The Stakes are Too High

            I’ll leave it to others to chronicle and critique the current feud between Senate Republicans and Senate Democrats about whether President Barack Obama can or should nominate someone to fill the Supreme Court seat formerly occupied by the late Justice Antonin Scalia.

            I don’t really much care about the Hatfield/McCoy-like food fight between Senate Democrats and Senate Republicans over who started the brawl or what any sitting or former Senator may or may not have said during any previous Supreme Court nomination process.  And while the ideological balance of the Court is clearly on the line, I’ve been around long enough to know that Supreme Court justices often grow and evolve in unexpected ways.

            What most interests me is why this fight is likely to become a key issue in the 2016 election.  It’s because we’ve allowed the Court to become too powerful even as we’ve lost trust in democracy.

            In Marbury v. Madison, the Supreme Court, in 1803, claimed for itself the power of “judicial review” to decide whether an act of Congress was consistent with the Constitution and to void that act if it was not.  The Court wisely refrained from using this power again until 1857 when, in Dred Scott v. Sanford, it used its power to undo the Missouri Compromise and set the nation on a path that led to the Civil War.

            Judicial review is a potent power.  For all practical purposes, it gives the Supreme Court the final say on almost everything of great significance.  Once the Supreme Court decides a matter on Constitutional grounds, its decision can only be reversed by a subsequent decision by the Court or by a constitutional amendment.

            The former is unlikely unless the membership of the Court changes.  That happens only sporadically and will happen less frequently as presidents, seeking to extend their influence well beyond their terms, appoint younger justices who, like Justice Scalia, can serve the court for 30 years or more.

            The latter, adopting new constitutional amendments, is implausible, given our fractured politics.  The Constitution permits Congress to propose constitutional amendments, but it takes a two-thirds vote in both the House of Representatives and the Senate to send a proposed amendment to the states. It takes the assent of three quarters of the states to ratify it.  The Constitution also allows two thirds of the states to call for a Constitutional Convention for the purpose of proposing constitutional amendments, but that’s never happened in American history.

            Constitutional amendments are rare.  Not including the Bill of Rights and the amendments that ended the Civil War, the Constitution has only been amended 14 other times in the 227 years since it was first ratified in 1789.

            The Supreme Court does need to have some power to void laws that are at variance from the Constitution.  The Constitution itself specifically denies the Congress the power to do certain things, as does the Bill of Rights and the amendments adopted at the end of the Civil War.  These proscriptions would be meaningless without a constitutional court to enforce them against political majorities. 

            Likewise, the nation would return to the state of political chaos that prevailed prior to the adoption of the Constitution if the Supreme Court had no power to enforce the Supremacy Clause against the states.

            But those powers should not allow the Court otherwise to substitute its judgment for that of duly elected legislators regarding matters clearly entrusted to them.

            When a five-member Supreme Court majority has the power to undo the will of the people on policy matters that ought to be within the control of the people and their elected representatives, the stakes of controlling the ideological balance of the Supreme Court are too high.  The possibility of losing a major policy battle in a forum not easily overruled or correct is too costly.  And that is what energizes this fight.

            Of the next Supreme Court justice, we should demand a healthy respect for the actions of the two political branches and of the states.  Because I believe that large majorities would demand a legislative continuation of the status quo on abortion, women’s rights and gay rights, I would accept a justice who would vote to overturn Griswold v. Connecticut (privacy), Roe v. Wade (abortion) and Lawrence v. Texas (gay rights) and but also to overturn Citizen’s United v. FEC (campaign Finance), Shelby County v. Holder (voting rights) and Chief Justice Roberts’s nonsensical attack on the Commerce Clause and on Medicaid in National Federation of Independent Business v. Sebelius.

            We are a democracy.  That means that it should be up to the people, through their elected representatives, to make policy, for good or for ill.  Major policy decisions do not belong in the hands of a five-member majority of a nine member Supreme Court, serving for as long as they want without ever being accountable to the people.  Instead, policy belongs in the hands of the people, voting for leaders who will enact the policies the majority wants.

            Does this sound dangerous? It is.  But when the people understand that they, and not an unelected Supreme Court have the final say over the nation’s future, maybe interest in the system and participation in it will improve.  If it doesn’t, the people will have no one to blame but themselves.

Flint, Congress and Moral Hazard

            Dan Kildee is the Democratic Congressman whose district includes Flint, Michigan.  Last week he proposed comprehensive legislation focused on providing help to the city whose population had been poisoned by the carelessness of Michigan’s Department of Environmental Quality and the “emergency financial managers” appointed by Governor Rick Snyder.

