs the question–where?  The state has only just paid back K-12 and it still could use more money, especially to fix aging schools.  From high education?  Go talk to college students and parents about tuition.  From health and human services?  Go talk to our grandmothers in nursing homes or sick poor people sitting in emergency rooms.  Saying that you plan to shift priorities essentially means you are forcing a choice between roads or early childhood education. Both are important.  Finally the debate at the capitol  will also center around roads, bridges, and mass transportation, mostly ignoring the other infrastructure needs in the state. 
    Had the Republicans not taken control of the Minnesota House, Dayton and the Democrats  would have probably proposed raising the gas tax again.  That option is still on the table.  At best  this idea is a short term quick fix, but it is not viable any longer as a solution.  Nationally, the Federal Highway Transportation Fund is the main way to pay for roads and bridges.  It is based on a gas tax similar to what Minnesota has.  But the federal trust fund is insolvent or at least unable to generate the money needed.  Why?  Several reasons.  First the fund is a tax based on the number of gallons of gas people drive.  As cars have become more fuel efficient fewer gallons of gas are sold.  Second, people are actually driving fewer miles; this is especially true with Millennials who are less likely to own cars or who are increasingly living in the city and not commuting from the suburbs.  Finally, development of alternative fuel vehicles and mass transportation options are reducing  use of gas.  Overall, carbon taxes to pay for one aspect of our infrastructure needs is an aging funding  formula that no longer works.
    The worldwide collapse of oil prices is a mixed blessing.  Great for consumers on the one hand, but on the other it makes it difficult to investment in new energy technologies.  Short term the lower prices mean that the Bakken oil fields will become economically inefficient and cut production, or that some consumers will buy bigger cars and drive more, therefore using more gas.  All this is short term and does nothing to address the longer term trends impacting transportation funding. 
    More creative solutions are needed.  Economists have suggested taxes on miles driven, or  a variable tax that adjusts with the price of gas.  Others have even suggested more toll roads.  One could also scrap the fuel tax entirely and shift it to income or other consumption fees.  These are possibilities for Minnesota, although some such as toll roads are hugely unpopular and probably regressive.   Nationally, eliminating the tax breaks for carbon-based companies and putting at least part of that money into infrastructure is an option.  Still others have talked of privatization, but the track record with this option too is mixed.
    This column may not be able to offer the right answer, but it can say that simply doing what Minnesota has done for the last 30 or more years is the wrong solution.  Now is the time to revisit from scratch the entire funding system for all of Minnesota’s infrastructure needs and not just for roads and bridges.  New sources of investment are needed and they must reflect the changes in how people consume resources.
   

Tinker, Tailor, President, Spy: American Politics at the End of 2014

The November 2014 elections already seem ancient history.  Yet in barely seven weeks a host of major events have transpired, raising interesting questions about Barack Obama and the future of American politics, both short and long term.  Let’s review some of them and see what they potentially mean.

The End of the Cold War...Finally?

 The Cold War is over. Long live the Cold War!  These are the sentiments best captured by two events this past week–Obama moves to normalize relations with Cuba and the president threatens action against North Korea for hacking SONY.  Both events

Cuba and North Korea are perhaps the two last iconic symbols of the Cold War.  They conjure up images of the Bay of Pigs, the Missile Crisis, and a divided peninsula and war that would never end.  The two countries were supposedly the last two communist countries standing, and they both were surrogate grounds for the conflict between the US and USSR.  But at least in the case of Cuba and  Castro, it also represented a host of other rumors and conspiracies about the assassination of JFK, the FBI, CIA, and spying.

We embargoed Cuba for 50 years with no avail. No real good came of it and in fact one could argue that the embargo and US politics toward Cuba did more to hurt America’s relations with South America than help it.  It also meant that we had little leverage with Cuba when the inevitable day came when the Castros were no long around.  Obama’s move was smart–it represented or reflected the new realities of the world.  The generation that wanted to maintain the embargo is largely dead or gone (keep that in mind Senator Rubio) and Cuba is no longer a front line for the Cold War.

North Korea is different.  It is no longer the surrogate struggle between the US and USSR.  It represents a new type of battle–cyber-terrorism.  There is an old adage that says the most countries  are militarily prepared to fight the last war. The same is true with the US.  We still think of war and terrorism as the use of bombs and bullets or of physical invasion of one country by another with troops, planes, or even drones.  Think of terrorism and we think of 9/11.  But that is old thinking according to Richard Clarke who in Cyber War points out how vulnerable the US is to cyber terrorism and also how badly prepared we are to fight it.

The US may be one of the most wired and computer connected societies in the world.  Such sophistication means there is a lot to hack–anywhere from official government defense sites to power plants, trains, planes, financial institutions, and private companies such as SONY.   Clarke argues we are hackable, that are defenses are poor, and that the US is overall ill-prepared to fight back.  The terrorism is what happened to SONY and that it what the future 9/11s will look like.

Obama has vowed action against North Korea but options are limited.  Very little of Korea is computerized so points of vulnerability are fewer.  We have little trade with that country and few think that the president is prepared to deploy old-fashioned arms against it.  For now there is a standoff.

This is the new Cold War.  But this is not the only part of it.  The new Cold War is the on-going battle against ISIS.  And the new Cold War is how the Ukraine has become a symbol for what looks like a lingering or rekindling of the old Cold War between Russia and the United States.

The Lost Soul of American Politics

The on-going stories of race and policing in America and the Senate CIA torture report together raise troubling images about America, especially when one considers the reactions to both.  They paint a partisan and racially divided picture about the use of force against citizens and non-citizens around the world.   Collectively, they also question the moral legitimacy of the US.

One of the defining characteristics of America–or at least Americans like to believe–is that we are different and that we embody a set of moral principles that distinguish us from the rest of the world.  This exceptionalism–America as the shining city on the hill-gave us moral authority over the rest of the world.  Yet police violence and torture of prisoners destroy any credence in that exceptionalism.

There is also something wrong with the law that sanctions repeated police use of excessive force. I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations. It is not easy to win these claims. The law and the public favor the police. Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.  Conversely, I remember once doing a WCCO radio show years ago when news of torture fist hit the news.  I explained the Geneva Accords on treatment of prisoners and then took calls.  Repeatedly military vets called in to condemn torture declaring that they learned that if we tortured they (the enemy) would do the same to us or that we would be no better than them.  No surprise that John McCain was one of the few Republicans to condemn the CIA.

