Wednesday, March 23, 2016

Why Won't Media Give Bernie a Break?

First read these quotes from this morning's media coverage of last evening's Democratic primary and caucuses (emphases supplied; footnotes [in brackets] go to sources' links at bottom of this page).

Second, look at the facts -- the actual percentages of the votes received, and delegates allocated.

Third, tell me if you think the media's language honestly squares with professional, independent journalism, based on those facts.

Quotes from Media's March 23 Reports of March 22 Primary and Caucuses
Hillary Clinton and Donald J. Trump overwhelmed their rivals in the Arizona primaries on Tuesday, a show of might from two presidential front-runners . . .. Mrs. Clinton’s commanding victory in Arizona, where 75 Democratic delegates were at stake, gave her the night’s biggest prize, and her margin there was substantial enough that Mr. Sanders was unlikely to emerge with significantly more delegates, . . .. [1; (New York Times)]

Donald Trump and Hillary Clinton scored easy victories Tuesday in Arizona, the largest and most-watched of the day’s three electoral contests. . . . The large margin is a blow to her rival, Sen. Bernie Sanders, who had staked a comeback on Arizona. [2; (Washington Post)]

Bernie Sanders and Ted Cruz both campaigned hard in Arizona, hoping to score upsets over their party’s front-runner in the most populous of the three states that voted Tuesday. They got crushed. [3; (Washington Post)]

Clinton's win in Arizona prevented the Vermont senator from cutting deeply into her delegate lead by night's end. [4; (Associated Press)]
Actual Percentages of Votes Received and Delegates Allocated
Utah Caucus

Sanders: 79.7% of participants; 24 delegates
Clinton: 19.8% of participants; 5 delegates [5]

Idaho Caucus

Sanders: 78.0% of participants; 17 delegates
Clinton: 21.2% of participants; 5 delegates [6]

Arizona Primary

Sanders: 39.9% of the votes; 26 delegates
Clinton: 57.6% of the votes; 41 delegates [7]

Total Delegates Allocated

Sanders: 67
Clinton: 51 [5, 6, 7]

Professional, Independent Journalism?"

So, what do you think?

Do you think Sanders was "overwhelmed" by Clinton's "commanding victory" and "show of might"? Would you say, in this context, that Sanders' 67 delegates are not "significantly more" than Clinton's 51? Would you say that Sanders "got crushed," or suffered a "blow" from her "large margin" of voters and delegates in Arizona?

The real story of this Democratic primary is not that Clinton has more delegates than Sanders. The man-bites-dog story of this primary is that Sanders has won any delegates. It's the political equivalent of a junior high basketball team somehow sneaking into the NCAA's March Madness, and making it to the final four.
Clinton has been national figure for decades, the presumed ultimate nominee, and started with a substantial army of friends and supporters throughout the country. Sanders had little to no history with the American people outside of Vermont, name recognition in the low single digits and little to no national media exposure.

Clinton has had the support of the Democratic National Committee, most elected Democratic officials, is married to a two-term popular former president, was appointed to the top cabinet post by another two-term popular president, and had the prior experience of running for the presidential nomination in 2008. Sanders was not even a Democrat -- or a member of any other political party. He's a 74-year-old (she's 68) Jew from Brooklyn, living in Vermont, serving in the Senate as an "Independent," who says he's a "Democratic Socialist." He started with support from few if any Party officials, and had never run for office outside of his tiny home state of Vermont.

Clinton (and her husband) started with substantial personal wealth, the support of multi-million-dollar PACs, Wall Street banks and hedge fund managers, billionaires and other wealthy persons, access to the nation's most experienced campaign managers, advisers, and former staff of their own, and long time contacts throughout the media. Sanders started with virtually no money at all, and has stubbornly insisted on funding his campaign with small contributions from the American people while refusing to take money from PACs and billionaires.
I could go on with these contrasts, but you get the idea.

The point is, given these contrasts, I think the media ought to give their audience, and Bernie, a break. They should acknowledge what an extraordinary accomplishment he represents -- the enormous crowds he attracts, the first time participants he's brought into the Democratic Party, his ability to keep up with, or exceed, Clinton's fund-raising ability, and yes, the number of delegates he has won competing against the Clinton powerhouse. That's the story of this primary season -- and of last night's results, not that Clinton got more voters than he did from Arizona. Given the difference in their inherent political strength, and the Clintons' contacts throughout the sate, it would have been remarkable enough if he had received 20% of the votes in Arizona -- the percentage that she got in Utah and Idaho. That he won as much as 40% is overwhelming. That he actually came out of the evening with more total delegates than she had is unbelievable!