            The measure would provide federal matching funds to repair Flint’s water distribution system and provide health monitoring and remedial services for residents poisoned by the lead leached from pipes by the caustic waters of the Flint River.  Michigan Senators Debbie Stabenow (D-MI) and Gary Peters (D-MI) have introduced a counterpart measure in the Senate.

            The liberal/progressive in me wants to stand up and cheer for my fellow Democrats.  Those people in Flint need help and they need it now.  And they apparently don’t have the political muscle to wring anything but mea culpas and contrite apologies out of Lansing. We’re all Americans, and if that means anything, it should be that when our fellow Americans are in trouble we help them out through our national government.

            But the political scientist in me is less enthusiastic.  The Flint catastrophe has queued up a difficult problem that pervades the Tragic Commons: “moral hazard.”

            Moral hazard exists when people are protected from the adverse consequences of their actions by some third party.  Because of that protection, people lose the incentive to behave properly.  There’s a great example of moral hazard in a scene from the 1991 flick Fried Green Tomatoes.  In it, a frustrated older driver loses a parking space for which she had been patiently waiting to a pair of young women driving a VW convertible.  The older driver’s enraged and gleefully rams the VW multiple times with her four door Ford sedan. “Face it, girls” the older driver says, “I’m older and I have more insurance.”             

            Like a number of states captured by Republicans in the wave elections of 2010 and 2014, Michigan adopted substantial tax cuts.  Among other things those cuts blew a hole in Flint’s budget, enabling the Snyder to appoint a series of emergency financial managers more interested in cutting costs than in protecting the public.

            There isn’t any question that the State of Michigan is responsible for the mess in Flint.  Everyone here in the Tragic Commons thinks that it should be up to Michigan’s taxpayers to clean it up.

            Moral hazard results if the national government steps up to help.  Michigan would get to keep its taxes low while national taxpayers bear the expense of the cleanup.   The fact that Kildee’s bill provides funding only on a matching basis goes some part of the distance in reducing the moral hazard, but still, from the standpoint of principle, it doesn’t explain why the State of Michigan and its taxpayers shouldn’t pick up the entire check.

            In fact, if Congress adopts Kildee’s bill or anything like it, Congress would be telling the States (and the Republican politicians that run them) not to worry about being fiscally responsible with their tax rates.  Moral hazard would encourages states to cut their tax rates and take comfort in the assurance that if things get really bad in the state, benevolent taxpayers from the rest of the country will step in and bail the state out.  Moral hazard would stand the straight-laced Republican insistence on fiscal prudence on its head.

            On the other hand, there are some in the Tragic Commons who argue that fiscal prudence requires state and local governments to try to pass their costs off to suckers not smart enough (or too sentimental) to object.  That is, after all, what the Tragic Commons is all about.

            Looking at Rep. Kildee’s bill through the lens of moral hazard raises another question: Is federal assistance for Flint any different from federal assistance for places like the Jersey Shore, devastated by hurricane Sandy? Should we be more willing to help people who have been hurt by force majeure than by human agency?

            At first blush, Hurricane Sandy can be seen as a “one-off” event for which nobody on the local level had any responsibility.  The damage done to the Jersey Shore occurred because of Mother Nature’s wrath, not because state and local authorities were asleep at the switch as they were in Flint.

            Yet, the need for federal assistance depended on available state resources.  New Jersey is a coastal state, and its officials should be able to anticipate that the sea will rise up against it from time to time.  Why shouldn’t we expect New Jersey to insure itself against such disasters by using its taxing powers to create a large reserve fund to be used in such cases?  Or, to put it another way, how much should the rest of us be willing to help a state that hasn’t tried to anticipate disaster by using its tax power to protect itself?

            These are difficult questions, and they go straight to the heart of our federal system.  If we’re going to have a system in which states are sovereign and have financial control over their territories, shouldn’t they also have to absorb some substantial portion of a loss before turning to Washington for additional assistance?  Shouldn’t state voters be forced to suffer the consequences of electing politicians who want to reduce the level of safety for its residents in order to cut its taxes?

            Or, must we instead recognize that we live in the Tragic Commons, and accept that the cost of doing the right things for our fellow citizens when their own states won’t has the potential for turning the rest of us into suckers.  

Without Democracy . . .

            I teach a college level introductory course on American government and politics.  I love teaching this course because it provides an opportunity to wrestle with some of the key questions about American democracy. Like if there is any.

            What is going on in Michigan now provides a compelling case study about why democracy is important and what happens without it.

            The population of Flint, a financially strapped city in what used to be a booming auto manufacturing center, has been poisoned by untreated drinking water from the highly caustic Flint River.  Residents began to complain about the smell and taste of the water, as well as hair loss, strange rashes and other maladies almost immediately after state authorities decided to begin using the Flint River to supply drinking water in April 2014. 