My point here is that the Senate report itself was not a surprise.  We have long since known that torture does not yield good information.  Nor should we have been surprised that the torture existed.  We have known that for years.  The real surprise is how some such as Dick Cheney seem completely morally tone-deaf and, to a large extent, how Barack Obama seemed to distance himself from the report.

A New Obama Presidency?

For a president who was supposedly rendered irrelevant by the 2014 elections, Obama is perhaps finally showing that there is still life to his presidency.  Yes he blew it on the Senate torture report, and ISIS, and on Syria.  But increasingly his moves on immigration and Cuba look bold.  While too much of his first six years has been marked by timidly, there is a glimmer of hope for progressives that his final two years will not be marked by constant capitulation to the Republicans.

However, there are still nagging doubts about his presidency for many on the left.  What will he give away to protect Obamacare or make it look like he is a compromiser?  The mistake the progressive  made in 2008 was to think he was progressive.  He was compared to George Bush but not compared to many other Democrats.  Obamacare was a Republican idea he embraced.  Obama was or became  a Wall Street candidate who took more money from the too big to fails than any other candidate in history.   Obama has done more to kill off campaign finance reform and limit in politics than any candidate in history.  Yes he protested Citizens United but he has raised more money than any other presidential candidate in history.  He was the first to opt out of the presidential voluntary public financing system, and he just signed a bill dramatically raising contribution limits to political parties.  His tenure a president will be footnoted as the one where money took over politics.

Start Your Engines

The Iowa straw poll is eight months away and the Iowa caucuses are barely 12 months out.  The 2016 presidential race is upon us.  All speculation is on Clinton v Bush, but not so fast.  But are running with a sense of inevitability but both are candidates with tired old names who may no longer  represent where the parties are.  At this point it is equally probable that either or both of them get their party’s nomination, but it is equally probable they do not.  Clinton has a better chance given a weak Democratic field, but a serious challenge from the left (almost anyone for the Democrats will be from the left) could change the equation for her.  For Bush, there are many other potential rivals such as Rand Paul who excite the base more than him.  Finally, both Clinton and Bush have many liabilities that could be exploited.  Long records in office give opponents lots to attack.

What We have Learned from Michael Brown and Eric Garner

Something is wrong with the law if those entrusted to enforce it repeatedly violate it.  This is the troubling story of  race and Michael Brown and Eric Garner, and police brutality in Cleveland, Ohio.  But these three examples raise even more profound stories about the role of the law in a democratic society regarding whose legal norms are enforced and how.  It is the story of legal legitimacy.
    W.E.B. DuBois' 1903 The Soul of Black Folk declared "the problem of the Twentieth Century is the problem of the color-line."  Forty years later sociologist Gunnar Myrdal's 1944 The American Dilemma echoed that theme, contending that African-Americans were largely excluded from the promise of American democracy because of Jim Crow and racial segregation.  Rosa Parks sitting at the front of the bus, the Supreme Court's 1954 Brown v. the Board of Education, Martin Luther King, Jr.'s  march on Washington, and the civil rights legislation of the 1960s supposedly ended this exclusion, with the 2008 election of Barack Obama proving we had entered a post-racial world.  Race, especially as it intersects with class, remains as salient and divisive  an issue as ever.  Surveys point to very different reactions among Whites and people of color when it comes to judging Ferguson and police behavior in general.
    But it is not just about race. Talk to feminists and women’s activists who contend that the law embodies a male perspective.  From issues of rape, sexual harassment, pregnancy,  disability, and job discrimination, to the persistence of women making 77¢ on the dollar compared to men, the law continues to treat the two sexes differently.  Or consider class.  One need not recount the plethora of evidence demonstrating the gap in wealth and income between the rich and poor in the United States is at record levels for the last century.  The law favors the affluent anywhere from their ability to hire good lawyers or to make excessive political contributions.  Not too many rich people get the death penalty or see prison time for their crimes. The current Supreme Court seems hellbent on turning corporations into full-fledged citizens and it is blind or deaf to the plight of the poor.  The law equally appears to allow the rich and poor to sleep  under the bridge.
    There is also something wrong with the law that sanctions repeated police use of excessive  force.  I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations.  The course practically taught itself with examples of police behaving badly–including in Minneapolis alone.  It is not easy to win §1983 claims.  The law and the public  favor the police.  Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.
    What all of these stories have in common is that many do not view the law as legitimate.    In a democratic society such as the United States legal values should be widely shared, equitably enforced, and obeyed by all, including by those who enforce the law.  What we have learned Michael Brown and Eric Garner is that the reality is far from what we would hope.

The Immigration Reform Trap (Or how the GOP took the bait)