Finally, a word about a word: "won." It's bad enough that the media turns politics into a horse race rather than a national dialogue about issues and public policy. But applying the word "won" to a primary or caucus in which there is a proportional allocation of delegates based on numbers of votes, or persons, is downright misleading -- whether done intentionally or out of ignorance. It would be especially hilarious if not so serious, when the "winner" is only separated from the "loser" by fractions of one percent. Trump "won" Arizona -- if one insists on using the word -- because, for the Republicans it was a "winner takes all" state. Clinton did not "win" Arizona in that sense -- because for the Democrats the delegates were assigned proportionately, based on percentage of the vote each received.

Links to Sources

[1] Jonathan Martin, "Clinton and Trump Win Arizona; Cruz Picks Up Utah; Sanders Takes 2, New York Times (online), March 23, 2016

[2] Anne Gearan and Jenna Johnson, "Clinton, Trump Win Delegate-Rich Arizona, but Falter in Utah and Idaho," Washington Post (online), March 22, 2016

[3] James Hohmann, "Arizona, Utah Results Give Stop Trump Movement Reasons to Both Hope and Dispair," Washington Post, March 23, 2016

[4] Calvin Woodward, "Arizona Goes For Trump, Clinton," Associated Press, March 23, 2016

[5] "Utah Caucus; Democratic," Google, March 23, 2016

[6] "Idaho Caucus; Democratic," Google, March 23, 2016

[7] "Arizona Primary; Democratic," March 23, 2016

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Monday, March 21, 2016

The People's Voice, Constitution, and Supreme Court

"Our view is this: Give the people a voice in the filling of this vacancy."

-- Republican Senator Mitch McConnell, Majority Leader, U.S. Senate [Jennifer Steinhaueer, "Mitch McConnell Speaks Out on Garland," New York Times (online), March 16, 2016, 12:21 PM ET]

The Republican Senate leadership, in the person of Majority Leader Senator Mitch McConnell, greeted Senator Barack Obama's 2008 election as President of the United States with the candid declaration that its purpose, its focus going forward would be to make Obama's a failed, one-term presidency.

This month that goal has played out in the context of a Supreme Court appointment. Following the death of Justice Antonin Scalia on February 13, on March 16 President Obama sent the Senate his nomination of Justice Scalia's replacement.

This followed the Constitutional provision that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . .." [Article 2, Section 2.]

Following their make-Obama-fail game plan, the Republican leadership's response has taken the form of not just failing to confirm the President's nomination of Chief Judge Merrick Garland -- following one-on-one meetings, committee hearings and floor debate -- but a refusal to even undertake any of those traditional preliminaries to confirmation. [Photo of Chief Judge Merrick Garland, U.S. Court of Appeals, D.C. Circuit; credit: CNN]

No public official or journalist has suggested that the Senate is required to confirm President Obama's nominee. Each Republican (and Democratic) senator has the constitutional right and opportunity to vote "No" on the confirmation of Judge Garland -- just as they did when they voted down President Ronald Reagan's 1987 nomination of Judge Robert Bork to the Supreme Court (by a vote of 42-58 on October 23).

The issue is, rather, whether they have the right to refuse to undertake any and all elements of the process the Constitution requires of them.

It is noteworthy, with regard to this year's Supreme Court nominee, what Judge Bork said following the Senate committee's rejection of his nomination:
There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions [regarding the probability of my Senate confirmation]. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. . . . For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.
["Bork Gives Reasons for Continuing Fight," The New York Times/Associated Press, October 10, 1987.]

For a political party whose leaders professes as much allegiance to a literal reading of the Constitution as of the Bible, it is a little difficult to square their rejection of the confirmation process with either the language of the Constitution or its interpretation by their poster Judge, Robert Bork.

All they have been able to come up with is a profession of a desire to "give the people a voice" in the selection of Supreme Court justices (quoted at the top of this blog essay). What they seem to mean by "voice" is postponing the Senate's responsibility until after the next presidential election -- in part, some contend, in a self-serving effort to convince their base how important it is to retain Republican control of the Senate by reelecting the Republicans already there.

Whatever their motives may be, rational support for this "people's voice" assertion is somewhere between difficult and impossible to find.

(1) For starters, those who drafted the Constitution went out of their way to insure that the people's voice would be muffled by what we today refer to as "the establishment."

(2) No one was thinking of a direct democracy, like a New England town meeting. They designed a representative democracy, in which elected officials would make all the decisions.