            State officials initially told residents that the water was safe to drink, but four months later, they issued a boil water advisory after coliform bacteria were found in the water.  In October of 2014, a General Motors plant located in Flint found that the water was beginning to corrode car parts and promptly stopped using it.

            By February, 2015, state officials knew that there was lead in the water, and not just a little bit.  The Flint River’s water, which had not been properly treated to reduce its corrosiveness, leached lead off of water distribution pipes located underground and in inside Flint’s homes.  In one home, the level of lead reached almost 400 parts per billion.  Though the Environmental Protection Agency requires action at 15 parts per billion, no level of lead is considered to be safe.

            By September of 2015, doctors were finding high levels of lead in the blood of the children they were treating, but state authorities continued to insist that the water was safe.  A month later, Governor Rick Snyder appointed a task force to investigate.  By the end of the year, the task force acknowledged the seriousness of the problem and blamed the state Department of Environmental Quality.

            A declared national state of emergency exists now in Flint, and residents have to make do with water filters and bottled water.  It’s not been decided whether lead can be prevented from leaching out of water pipes by additional chemical treatment or if all of the lead pipes will have to be replaced.  And nobody seems to have stepped up to address the problems the children affected by ingesting lead-laced water are certain to have throughout the rest of their lives.

            Lots of narratives are swirling around this catastrophe.  There’s a quite reasonable “black lives matter” narrative that holds that this is just another example of the cavalier manner in which white authorities treat places such as Flint that have large populations of African-Americans.  There’s another narrative that finds this is just another example of Republican willingness to disregard public safety in order to keep taxes low for millionaires and billionaires.  And there’s another narrative that focuses on a dysfunctional bureaucratic culture at the Michigan Department of Environmental Quality that discouraged employees from blowing the whistle on incidents like this and punished  those who did.

            All of these factors were probably at play.  But the real culprit here was the fact that, because of the Emergency Fiscal Manager law, the local political officials in Flint had no power to react to citizen complaints about the water, and the state officials who did have power had no political incentives to use it.

            Flint has had the kinds of financial troubles that pervade hollowed out parts of the Rust Belt.  Industries shut down, people move away, and the tax base that once supported the commitments the locality had made to its citizens shrinks.  In 2002, Flint had been placed under the control of a state appointed “Emergency Financial Manager‘ to deal with it’s fiscal woes.  Under the relevant law, Emergency Financial Managers assume all of the power a locality’s elected officials ordinarily possess and local officials can only take actions the Emergency Financial Manager allows them to take.  Flint’s first experience with an Emergency Financial Manager ended successfully in 2004.

            But promptly after the Republican sweep of the Michigan state government in 2010, Flint found itself in dire financial straits, in part due to an $8 million cut in state aid.  Governor Snyder found that Flint again required an Emergency Financial Manager, and that’s who was in charge when Flint began getting its water without proper treatment from the Flint River.

            In a properly functioning democracy, when a problem occurs, citizens seek redress from their elected officials.  Elected officials tend to like their jobs, and so they are extremely sensitive to what their constituents want.  They know that if they can’t deliver what the citizens want, they will be turned out of office at the next election.

            Michigan’s Emergency Financial Manager law short-circuits this process.  Citizens can complain about local conditions all they want, but the Emergency Financial Manager doesn’t have any obligation to listen to them.  He or she is appointed by the governor and holds his or her position at the governor’s pleasure.  His or her job is to find a way for the local polity to dig its way out of debt and pay its bills.  To some extent, the job is like that of a bankruptcy trustee whose first loyalty is to the debtor’s creditors.      

            Ultimately, the governor gets credit or blame for whatever the Emergency Financial Manager does.  But this doesn’t insure that the concerns of the people in a locality will be heard.  Governor Snyder is term limited and will never again have to face the voters.  Even if he weren’t, places like Flint would probably not be high up on his list of priorities.  In the last election, the county in which Flint is located gave almost 70% of its votes to Snyder’s Democratic opponent.  One of the most basic rules of politics is that you serve your supporters first, particularly if resources are limited.

            What happened in Flint was not tyranny, or at least the kind of tyranny American democracy was born to prevent.  It was, instead, the steely indifference of rulers to people who have no adequate democratic way of protecting themselves.

Let Maryland Go First, Hon

            Aren’t you tired of the Iowa Caucuses and the New Hampshire primaries?  I know I am.  These two states with small largely white populations spread out among communities that people hear about once every four years take an inordinate share of the scarce political oxygen.  Their low population densities force politicians to spend an inordinate amount of time traipsing through them.  That extends the political season for at least three and maybe six months longer than it needs to be.