So Obama finally showed some backbone and did what he should have done before the election–he acted on immigration.  Had he done this before the election as he said he would (if Republicans did not act) then maybe more Hispanics would have voted for Democrats and the November results would have been different.  Now we see Republicans engaged in a faux act of anger, declaring that they will get even.  The Republicans should be grateful that Obama acted–it takes immigration off the table without Congress having to act, or not act, and therefore it removes a thorny problem for the GOP.  But foolishly and predictably the Republicans have protested, only guaranteeing that they will continue to guarantee that Latinos vote for Democrats, perhaps for the next generation.
    Republican anger belies they fact they if they do not like what Obama did they can always pass legislation on their own regarding immigration.  It’s called legislating.  Instead they plan retaliation, again a predictable and foolhardy  response that will only ensure that Democrats will be able to make the case against the GOP Congress in the 2016 elections.  Their reaction also provides justification for why they do not want to act responsibly-- they can claim that they will not compromise with the president on anything because he acted when they refused to. Kind of like taking the bat and ball and going home if you do not like how others are playing the game.  I think one calls this childish.
    But there is something more curious here–why the refusal to change immigration laws? Why the fear of illegal immigrants or undocumented aliens? In general, especially in tough economic times, the argument is that immigration and immigrants take jobs away from Americans and serve as a drain on the economy. Illegal immigrants or undocumented aliens are often singled out as competing against American citizens for jobs or that they cost taxpayers money. There is a belief that the benefits of citizenship, the free schools, and other programs found in the United States operate like a lure to attract illegal immigrants to the United States.  Allowing them to work in the United States, get a driver’s license, the availability of schooling, health care, and citizenship for children, or even lax enforcement of immigration laws, sends a signal to them that they are welcome. Thus, undocumented aliens flock to the United States and something needs to be done to stem this invasion.
    What is the reality?  Are immigrants a net drain on the economy; specifically, are they a bigger drain on taxes and public services than they are overall contributors to the economy? Second, immigrants are depicted as taking jobs away from Americans. What do we know about both of these claims?
    First, while acknowledging that immigrants may in some local settings or jurisdictions place some short-term significant burdens upon public services, overall they are net contributors to the economy. Several studies substantiate this point. The 2005 Economic Report of the President (produced under a Republican president) provided a detailed analysis of the impact of immigration upon the United States economy. The report noted that they as a group had up to a $10 billion net positive impact upon the economy. The report noted, for example, that while immigrants may be more likely than native born Americans to be on public assistance, the “net present value of immigrants’ estimated future tax payments exceeded the cost of services they were expected to us by $80,000 for the average immigrant and his or her descendants.”  However, with changes in public assistance laws, that figure had been upped to $88,000. While better educated immigrants (high school degree or better) definitely reflect this contribution, even among those not as well educated, the gains from them and their descendants’ productivity nearly, if not totally, offset the costs they impose upon public services that accrue to state and local governments. Finally, the president’s report also provided other documentation regarding the impact of immigrants upon the economy. For example, it noted that immigrants paid Social Security taxes on income of $463 billion dollars. Moreover, because illegal immigrants cannot collect Social Security, it is likely that immigrants overall pay more into this government program than they receive from it.
    In addition to the President’s 2005 report, other studies have noted the net economic benefit of immigrants to the United States. A 1997 National Academy of Sciences study found several net benefits associated with immigration, including a $10 billion net positive impact on the economy. Brad Edmondson’s “Life Without Immigrants” found that: “Illegal aliens in prison cost about $471 million per year, and they consume about $445 million more in Medicaid funds. But these costs are offset by about $1.9 billion in taxes paid by illegals and billions more in consumer spending.” Furthermore, the National Academy of Sciences, President’s Report, and the Edmondson study, all indicated that younger workers provided for important sources of productivity that also served the economy well. Overall, these and other studies clearly contested the myths that immigrants were a drain on the economy.
    In general, broader studies on immigration in the United States also confirm that there is a net benefit of immigrants to the economy. They generally pay more in taxes than they consume in public services. They have provided critical payments to Social Security to help maintain its solvency. Heidi Shierholz  in Immigration and Wages: Methodological Advancements Confirm Modest Gains for Workers found that even native US citizens have seen modest gains in terms of wages as a result of immigration. More importantly, California, Florida, New York, and Texas, the states with the highest immigration, seem to have particularly benefitted from it. Others reach similar conclusions about the impact on workers while noting that the granting of amnesty to illegal immigrants has benefitted the economy and increased tax revenues to the United States.
    The second criticism leveled against immigrants is that they take jobs away from American workers or they negatively impact wages. Again, several studies refuted that. For example, the National Academy of Sciences study found the wage impact to be negligible, while the President’s Report found little impact on wages of Americans. The report also noted and dismissed the argument that immigrants displaced American citizens in the labor market. Instead, they often filled labor gaps abandoned by others, such as farming and agriculture, and they definitely constituted a new source of productive labor particularly at a time when the size of the labor pool from other workers had disappeared.
    In addition to the above a Pew Hispanic Center  study reached similar conclusions. It compared the economic growth in selected states with high versus low immigration and found no differences in economic growth or in its impact on the labor markets. It also found that there was in fact in 12 states a positive correlation between the growth of immigrant and native-born workers. By that, there was no evidence that in states where more immigrants entered the labor market it depressed the entry of others into work. Finally, even among immigrants who were young and lacking in education, there was no indication that they directly competed against and hurt native-born workers with similar background.
    In sum, the evidence that immigrants are financial drains on the economy and that they take jobs away or hurt the wages of native-born workers is simply false.  Attacking immigrants and blaming them for society’s problems goes a long way back in American history.  Republican refusal to act on immigration may in part be based on the xenophobic  attitudes of its base, but the political calculus in taking such a position is bad politics.  Obama set a trap for Republicans  with his action and the GOP has taken the bait.

Getting It Wrong: The Myth of Massive Ticket-Splitting in the 2014 Minnesota Elections

I am not sure if it is bad math or bad journalism, but contrary to popular accounts, it is highly unlikely that 450,000 voters in Minnesota split their votes between Dayton or Franken at the top of the ticket and a Republican legislator further down the ballot.

On November 6, 2014,  in a Star Tribune article by Rachel E. Stassen-Berger and Glenn Howatt where they analyzed the results of the 2014 Minnesota elections, they sought to reconcile the difference between Democrats winning statewide and Republicans winning the House.  They asserted that of the estimated 1,992,989 Minnesotans who voted, effectively 22.5% split their ballots.    Conceptually and empirically, this is just incorrect.

First, keep in mind that no one can actually look at the individual ballots cast and therefore the Star Tribune’s article is purely conjecture.  Conceptually, asserting that between a fifth and a quarter of voters split their ballots is unlikely.  The political science literature is overwhelming in finding that partisan identification is a major driver and predictor of voting behavior.  This has been true in the nearly 60 plus years of research into voting behavior.  It is even more true today as the evidence mounts that voters now are more polarized and partisan in their voting than ever before.  This is even true in Minnesota.  Every since the Wellstone plane crash and memorial service there is powerful evidence of partisan voting, as evidenced by the close races or recounts in the 2008 senate and 2010 gubernatorial races.

Yet one might argue that Minnesota is different.  With about 20 or so percent of the electorate not listing themselves as a Democrat or Republican perhaps one might say this high percentage of independents accounts for the split ticket voting.  It might account for a small percentage of this, but there are similarly high percentages of independents across the US with little evidence of split ticket voting.  Thus, Minnesota exceptionalism is not the answer.

Instead, the real answer has to do with now the geographic voting patterns in the state.  A look at the state election results indicate that Mark Dayton for example, won 34 of the state’s 87 counties, with Jeff Johnson winning the majority at 53.  Dayton (and Franken) racked up big wins in Hennepin and Ramsey counties, as well as several other traditional DFL ones, but lost elsewhere.  Now look at where Republican legislators did well and won–in the counties where Jeff Johnson won.  Such a geographic pattern can easily explain the apparent anomaly of Democrats winning statewide and Republicans winning at the legislative level. 

Put simply, Democrat votes are concentrated in a few geographic areas of the state and there are more of them and they overwhelming voted for DFL statewide and legislative candidates whereas Republican voters are dispersed across the state and the voted straight party line for Jeff Johnson and Republican legislators.

The Star Tribune article thus conceptually and empirically got it wrong.  Moreover, it also committed a variation of the classic ecological fallacy–falsely inferring characteristics about individuals based on aggregate or group behavior.  Here they assumed individual behavior about voting based on overall statewide voting.  Yet they did so without understanding the way the votes actually were distributed across the state and for the candidates.