(3) And there were significant restrictions on who could even vote -- a privilege first limited to land-owning, white, males over 21 years of age. African-Americans, who weren't even counted for more than 60% of their number (Article I, Section 2), weren't granted a right to vote until 1870 (Amendment XV). Women had to wait until 1920 (Amendment XIX), and 18-20-year-olds until 1971 (Amendment XXVI).

(4) Even the few who did get to vote weren't trusted with the power to elect, or not, those running for office. To this day, even those who do get to vote don't get to vote for their president. The drafters saw to that. Article II provides that the actual selection of the president will be made, not by the people's voice or vote, but by "electors" (appointed by each "state . . . in such Manner as the Legislature thereof may direct . . .").

(5) And, senators take note, nor did the drafters envision that the vote or voice of "the people" would be doing the selection of senators, either. Article I, Section 3 ("The Senate . . . shall be composed of two Senators from each State, chosen by the Legislature thereof . . .." This was left unchanged until 1913, with the passage of Amendment XVII.)

(6) In short, the drafters of the Constitution did not envision a role for a "people's voice" in the sense that Senator McConnell is using the words (the results of a presidential election).

(7) Even if the "voice of the people" was constitutionally relevant in that context, that voice was heard in both 2008 and 2012 -- President Obama not only having been elected, but then re-elected. And there is, of course, no constitutional time limit on the president's judicial appointment power -- he or she has as much of that power on the last day of their presidency as they had on the first day.

(8) Moreover, to the extent the popular vote in a presidential election can be said to be an expression of the people's voice, that voice does not clearly say anything beyond their choice between the two major parties' nominees for the office. And even that message is not all that clear. Many eligible American voters don't bother to vote. Others hold their nose when they do, picking "the lesser of the two evils."

(9) Although it still wouldn't be constitutionally compelling, it would be theoretically possible that a presidential election would be fought out between two candidates taking opposite positions on one single, dominant issue -- perhaps like the Lincoln-Douglas debates regarding slavery. But that was not the case in either 2008 or 2012 -- those elections did not even raise (to the best of my present memory) an issue regarding the Senate's constitutional right to refuse to consider a president's judicial nomination, let alone turn on such an issue.

(10) All of these responses are equally applicable to Senator McConnell's suggestion that the "people's voice" in 2014, re-electing a Republican majority to the U.S. Senate, supports the Republican leadership's current intransigence. (a) Each of those individual senators' elections had multiple variables affecting the outcome. And (b) even if a case could be made that a single dominant issue in all of those campaigns (won by Republicans) was a desire that their senator vote "no" on the confirmation of potential justices perceived as "liberal," that would only support the theory of a "people's voice" for "no" votes on some nominees, not support for the leadership's refusal to engage in the confirmation process at all.

Therefore, it seems to me, the Republican Senate leadership is wrong in the position it has staked out with regard to President Obama's nomination of Judge Garland -- both as a matter of constitutional interpretation, and in terms of their "people's voice" talking point argument. Whether they are also wrong as a matter of their own political best interests we will only know after we hear the people's voice next November.


I'd like to add a personal note regarding the politicization of the U.S. Supreme Court. From an early age I've been aware of the Supreme Court and its justices. I majored in political science in college, and was blessed with a remarkable constitutional law professor in law school who strengthened those early interests. This was followed with clerkships -- first with a U.S. Court of Appeals judge, and then a justice of the Supreme Court. I've subsequently taught con law, as we call it, on occasion. So my support of the institution of the Supreme Court is emotional as well as intellectual.

This may reveal a measure of naivete if not outright ignorance, but I can honestly say that I do not recall during my year at the Court (the 1959-60 Term) conversations with, or writings of, justices, law clerks, or other Court employees even revealing partisan (i.e., political party) preferences, and certainly not overt advocacy. The focus was on the facts and the law as revealed in the briefs, oral arguments, our own research, and ultimately our justices' printed opinions.

I've always thought that orientation was a part of the genius of the idea of a non-political, independent, institution made up of nine individuals with lifetime appointments, not subservient to either the Executive or Legislative branches of our federal government. It made possible the resolution of conflicts between the other branches (and also the states) that might otherwise have thrown our nation in chaos.

Its power, such as it was, came not from armies, multi-billion-dollar appropriations, or the delivery of votes. It came from a largely unarticulated agreement among Americans regarding their preference for this non-violent means of dispute resolution, and the ethics (rather than campaign contributions) that drove its decisions.