            On account of that, I’m making this modest proposal: Henceforth, let the presidential nominating season start in Maryland.

            Yes, I know I’m affected by a certain chauvinism that attaches to one, such as myself, who has spent his whole life living in what the local beer brewers  used to call the “Land of Pleasant Living.”  And I think it would also be fair to say that letting Maryland go first would free me to participate in the process in a way I can’t participate in it now, particularly since climates in those godforsaken states is far colder than I can easily tolerate.

            But even after we acknowledge my prejudices, you will still have to admit that my proposal makes a good deal of sense.

            The current era of Presidential voting focuses on base mobilization.  For optimizing general election turnout, this means that whomever a party nominates needs to be a person who is enthusiastically acceptable to the party’s base nationwide.  The momentum that winning the first primary gives a candidate should not go to someone who won’t appeal to the party’s median voter.

            If the GOP continues to specialize in the preferences of white voters, ethnic diversity doesn’t much matter.  Its candidates will continue to get primary electorates composed largely of white Republicans wherever it goes.  What the Republicans ought to be looking for is a state that has places populated by both Republicans who are most moved by economic and defense issues as well as Republicans who stress social issues.  The former tend to live in urban and suburban areas while the latter tend to live in rural areas.

            Democrats, though, find strength in diverse populations.  In the last few national elections, Democrats lost the white vote but prevailed among ethnic voters by big margins. 

            From a demographic standpoint, Maryland fits the bill for both parties.  In fact, the state is often called “America inMiniature.” Table 1 shows that Maryland is far more diverse and  

Table 1

Characteristic	U.S.	Maryland	Iowa	New Hampshire
Population Size	N/A	5.9 Million	3.1 Million	1.3 Million
Percent White	73.81	59.06	91.39	93.83
Percent Black	12.6	29.5	3.11	1.23
Percent Hispanic	16.9	8.76	5.3	3.05
Percent Asian	5	5.86	1.94	2.31
Primary Type	N/A	Closed	Semi-closed	Semi-closed

Source:  American Community Survey Data reported by www.USA.com

representative of the United States as a whole than either Iowa or New Hampshire.  The latter two states have pitifully small black, Hispanic and Asian populations, groups Democrats will need in the general election, both now and in the years to come.

            But Maryland also has a good mix of pro-business Republicans who live in suburban Baltimore and Anne Arundel counties and rural Republicans who live in Western Maryland, Southern Maryland and east and south of Baltimore County.

            A second advantage is Maryland’s size.  It has about the same land area as New Hampshire and it is about 6 times smaller than Iowa.  That means a politician can start the day at Deep Creek Lake in Western Maryland, drive to Rockville in Montgomery County for lunch, drive again to Baltimore for an early dinner and then go ‘downy ocean’ for an evening fundraiser all in the same day, traffic permitting.

            Of course, all that driving isn’t really necessary.  Maryland’s population density is about 10 times greater than Iowa’s and more than 3 times greater than New Hampshire’s. That’s because its population is clustered largely within Central Maryland.  That greater density makes it much easier for politicians to get in front of the voters. That should translate to a much shorter primary season.

            New Hampshire and Iowa like to tout the experience of their voters in sizing up presidential candidates.

            Please. 

            They have nothing on Maryland voters who are much better educated, and, frankly have much more skin in the game.  A large percentage of Maryland’s population works either for the federal government or for NGOs and contractors that interact with the federal government on a daily basis. Just let any one of the current presidential candidates show up at a Montgomery County town hall meeting with the bucket of horse manure he or she is trying to pass off in Iowa and New Hampshire as a policy portfolio and see what happens. 

            It’s true that Maryland is a deep blue state.  But, as a matter of fairness that’s another good reason to let Maryland go first.  Iowa and New Hampshire tend to be “battleground states,” and so they’re likely to get a healthy amount of attention during the general election campaign.  On the other hand, everyone expects Maryland to vote for the Democratic presidential candidate, so neither party is going to spend much time here after the nominating conventions. Letting Maryland go first would give its citizens a more meaningful role to play during the quadrennial presidential drama.

            Finally, while Iowa allows voters to change their party affiliations on the day of the caucus and both states allow independent voters to participate as either Democrats or a Republicans, that’s not allowed in Maryland.   Maryland’s rules make it hard for people who aren’t party identifiers to skew primary election results by crossing over to the other party in the hope of electing a weaker general election candidate.

            So what is everyone waiting for?  There are cases of Natty Bo chilling in the fridge and crabs steaming in the pot  It’s time to start the campaign season in the original land of the free and the home of the brave.