What if we gave an election and nobody came?

Well, literally not nobody came, instead, as Woody Allen once said, 90% of life is just showing up and that is what the Republicans did on Tuesday when they routed to a major sweep across the country.
    First, consider nationally, only 33.3% of the voters showed up.  This compares to 41% in 2010, and it is by far the lowest turnout going back to the early 1980s.  Two-thirds of Americans stayed home, including young voters and people of color.  These are core Democrat voters critical to Obama’s coalition yet they had better things to do than vote.  Even in Minnesota, a state priding itself on the highest voter turnout in the nation, only 50.2% of the voters showed up, down from 55% in 2010, and 60% in 2006.  Despite all the money and resources spent by the national Democrats and the DFL on GOTV, their base did not turnout.  One might speculate what would have happened if they did.  Perhaps the national GOP blowout would not have occurred and many of the close races would have tipped the other way.  Perhaps the Minnesota House of Representatives would not have flipped with the loss of 11 DFL seats.  Who knows, the results might have been different.
    It would be too easy to blame the low turnout on restrictive voting laws.  Maybe in some states that was an issue, but it does not explain places like Minnesota.  Moreover, there were some states such as Wisconsin which actually had higher turnout than four years ago.  No, the laws were not the sources of voter discontent.  What was?
    The first was that there was no constructive defining narrative in 2014.  Republicans ran against Obama and Democrats away from him.  Republicans told us what they would not do Democrats failed to explain what they did and why they deserve two more years.  This was a repeated on the dueling non-narratives of 2010.  Republicans had enough of a message to get their base out, Democrats did not.  Democrats had a failure of nerve, a failure to articulate why they had made the lives of many people better.  They can point to many successes, but too they failed.  Obama really has failed on many scores. 
    Yes Republicans did scuttle many of his efforts, but the President never pushed far and bold enough.  Too small a stimulus, too meek health care reform, waiting too late to tackle the environment, money in politics, or serious education reform.  He gives a good speech but the reforms he pushed were never grand enough to make the types of differences that needed to be made.  We all hoped Obama would be a transformative president, he turned out barely to be a transactional one.  Thus, in part the reason why Democrats stayed home was a combination of disillusionment, disappointment, and simply a failure of the president move the country in a direction far enough for people to see a major difference in their life now or in the future.
    Going forward, what does all this mean? The election results did little to change national politics.  For the last two if not four years power has been gridlocked in Washington, and that is certainly not going to change with the new Congress.  Obama was already a lame duck before the election and he was  destined to lose influence no matter what the results.  Tuesday’s returns simply accelerate the shrinkage of his presidency.  The last four years have been marked by repeated but failed efforts to repeal the Affordable Care Act, inaction on immigration and global warming, short term stopgap budget issues, and stalemates on minimum wage and a host of other issues.  Don’t expect to see that change in the next two years.  New congressional majorities do not necessarily mean that the House and Senate will act more responsibly and that its leadership and Obama will reach agreement by necessity.  What needs to be understood is that there is a basic philosophical difference over the role of government here, with little electoral incentive to compromise.  This is the core to understanding  the 2014 elections.
    The Pew Research Center has argued correctly that what has emerged in American politics is a two tract election cycle.  We have a presidential election cycle marked by turnouts in the mid 50s where women, the young, and people of color turn out, or at least vote in percentages greater than in midterm elections.  These are presidential election years that favor Democrats, in theory.  But the midterm elections produce significantly lower turnouts, with older, whiter, and more male electorates.  In each of these election cycles a different mixture of congressional, state, and local seats are up for election too.  The result is that different electorates create contrasting majorities and results.  Effectively we have dual majorities rule in the United States, each checking one another. With right now the midterm majorities driving American politics.
    Democrats are now looking to 2016 as their salvation when anticipated turnout is up to save them.  Don’t count on pure demographics to bail them out.  One still needs a good narrative and message, an argument to give people a reason to vote.  Obama’s lasting legacy may be one I saw in a New Yorker cartoon from a few years ago when one person turned to another and said “I think Obama has the potential to get a whole new generation disillusioned.”  It is this disillusionment that is the reason why we gave an election this past Tuesday and no one came.

Why the DFL will lose the Minnesota House

The DFL are going to lose the Minnesota House.  There are many reasons for this but the main one is arrogance–both a refusal to recognize a bad strategy and an unwillingness to admit mistakes.
    On the face of it, the DFL has much to cheer about come November.  It will sweep the constitutional offices with Dayton especially winning by a wide margin.  Franken too will win, probably big, as there is no sign that the election is tightening, contrary to what reporters any my colleagues rotefully declare.  The coattails of these statewide victories plus the large cash advantage that the DFL enjoy should in theory be enough to keep them in power in the House.  But it won’t be enough.
    Yes, there are obvious reasons why the DFL will lose.  Obama is unpopular and dragging down the party.  It is a mid-year election and DFL voters are less likely to vote.  Both of these factors explain why big-name Democrats such as the Clintons and Michelle Obama have visited the state with the hope of rousing the base and instilling passion into DFL voters.  But still that will not be enough to overcome other major problems of the DFL.
    Consider first that the DFL won many seats in 2012 by close margins in Republican areas.  They did so in part because if was a presidential election year and also because they benefited from Republican legislative overreach in the 2011-2012 session.  This means the DFL are defending many seats that are in Republican areas, or at the least, seriously lean GOP or are at best swing. 
    The second problem is the lack of a Democrat or DFL narrative.  Obama had a great narrative  in 2008 but since then at the national level there has been no narrative for reelection.  That is why Democrats were trounced in 2010.  Obama held on in 2012 because Romney was such a horrible candidate.  Dayton won in 2010 because Emmer was a weak candidate, and in 2012 the DFL won less on their narrative and more on GOP failures.  This year, there is still no national Democrat narrative and at the state level, the narrative too is missing.  Yes Dayton and Democrats can run on  their record of accomplishments and on a good state economy, but neither play well in swing districts.  Moreover, the DFL do not have a good narrative to counter MNSure, Obamacare, the new Senate Office Building, and many of their other legislative acts.  Yes all of these play well to the base, but not to swing voters. There is a nagging yet silent sense of DFL over-reach here, but when you put it all together, what is the narrative?   “Four more years?”  “If you liked the past you will love the future?”  The narrative is cloudy at best, thereby explaining in part the lethargy of the DFL voter.
    But perhaps the main reason why the DFL will lose the House has to do with arrogance.  It is arrogance on several scores.  Over the last few months I have given more talks across the state than I can count.  Repeatedly I hear that th DFL is using a cookie-cutter approach to running a state legislative campaign.  They are using the same messaging, GOTV, and tactics in all of their campaigns.  Such an approach is a recipe for failure, ignoring the special issues and needs of different districts.  While we may live in a era where elections are often nationalized, Tip O’Neill is still correct that all politics is local. 
    Almost 30 years ago I moved to Minnesota and saw a party still fixated on the past. I saw a  DFL bureaucratic and dominated by a small core of activists who in many ways still dominate the state and think the way you win is the way they used to win.  Say what you might about the GOP, but the TEA has brought in a new crop of activists into the Republican Party, willing at times to challenge it with new ideology and tactics.
    But what I have heard about and see this year is that the DFL leadership has refused to acknowledge that their strategy and campaign projections are flawed.   It is a urban-based approach that might work well in cities with lots of Democrats, but it is still not well suited for many suburbs  and especially rural Minnesota. I have heard several DFLers over-confidently say there are only about 8 swing races in the state, self-assured that there are some seats they really do not need to defend. Too many individuals have told me that they have been refused support or volunteers because the DFL thinks their race is unwinnable.  Or that the DFL has not supported a race because of petty jealousies. 
    There is a lot of ego on the line here.  Many in the DFL leadership have a stake in being considered wise gurus–they have decided who can win or lose and how–and they do not want to prove themselves wrong less they lose their stature within the party.  This insularity and making it all about them is a sure downfall for the DFL this November.