Theater was used to re-enforce this ideal. Justices wore black robes. They entered the Court from behind a curtain, through which they returned to their chambers after the oral arguments. They sat at a bench raised above the level of those in attendance. In my day the podium for a lawyer arguing before the Court came complete with what were, literally, quill pens. High metal gates closed the hallways leading to their chambers. During my year they very rarely, if ever, appeared in public, or sat for print or television interviews. Their social life was restricted. And in their professional life they had no constituents as such, and were rarely if ever visited by lobbyists, or lawyers with cases pending before the Court. No one but the justices was permitted to be present during their secret deliberations regarding Court opinions. When an opinion was final, they would come out from behind the curtain once again, take their nine assigned seats in the Court, and read the opinions to those in attendance.

The trust that gives the Court the power we need for it to have is a fragile thing. It is easily destroyed by public anticipation of predictable 5-4 votes, and journalists' talk of "liberal" and "conservative" justices whose votes can be easily guessed if one knows the political party to which they, and the president who nominated them, belonged.

Those who wrote our Constitution did not conceive of the Supreme Court as yet a third political branch of government. They knew it could only play the role for which they fashioned it if the public believed it was special, trustworthy, independent, honest and just -- and if the public was correct in so believing.

What today's Republican Senate leadership is doing with regard to President Obama and his nomination of Judge Garland is not only a violation of the Constitution's provisions regarding such nominations, it is also further contributing to the erosion of the public's perception of this unique and precious American institution.

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Friday, March 11, 2016

Random Thoughts on Tuition-Free Iowa Universities

Links to Contents' Sub-Headings
Political Viability
Economic Analysis
Precedent and Incrementalism
Non-Monetary Benefits
I've been thinking about tuition-free Iowa universities. There are no conclusions, or proposals, at this point; just random thoughts.

Political Viability

A tuition-free college education is obviously not a politically viable idea in Iowa at this time. The state's ideologically-driven Republican governor and House of Representatives are focused on cutting taxes while providing financial incentives for business, and privatizing historic governmental functions. The Board of Regents has selected a president for the University of Iowa with a business background whom they hope can "run the University more like a business" while cutting its share of state funding even further.

But that doesn't mean there's no point in thinking about the idea, or that it would have no political support.

For starters, we're talking about Iowa's 15 community colleges as well as its three Regents' universities. Indeed, a stronger case can be made for the former than the latter. It costs less to add two years to our K-12 system than to add four. And the benefits might even be greater. As former U.S. Secretary of Health, Education and Welfare John W. Gardner wrote in his little book, Excellence (1961), “The society which scorns excellence in plumbing as a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy: neither its pipes nor its theories will hold water.”

Surely families that would like to send their children to college, but cannot afford the tuition, would support such a program -- especially if the child in question would become the first in the family to do so. Iowa's rural communities would have access to more and better trained trades people, entrepreneurs, members of Richard Florida's "creative class," and others necessary to the communities' sustainable growth and quality of life. (See, e.g., James Fallows, "How America is Putting Itself Back Together," The Atlantic, March 2016.)

Tuition-free college and community college would benefit all Iowans, not just some college bound wealthy elite.

Economic Analysis

Admittedly, many of the reasons to provide tuition-free college involve values other than economic -- of which more later. But what arguments might be fashioned to appeal to those who, as the saying has it, "know the price of everything and the value of nothing"?

It's not like this is a wild and crazy radical idea that has never been tried. We provided tuition-free college for returning veterans of World War II as part of the GI Bill. In Michael Moore's film, "Where to Invade Next," he shows a list of some 21 countries that are, today, offering tuition-free or incredibly cheap college (some restricted to their own citizens, but others offering the deal to all students, including Americans). [Photo of Freie Universitat of Berlin]

Presumably those countries have some data indicating an economic justification for these arrangements. The economic impact of New York's CUNY and SUNY institutions, and California's 1960-1975 "Master Plan for Higher Education" would also be worth exploring. ("The two governing boards reaffirm the long established principle that state colleges and the University of California shall be tuition free to all residents of the state.")

"Tuition-free" is not "free." Academically qualified high school graduates who cannot afford the costs of board and room, books, and the loss of what would otherwise have been earned over four years, will still be denied higher education. But those who can and do pursue more education will be able to generate more income for their employers, and themselves. Not only will they boost Iowa's economy by spending more as consumers, they will also be contributing the purchasing immediately made possible by the absence of years of paying off student loans' principal and interest.

What if the data does show that the return on this investment of public funds, in the form of jobs and profits, turns out to be many multiples of its cost? Would there be a point at which even the tax-cutting naysayers might see a proposal for tuition-free college in the way they now view the creation and maintenance of the interstate highway system?

