Thursday, May 28, 2020

Will Trumpism Domination of the GOP Survive a Trump Election Loss?

I recently have had the opportunity to listen to two podcasts that discussed the future of Trumpism and the Republican paty should Trump, as is becoming increasingly likely, loses his bid to be re-elected.

On the Lawfare podcast, Steven Teles, the author of the book "Never Trump: The Revolt of the Conservative Elites" takes the position that populism reflected in Trumpism will continue to dominate
the Republican Party and that the conservative intellectual opposition to Trump (unfortunately often referred to as "Never Trump") will become a minor, but critical, faction of the GOP that Trumpist Republican candidates will need to court to win.

Benjamin Wittes, the host of the Lawfare podcast and a Senior Fellow in Governance Studies at the Brookings Institute, demurred with Teles' view.  Wittes contended that while Trumpism will survive Trump, Never Trumpers will leave the GOP and  join the Democratic Party. 

Teles countered saying that most of the Never Trumpers save for a couple of them like Jennifer Rubin and Max Boot, continue to hold solid conservative views and that any current support of Democratic Party by Never Trumpers is temporary.  Long-term, Teles argued, the Democratic Party is not an ideological home for Never Trumpers who are generally driven to their positions by their conservative views.

Meanwhile on the Bulwark podcast, Republican strategist Mike Murphy, argued that in the wake of a Trump loss, Trumpism as a dominant force in the GOP would be sidelined.  He argued that Trump's influence on the Republican Party would quickly fade with an election loss.  According to Murphy, while Trump is likely to stay in the news attacking Democrats and political opponents, Trump is likely to be politically neutered, a minor player in GOP politics.

Charlie Sykes, longtime consevative Wisconsin radio personality and host of the Bulwark podcast disagreed.  While Sykes agreed with Murphy that Trump would be a presence on the sidelines attempting to influence politics from the periphery, Sykes believes that venture will prove to be much more successful for Trump.  Sykes believes that if Trump loses, he will set up shop at some media outlet (maybe acquire a small network like OAN, One America News) and turn it into Trump TV.  Sykes sees Trump as being the leading GOP presidential candidate in 2024 should he lose in 2020. 

Murphy disagreed with Sykes' view.  He thinks Trump's age (he would be 78 in 2024) and likely future health problems (see Trump's obesity, opposition to exercise, and fast food diet) will militate against any thought of  running for a non-consecutive second term.  Further, Murphy thinks Trump, with a big election loss on his resume, would not be an attractive presidential candidate for Republican voters in 2024.

All four commentators assume the GOP survives intact post-Trump.  A few months ago, I would have wholeheartedly agreed  Now I am not so sure.  Certainly, two parties will continue to dominate American politics.    But I am not sure the Republican Party, in current form, will survive Trumpism.  While the Republican name may living on, the GOP may have to be rebuilt from scratch.  Trumpism pretty much has destroyed the conservative foundation of the Republican Party.  There is nothing remotely "conservative" about Donald Trump.

I have long argued that the GOP needs to be more populist.  The GOP needs to focus on helping working men and women, not using the tools of government to hand out corporate welfare to wealthy corporations who then hand out millions in bonuses to their top executives.  In short, Republicans need to be more supportive of Main Street and less supportive of Wall Street.

But Teles' view that Trumpism = Populism seems off-base.  While Trumpism sounds populist, in practice Trump has not shown the slightest interest in policies that actually help working men and women.  Instead, Trump has proven himself to be all about making rich people richer. 

Trumpism is not populism.  Trumpism is a personality cult.  At that head of that cult is a charlatan who has exploited people's anger and grievances for his own selfish ends.  For Trump cultists to wake up and realize they have been duped by a con man who cares nothing about them or the country, is not going to happen overnight.  People do not like to admit that they have been fooled. 

So while I don't agree with Teles, I also do not agree with Wittes.  I know directly and indirectly a lot of "Never Trumpers."  They are not opposed to Trump because they have moderate political views.  They are opposed to Trump because they are principled conservatives who refuse to sell out their values to follow "Dear Leader." 

As to the Sykes-Murphy debate, both argue that Trump, post-election, will play a role in GOP politics.  Sykes just believes Trump will be more successful in that role that Murphy.  I agree with Murphy that, especially if Trump loses badly this fall, his career as a political candidate, will be over.  No Trump second term.  But I agree with Sykes that Trump will continue to play an outsized role in influencing the Republican Party, particularly in the area of candidate endorsements heading into primaries.

But winning primaries is worth nothing if one can't win in November.  The indelible stain of Trumpism though will continue to haunt GOP prospects when it comes to winning general elections.  If the Republican Party is to continue be a bulwark to the increasing left-ward drift of the Democratic Party, the GOP may need to reassemble and reorganize itself.  Certainly the conservative foundation of the Republican Party will need to be rebuilt and that will take a long time.

Wednesday, May 27, 2020

Poll Suggests South Carolina Senator Lindsey Graham Re-Election in Jeopardy

A new poll released today shows South Carolina Senator Lindsey Graham's re-election bid is in trouble.  The poll by Civiqs (which is rated as a B/C pollster by Five Thirty Eight) has Democrat Jaime Harrison in a dead-heat, 42-42, with Graham, who is seeking a fourth term.  The poll also shows Trump with a 10 point lead over Biden in the Palmetto State.
Sen. Lindsey Graham (R-SC)

The topline numbers of the poll are troubling enough for Graham.  But the details reveal an even more dire situation for the South Carolina Republican .  Only 35% of those polled view Graham favorably while 56% view him unfavorably.  Harrison's numbers meanwhile are 35% favorable, 28% unfavorable.  Independents really dislike Graham, 68-21.  Not surprisingly, Graham does best with older (50+) white voters.