The Fox 9 Hamline Gubernatorial Debate: Cautious, Controlled, and Scripted.

    Cautious, controlled, and scripted.  This is how I would describe the Sunday morning Minnesota gubernatorial debate between Jeff Johnson and Mark Dayton.
    I attended MN gubernatorial debate at Hamline and did post-debate analysis with Jeff Passolt of Fox 9. 
    The debate was cautious, controlled, scripted, and candidates stayed on talking points. It was boring in many ways.  No gaffes (although both parties tried to spin me that their candidate hit a knock out punch or that the other gaffed). Johnson did not hit a home run and Dayton sat on his lead. Johnson is a better speaker but neither have much passion. They were listless at times, boring at others.  They were so cautious, giving predictable answers to questions often not very interesting such as your favorite fast food, or whether they had either smoked pot.    Republicans tried to argue that Dayton saying he supported single payer insurance was a game changer, but is anyone really surprised by this?  Conversely, some said that Johnson saying he had no clue on how to define the middle class was a gaffe.  Doubtful. 
    Finally, neither really seemed to have a grasp on the details of public policy–lots of general views on visions of the government and general  statements about what they want to do but not a lot of policy detail.  For geeks like me who worked in government writing laws and implementing them (or teaching policy making and implementation), the debate was thin on details.
    I think the race is essentially over and absent a real unforeseen event Dayton wins.  The polls have not changed much since the August 12, primary, putting Dayton at about a 10 point lead.  There is no evidence the race is tightening, early voting is depleting the number of individuals who have not voted, the DFL has more money than the GOP, and Johnson has done nothing to change the narrative to his favor.


Excluding the Independence Party
Depending on how one it was described, the debate was either co-sponsored by Hamline  and Fox 9 or the latter sponsored it and Hamline merely rented space.  I mention this because there was controversy surrounding the decision to exclude IP candidate Hannah Nicollet from the debate.  Because I teach at Hamline I will not take a position on this decision.  I will simply say that I have taught election law and non-profit law for 16 years and have done training and given advice to hundreds of non-profits.  I often advise them to be careful during election season when inviting candidates to address their organization.  All candidates must be given a equal opportunity to address  their organization (if an invitation is extended to any) on terms that are comparable.
    Ms. Nicollet may have done better getting press by being excluded from the debate than by attending.  Had she attended, she might have broken up a debate that was simply not that interesting.


Physical Punishment for Children
One question they both bombed was on the issue of physical punishment for children. Neither know the law. Both tried to draw lines between legitimate and excessive physical punishment. I have worked with social service workers who tell you that any use of physical punishment against children by parents or foster parents is considered wrong. Culturally we are moving away from the idea it is okay to spank kids. The idea that we can hit children is contrary to the law and IMHO, just outdated. But neither wanted to take the lead on this issue.

That is what the law says but go talk to any caseworker and they will tell you that any instance of physical punishment they treat as abuse. Current law allows some physical punishment but the difficulty Johnson and Dayton had in drawing the line reflects the fact that it is difficult to draw the line. That difficult line drawing (my opinion) tells me that physical punishment against children is or should be as outdated as the concept that husbands should be allowed to physically punish their wives. We call that domestic abuse--a crime--and hitting children should be viewed the same way.

BTW
Had a fun time  talking to Jeff and Kelcey Carlson from Fox 9--both terrific people. Jeff and I talked snow shoeing and cabins and we explained who Bronko Nagurski was to Kelcey.  Keley and I talked running.

The 2014 Elections and the Second Great Disenfranchisement

Elections are supposed to be the way people select their leaders. Increasingly that is no longer the case.  The courts now occupy an enormous role in determining the outcome of elections–even before they start.  That is clearly the case this year where too often the goal has become to rig elections by making it harder for some, especially people of color, the poor, and the young, to vote.  This especially seems to be the strategy of Republicans who continue to push the Second Great Disenfranchisement in American history.
    Consider what is happening across the country right now, with less than a month before the election and early voting already taking place in many states.
    The U.S. Supreme Court upheld Ohio’s curtailment of early voting which was adopted by Republicans, after a federal district court and a court of appeals stayed the law.  Republicans in Wisconsin pushed through a strict voter ID law and just in the last few days the Supreme Court has enjoined its enforcement for this election.  Suits are challenging limits passed by Republicans in North Carolina limiting on  same day voter registration and a ban on counting ballots from incorrect precincts.  And in just the last few days a federal judge enjoined a voter ID law in Texas that would have disenfranchised over 600,000 voters, especially impacting African-Americans and Latinos.  This law too was pushed by Republicans including the state’s governor Rick Perry. 
    In all of these cases it is Republicans pushing to shrink the electorate, to make it more difficult for people of color, the poor, and young to vote.  If the First Great Disenfranchisement came after Reconstruction ended in the 1870s, we are now witnessing the Second Great Disenfranchisement.  The former ushered in the era of Jim Crow, polls taxes, literacy tests, and grandfather clauses as tools to deny African-Americans the right to vote.  Today claims of voter fraud and measures such as voter ID, long voting lines, eliminating early voting, and the gutting of the Voting Rights Act are the tools to accomplish the same.
    Republicans generally are advocating  limits on voting, depressing voter turnout even more during midterms elections when Democrat-leaning voters are less likely to show up.  This seems to be part of a national strategy to rig elections in their favor.  In some states, such as Wisconsin and North Carolina, these curtailments of voting rights could make a serous difference in who wins as governor or the US Senate, and ultimately which party might control the Senate.
    But even beyond legal efforts to disenfranchise, another one is occurring.  Nationally, perhaps only around 38-40% of those eligible to vote this year.  Young people, people of color, and the poor are especially likely to stay home.  Yes it may be true that neither of the major parties offers any alternative or real choice for these people, but still one should vote.  Vote even if it means writing  in a candidate of your choice.  Show up, vote, and use it as a protest vote if needed. Get in the habit of showing up and demonstrating to the two parties that your voice matters and it should be considered.
    A lot of blood and energy was spent in the passed to get the young, people of color, and the poor the right to vote.  Don’t waste those past efforts.  Remember, there are many people who don’t want you to vote and who did not want your ancestors to vote.  Voter ID laws and other legal restrictions are bad but it is even worse if you decide not even to bother to show up.