Precedent and Incrementalism

It's important to note the distinction between (a) funding a entirely new program, and (b) an incremental increase in funding a preexisting program. To provide tuition-free college and community college education for Iowans would not be the first time public money would be used to educate the state's people. Iowa had its first one-room school in 1830, and by 1910 was one of the first states to have a statewide system of high schools.

There is not unanimous support for public education; some parents prefer private schools, or home schooling. But for some 250 years in the United States (and in other countries as well) there has been near-unanimous recognition of (a) the citizen's right to education, and (b) the desirability of, indeed society's need for, an educated citizenry. Soon the requirement was not only for citizens' access to free public education, but for their compulsory education. The 1966 "International Covenant on Economic, Social and Cultural Rights" expressed the right this way: "Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education. . .." Article 13 (2)(c).

This presidential election year has brought tuition-free higher education into the national discussion of public policy, such as it is. It's one of Senator Bernie Sanders' main talking points. Secretary Hillary Clinton, by contrast, advocates a more needs-based system. So far as I am aware, there has seldom if ever been an argument that free primary and secondary education should be limited to families in financial need, with all other parents paying full cost. If a distinction is to be made for higher education a persuasive rationale for doing so should be provided. (The one exception involves, not tuition, but the fee for a student's lunch. Those able to do so pay the cost of the meal; students of lesser means receive lunch for free, or at reduced cost -- a program subsidized by federal taxpayers.)

While there is squabbling over precise amounts, there is a clear majority that generally accepts that the societal benefits of free K-12 education exceed its cost to taxpayers. Counting Iowa's primary and secondary schools sources of federal, state, and local revenue, Iowa's approximately 350 school districts receive a total of about $6 billion a year of taxpayers' money. (Extrapolating to America's 50 million school age children, the national commitment would be on the order of $500 billion, or one-half trillion dollars a year).

To these numbers we would need to add what the three Regents' universities are already receiving: federal, state and local financial support in the billions (federal research projects and Pell grants; state appropriations; and local counties' inability to collect property taxes from the universities' tax-exempt property).

The point? While the cost of providing Iowans a tuition-free college education is not insignificant, the largest financial commitment to public education already exists. Tuition-free college merely adds two or four years to the 13 years of education we're already funding for K-12.

Non-Monetary Benefits

Economists called upon to do benefit-cost analyses of, say, public parks, may calculate the economic "benefits" by totaling what users are willing to spend in the per-mile costs of driving to and from the park. Most of us (including some of those economists) would argue that such calculations are almost worthless. What is the "value" to a family of a day at the beach, public library, or touring some of the Smithsonian's buildings in Washington? What mother, father, or child would measure the value of a day's conversations while fishing -- with or without a catch -- by the cost of the fishing tackle and bait?

So it is with education. It has economic value, for the society and the individual, as discussed above. But it has so much more. The before and after impact it can have on every moment of one's life is like the difference between watching a TV soap opera on an old small screen black-and-white TV, and being able to understand and enjoy a classic drama, or symphony orchestra (or NFL game) on a high definition, color, big wall screen. Intuitively (and with some supporting data) proportionately more of those with more education are likely to be healthier, happier, wiser investors, more effective parents, and otherwise get more out of day-to-day living than those with less.

From the beginning of America's public education, one of the perceived needs and driving purposes has been to prepare students for participation -- with information, intelligence, civility, morality, and a sense of responsibility -- as citizens in a self-governing democracy. That need is, if anything, even greater today than 250 years ago.

These non-monetary values are reflected in the United Nation's 1948 "Universal Declaration of Human Rights," Article 26. Like the "International Covenant," above, it declares that "(1) Everyone has the right to education. . . . [H]igher education shall be equally accessible to all on the basis of merit." But it goes on to explain that, "(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms."

Many would find these non-monetary benefits of tuition-free education as persuasive a reason for funding higher education as for primary and secondary education -- and certainly so when added to the economic benefits.


So, is there a conclusion after all? Not yet. However, it is my opinion that the case can be made that adding two to four years of additional education to our publicly-funded K-12 system -- updating it, as it were, from the high school requirements of an agricultural and industrial age over 100 years ago -- is well worth our exploring further.

As has been said, "When the people will lead, their leaders will follow." Regardless of the ideological orientation of Iowa's elected officials, the first step will have to be something on the order of Bernie Sanders' "political revolution." The people of Iowa will need to care, to study these issues, make higher education a priority, organize, demonstrate, and demand the benefits that tuition-free higher education has to offer for all Iowans.

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