Side note:  Over the last few days I have heard several commentators and reporters remark that despite the fact that Dayton and Franken have large leads in the polls the races will certainly tighten.  Really?  What is the evidence for that?  In past elections that has happened but so far there is no evidence from the polls that these races are getting any closer.  Since the August 12, primary both Franken and Dayton have maintained leads from at least 8 points to more.  There is no evidence from the polls that the races are getting close.  Instead, the evidence suggests either that public opinion has frozen or that the incumbents have leads that are increasing.  Yes, I have some disagreements with the polls but right now there is no hard evidence to suggest these races are getting any closer.  In fact, it is entirely possible that minds have been made up and that where we are now is where the final outcome will be.  My point?  Lacking evidence to the contrary, it is bad analysis to say that the races will tighten unless you have good data this year to support that assertion.

Constitutional Personhood: a tale of women, fetuses, corporations, animals, robots, and Martians

Note:  This was my Constitution Day talk at Hamline.
“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we.  But as the Hobby Lobby decision showed when the Supreme Court ruled that a corporation had religious rights, it is not always clear who or what the Constitution considers a person or a thing.  One would think that it is simple–persons have rights, property does not.  The reality is that throughout American history the constitutional line between property and personhood has been thin and contentious.
     The text of the Constitution uses “person” 22 times.   Many instances refer to eligibility to run for office such as president.  But two places, Article I sections 1 and 9, refer to “other persons” when discussing slaves for the purposes of determining congressional representation, apportioning taxes and regulating slave trade.  They and  Indians were to be counted as “three-fifths” of white male persons when it came to representation.
    While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship.  In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom.  Chief Justice Taney declared that while slaves were people the Framers did not intend them to be considered persons with rights.  Using the Fifth Amendment that stated that no owner shall deprived property without due process of law, slaves were declared possessions of their owners.
    Slaves and Native-Americans were not the only constitutional outcasts.  As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the Continental Congress to “remember the ladies” when they met to declare independence.  Yet in the 1875 Minor v. Happersett decision the Supreme Court acknowledged women to be persons and citizens yet nonetheless could be denied the right to vote.  A decade later in County of Santa Clara v. Southern Pacific Railroad Company the Supreme Court simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
    Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status.  For corporations, personhood grants them the right to free speech,  and now free exercise of religion under Hobby Lobby.  They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
    Children are persons and at one time in cases such as Tinker v. Des Moines the Supreme Court declared that the Constitution protects them.  Yet minors cannot vote and they face many legal restrictions on their behavior ranging from due process to smoking and drinking.  Resident aliens are persons, but enjoy fewer rights than citizens. Undocumented individuals should enjoy no rights according to some.  And since 9-11, it is not altogether clear what rights persons detained at Guantanamo Bay deserve.
    The battle over personhood and property continues to perplex American society and constitutional scholars.  Property is afforded significant constitutional protection and  challenges to land use, eminent domain, and regulatory laws often assert ownership rights. The 1973 Roe v. Wade decision legalizing abortion declared that “person” did not include the unborn.  Yet the Court did not say that the fetus was property, it was something in between requiring a balancing of its rights against the mother.  A fetus is not a person but many states criminalize women who smoke, drink, or do drugs while pregnant.   Six states have declared a fetus a person and North Dakota voters may do that this November.  But declaring a fetus to be a person still will not resolve what rights it has.
    Consider new frontiers in the battle for personhood.  Animals are legally property but laws ban cruelty and maltreatment.  Advocates urge that primates such as bonobos have a sufficient sense of intelligence, self-awareness, or pain that they are morally indistinguishable from humans and therefore should have their rights respected.  Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
    Other frontiers sound more science fiction.  While the Supreme Court declared in its 2013 Molecular Pathology v. Myriad Genetics that human genes could not be patented, the case highlighted the increasingly fine line between human or person and artificial.  The 1970s television show The Six Million Dollar Man featured Lee Majors as a  human re-engineered with artificial parts and computers.  Is a future six million dollar man a person?  Consider Hal, the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal is turned off is that computercide?  When human replicants from Blade Runner kill in the future, will they be persons liable for crimes?  Is Data from Star Trek a person?  Finally, assume the proverbial aliens from Mars land on Earth, will the Constitution consider them persons entitled to rights? 
    Hobby Lobby thus demonstrates whether something is a person or property is only the beginning of  a constitutional debate about rights.  It also shows how controversial that determination is.  For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.

The Lessons of Vietnam: Why Obama’s, McCain’s, and All the Other ISIS Plans will Fail

Listening to Obama’s speech Wednesday outlining his ISIS strategy was deja vu’ all over again.    It regurgitated the same failed strategy to deal with terrorism that Bush first gesticulated; but more importantly it uncomfortably demonstrated yet again the failed lessons of Vietnam that American leaders have yet to learn in the 40 years since that war ended.  His speech, along with the other plans proposed by the neo-cons and warmongers such as John McCain and Graham Lindsay, aptly confirmed one of the greatest lines by Karl Marx who stated once in his The Eighteenth Brumaire of Louis Bonaparte: “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.”
    In a nutshell, Obama’s strategy is simple and simpleminded–America will drop tons of bombs on ISIS, expand the war to Syria, and rely upon ground troops provided by Iraq and other countries to replace Americans on the ground. It is a military strategy devoid of a political solution, emphasizing that it may take years (and into the next presidency) to succeed.  Obama inherited a failed war and is now passing it onto the next president.
    How much this reminds me of Vietnam, except not Obama is both Johnson and Nixon at the same time. President Johnson inherited a nascent war from Kennedy only to escalate it and then in  the waning year of his presidency to express remorse about its efficacy after the Tet Offense in 1968 where any confidence of US victory was destroyed by a massive North Vietnamese offense in January of that year.  The war cost Johnson a second term as president.  Nixon took over, again escalated it, including expanding the war illegally and secretly with bombings into Cambodia.  When  that did not work, Nixon’s peace plan was the “Vietnamization” of the war–replacing American ground troops with those of the South Vietnamese–hoping that the latter would be able to continue the war and delay America’s indignant and inevitable loss for a few years. 
    Obama’s expansion of the bombings and reliance upon Iraq or other ground troops is just Cambodia and Vietnamization warmed over.  But so was Bush’s response to 9-11, or to the invasion of Iraq in pursuit of the nonexistent weapons of mass destruction.  In all these cases the assumption was that American military might will overwhelm the enemy, liberating the people to form their own democratic societies.  It worked really well in Vietnam, Afghanistan, and Iraq.
    Alone the factual parallels to Vietnam should be instructive to why the Obama, McCain, et al plans will fail.  But dig deeper, there are two major lessons or reasons why any of the plans currently proposed are farces.  First, consider Powell Doctrine.  General Colin Powell in 1990 stated that the use of US military force needs to answer several questions, including asking whether there is a vital US interest at stake?  Are there clear objectives for the use of force?  Is there a clear definition of success?  And is there an exit strategy?  On all accounts, what Obama described in his Wednesday speech missed the mark.  About the only real rationale for going back to war is that we failed before  and that now we need to do more of the same to postpone failure even longer.  It is not clear what the US interest is, and even if there is one, we have no benchmarks for success or a strategy for leaving.  Quagmire was the word once used to describe Vietnam–that is the new word now for Iraq.
    But even more profoundly, the failure of Obama’s strategy lies in perhaps the most important lesson of Vietnam–the limits of US military power.  The single greatest book on Vietnam remains  Frances FitzGerald’s Fire in the Lake: The Vietnamese and the Americans in Vietnam.  In describing the failed war she describes of the US escalation into Vietnam:

    It was entering into a moral and ideological struggle over the form of the state and the goals of the society.  Its success with the chosen contender would depend not merely on US power but on the resources of both the United States and the Saigon government to solve Vietnamese domestic problems in a manner acceptable to the Vietnamese.  But what indeed were Vietnamese problems, and did they even exist in terms in which Americans conceived them?  The unknowns made the whole enterprise, from the most rational and tough-minded point of view, risky in the extreme.   (Boston: Little, Brown and Company, 1972), 6-7.

The tragic failure of Vietnam was that it was really a battle for the hearts and minds of the people–not a war that could be one on the battlefield with bombs.  The US did understand that the problem of Vietnam was not a geopolitical one between communism and democracy, but a more indigenous cultural battle among the people there.  The same is true in Iraq and Syria.  This is not a global battle over terrorism and freedom but a problem that has to be solved by the people in that part of the world.  Dropping bombs does little to resolve the fight, especially if as in Vietnam it hurts  civilians and pushes them to the other side or continues to prevent people from solving their own problem.
    Missing from Obama’s and all the other plans is an asking of the question to why ISIS is so successful in recruiting supporters.  There is no plan to ascertaining why, for example, individuals from the Minnesota Somalian community are joining terrorist groups or why British citizens are becoming ISIS members who are beheading Americans.  Until such time as the focus shifts to asking these questions, to realizing that a strategy in place since Vietnam will not work, the current plans too will fail in farcical ways.

Political lies and the First Amendment: What role should deception have in politics?

My blog today appears in Minnpost.  Please visit it.    The title is "Political lies and the First Amendment: What role should deception have in politics?"  It examines a recent Court of Appeals decision striking down a Minnesota law making it illegal to lie about ballot propositions such as school bond levies.

Amend the Constitution to restore the democracy the Roberts court killed

Please note:  This essay originally appeared in The Hill on August 29, 2013.


Money is not speech. Corporations are not persons. Most of us intuitively understand that. The Supreme Court clearly does not. In Citizens United v. FEC, it ruled that corporations have a First Amendment right to expend unlimited amounts of money to influence elections. More recently, in McCutcheon v. FEC they struck down the overall caps on how much money wealthy individuals can contribute directly to campaigns and to party committees. The Supreme Court’s decisions are wrong and they deserve to be overruled with a constitutional amendment to restore the First Amendment to its rightful place protecting American democracy, instead of as a tool to suppress speech rather than enhance it.          

Some will object that we should not amend the First Amendment, that it is fine the way it is. However, the Supreme Court's recent decisions have twisted the meaning of that Amendment from supporting democracy to privileging it for the few.  The Supreme Court has been wrong in the past and they have been corrected with constitutional amendments and laws. This is called checks and balances.


A century ago reformers such as Teddy Roosevelt rued the rise of wealthy corporations and individuals corrupting American politics. Supreme Court Justice Louis Brandeis stated:  "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both."  Thus was launched a battle against the undue influence of wealthy special interests that included anti-trust laws, bans on corporate political activities, progressive taxation, and campaign finance reform legislation. The Richard Nixon Watergate abuses produced more reforms, including public financing of elections, disclosure laws, and political contribution and expenditure limits.          

But beginning with the 1976 Supreme Court decision Buckley v. Valeo, wealth fought back.  The Court ruled that limits on how much money candidates, groups, and wealthy persons could spend were unconstitutional.  The Supreme Court under Chief Justice Roberts continued to hack away at efforts such as McCain-Feingold to limit the power of money in politics. Citizens United and McCutcheon are only the most recent examples of how the Court is letting money and privilege entrench itself, preventing the political system from functioning. The gridlock in Congress and rising inequalities across America are the result.          

The First Amendment under the Roberts Court has become a tool to suppress speech rather than enhance it.  The First Amendment free speech clause is not meant to be a right for one or the few but for all. It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible. There is no way that a rule that says all of us have an unlimited right to shout is viable; at some point, one has to understand that the First Amendment rights of some have to be read or understood in light of the rights of others. The right to free speech cannot be interpreted in such a way that the rights of a few can suppress the free speech rights of others. As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  Citizens United, McCutcheon, and its defenders fail to recognize this principle.          

Money should not be a factor determining who holds political power, what bills are passed, and how elections are run. The issue is not only whether money buys influence or corrupts. It should be whether money should at all be the criteria by which political power or influence is allocated, and whether the First Amendment should shield such privilege.          

Justice Rehnquist, dissenting in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power.  He declared: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” And in Federal Election Commission v. National Right to Work Committee, the Court quoted the federal government’s brief in that case that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”           

What these comments from the Supreme Court suggest is a recognition by it at one time that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem with Citizens United and McCutcheon is that five Justices radically departed from past precedent and failed to understand how a democratic system derives its legitimacy from political equality. Money and wealth should not rule in American democracy; it should be real people, all the people. Previous Supreme Courts understood this, but not the Roberts Court.  This is why we need a constitutional amendment — to restore democracy to America.

Lobbyist Influence in the 2014 Legislative Session

Note:  This blog originally appeared in Politics in Minnesota on August 28, 2014.  Please consider subscribing to that publication.

 Many of us learned about government and how it works by watching “I’m Just a Bill on Capitol Hill.”  Part of the ABC School House Rock series, it depicted the process of how a bill becomes a law in Washington, D.C.  It describes the role of citizens, members of Congress, and the president in legislating.  Yet it left out an important actor–lobbyists.  In so many ways, legislating  would be impossible–good or bad–without lobbyists, and that is equally true in Minnesota.

            Looking back at the 2014 Minnesota legislative session we know what was passed or not.  Among the notable highlights, the legislature raised the minimum wage, passed anti-bullying legislation, cut taxes, passed a massive bonding bill, enacted the Women’s Economic Security Act,  adopted smartphone theft  and medical marijuana laws.  It also debated but did not pass  the Toxic Free Kids Act, dealt with the constitutional defects in the sex offender treatment program, or do more to address the ailing state infrastructure. 

            One can catalog the what was passed or not, but the more interesting question is the why.  Why did some bills pass and others fail?  One explanation offered by political scientist David Mayhew is that it is all about the electoral connection.  One can explain why legislators do what they do by looking at whether such actions enhance their election prospects.  Yes, the quest for reelection explains the motivation for many actions, but missing from that explanation is an analysis of the structural forces that shape election prospects and motivations when legislating.  This is where lobbyists come in.

            To a large extent legislation in Minnesota is debated and shaped under the structural influence of lobbyists and the associations they represent.  Depending on how you look at it, they  perform one of two roles.  In the first lobbyists and associations like to describe themselves as simply information brokers providing valuable knowledge to legislators about bills.  They additionally represent key constituencies, insuring that legislators take them into account when acting.  The contrary role is that lobbyists and associations pollute the legislative process.  They are special interests who use personal connections, insider relationships such as friendships, and even gifts, food, and money, to affect the legislative process.  Both images are correct in Minnesota.

            First, let’s consider some basic numbers.  There are 201 Minnesota legislators who make a base salary of $31,140.  Because of per diem, some make more than that.  There are 1,316 currently lobbyists and 1,351 associations registered  in Minnesota.  This means there are approximately 6.5 lobbyists and 6.7 associations per legislator in the state.  During the 2014 session  lobbyists spent $5,404,778 to influence the legislative process, or $26,889 per legislator.  Lobbyist disbursements include gifts, meals, telephone, and other costs associated with seeking to affect legislation.  This spending does not include the salaries of lobbyists. Add these figures in and based on past trends, associations spend upwards to $40 -$50 million to affect legislation. The sheer number of lobbyists, associations, and the amount of money they spend is enormous, eclipsing the salary and number  of legislators many times.

            But not all lobbyists are equal.  This is not a level playing field where all lobbyists and associations are of equal weight and influence.  Some are more powerful than one another, giving some a greater voice.  Consider the $50,000 club.  These are the 29 lobbyists who disbursed at least $50,000 during the session.  These 29 lobbyists spent $2,609,557, or nearly 50% of what all the 1,316 lobbyists spent.  These 29 lobbyists represented 103 associations.  There are some lobbyists who work for a specific organization and only represent them, such as David Olson for the Minnesota Chamber of Commerce or Brandon Rettke for Education Minnesota.  But Ted Grindal represented 44 groups including Ebay, Microsoft, Proctor and Gamble, Mille Lacs Band of Ojibwe Indians, DaVita, and the Boys and Girls Clus Association, and Andew Kozak works for  25 groups that include the  Shakopee Mdewakanton Sioux (Dakota) Community, the University of Minnesota, OPUS, the Mayo Clinic, and AT&T.  They are part of the  mega-lobbyists, the ones who really are the major players in the legislative process.

            Consider the top ten spending lobbyists and who they worked for in the 2014 session.  These ten alone spent $1.28 million, or 24% of total lobbyist disbursements..  At the top of the list was the Minnesota Chamber of Commerce at $348,000, followed by the Associated General Contractors of Minnesota at $110,939, and then Education Minnesota at $110,178. 

            While these dollar figures tell us something about their efforts to influence legislation, they still miss a lot.  Minnesota has some of the weakest lobbyist reporting laws in the country according to the Center for Public Integrity.  Missing from the raw numbers is an ability to link directly expenditures to particular bills or legislation.  There is a transparency problem–lobbyists are not required to state whom the lobbied  or what specific bills they worked on.  One can presume that the Chamber of Commerce spent a lot of money on the minimum wage and tax bills and the Education Minnesota did the same for the anti-bullying legislation, but we cannot be sure.  It is next to impossible to connect dollars to legislation and influence based on the what the law requires to be reported.

            But there are even more problems here.  In 2013 the legislature strengthened the hand of lobbyists.  First, it weakened the gift ban law, again making it possible in some circumstances for  lobbyists to wine and dine legislators.  Second, they increased the amount of money that lobbyists may contribute to candidates while simultaneously decreasing disclosure requirements.  Put simply, lobbyists can give more money and goodies to legislators but with less transparency and accountability.

            What does all this mean?  Lobbyists have a major presence in the Minnesota legislative process.  They expend significant resources to affect law making.  The public has limited information to know what they are doing.   Some of the lobbyists and the groups that they represent are far more powerful than others, thereby creating a structural bias in terms of how legislation is debated or whose interests are considered.  The legislative process may be stacked to favor a few interests or it simply might be so engulfed by lobbyists, associations, and money that one wonders whether the public interest is actually being considered when bills are debated.  The 2014 legislative session then was yet another one where one has to ask whether and how the debates on minimum wage, taxes, and other topics were shaped by lobbyists.  To know the answer to that question is really to know how a bill becomes  a law.