Meanwhile a new Arizona poll, also released today, shows incumbent appointed Republican Senator Martha McSally trailing her Democratic opponent, Mark Kelly, by 10 points.  A North Carolina poll released yesterday shows Republican Senator Thom Tillis two points behind his Democratic challenger, Cal Cunningham.

While the Arizona and North Carolina senate seats have always been tossups, the big news is that the GOP may have to pump money into saving a Senate seat in South Carolina.  That is a major headache the Republican Party does not need as it finds itself struggling to preserve its Senate majority.

Friday, May 22, 2020

Trump's Arrogance May Seal Loss of Michigan's Sixteen Electoral Votes

In 2016, Donald Trump won Michigan by a margin of only 10,704 votes.  The upset win in Wolverine state was key to Trump, while losing the popular vote, narrowly winning in the all-important Electoral College.

This time Michigan is not looking good for Trump.  Former Vice president Biden leads the Real Clear Politics polling average in the state by 5.5 points.  Four Michigan polls released yesterday all showed Biden leading.  President Trump has never led Biden in a head-to-head Michigan poll since early March, before Biden became the presumptive nominee of the Democratic Party. 

The Trump boat in Michigan is leaking badly.  Instead of bailing out the water to keep the ship afloat,
Donald Trump is working hard to ensure his chances of winning the state end up at the bottom of Lake Superior.  Trump has been engaging in an ongoing war of words with Michigan's popular governor, Gretchen Whitmer, over her stay-at-home orders.  (FYI, I actually think Governor's Whitmer's executive orders go too far and are poorly designed in several respects.)  Then this week when thousands of Michigan residents were dealing with having their homes washed away in floods after two dams broke, Trump threatened to withhold disaster relief to those residents because Michigan's Secretary of State, a Democrat, ordered a paper ballot mailed to every registered voter in the state.

Of course, Trump had his facts wrong.  The Secretary of Sate sent to voters applications for absentee ballots, not ballots, which is exactly what many of her Republican colleagues are doing in their states. Nonetheless, telling voters you want to make it harder for them to vote, in the midst of a pandemic, and that you are willing to use disaster relief to punish Michigan residents who elected those Democrats he dislikes so much...well that's not a good look.

Then yesterday, Trump took a tour of a Ford plant in Michigan.  Even though the Ford's rules require a mask at the facility Trump refused to wear least when he knew could be on camera.  Further, Whitmer's executive order requires people to wear face coverings in enclosed public spaces where the person might encounter others.  Instead of setting a good example, Trump, the faux populist, sent the clear message that he is above the rules everyone else living or visiting Michigan must follow. 

People do not like that "I'm too important to follow the rules everyone else must follow" attitude from politicians.  I know that all too well from my childhood.  My father was a yellow dog Democrat.  But there was one Democrat he turned against, three term Indiana Senator Vance Hartke.  Why?  Well, soon after airport security checks became the law of the land in the 1970s, Hartke, claiming congressional immunity, refused to go through security.  My father never forgot that incident.  Not only did that act of arrogance cost the Senator my father's support (he passed away before he could vote in the 1976 election) but that of many Hoosiers who tossed him out of office in favor of Richard Lugar.

Don't be surprised if at some point in the not too distant future the Trump campaign writes off Michigan.   The Trump campaign winning Minnesota is a much more realistic possibility at this point than Michigan.

Tuesday, May 19, 2020

Tuesday's Tidbits: Arizona, Purple States, Minnesota; War on Whistleblowers; Governor Holcomb's Power Grab

Tuesday political tidbits:

  • Arizona:  Poll released this morning has Trump running seven points behind in Arizona, a state with 11 electoral votes.  Trump won the state by 3.5 points in 2016.  However, Trump has not led a single poll in the state during 2020 and the Real Clear Politics average of polls (RCP-AOP) has Biden up 4 points in a head-to-head match-up.  Since it is unlikely that Michigan and Pennsylvania will be in play this time around (Trump has never led a poll against Biden in those states), it is increasingly difficult to see where he makes up electoral ground.
  • Purple Sates:  States like Virginia and Colorado would seem to be ideal targets for Trump to
    Colorado:  Home of the Worst State Logo
    make up losing Michigan, Pennsylvania and Arizona.  But Biden trails in the RCP-AOP by 9.7 points in Virginia.  Less polling in Colorado, but three polls we have this year have Trump down 13, 18 and 19 points.    FYI, Republican Colorado Senator Cory Gardner is toast.
  • Minnesota:  Will someone please poll Trump v. Biden in Minnesota?  Hillary Clinton won the state by 1.5% in 2016.  Given the state's demographics (rural and white), it seems a good option for Trump to make up ground.
  • Trump's War on Whistleblowers:  I have always been confused by what Trump meant by his claim that he is"draining the swamp."  I always assumed the phrase was used as it has always been used (no, Trump didn't invent the term), to mean a public official pledging to rid the government of corruption.  Apparently, for Trump "draining the swamp" means ridding government of whistleblowers and ending congressional oversight  so corruption can run wild in the executive branch.  
  • Governor Holcomb Power Grab Fails:  Yesterday, the Indiana Supreme Court rejected Indiana Governor Holcomb's attempt to intervene in the disciplinary case of Attorney General Curtis Hill.  The Court had found Hill's conduct allegedly groping several women at a party violated disciplinary rules and gave him a 30 day suspension with automatic reinstatement.  Holcomb wanted the Court to go further, declaring that the 30 day suspension meant the AG's office was vacant and he could appoint a replacement.  But Holcomb didn't want to just replace Hill for the 30 day suspension. He wanted to replace Hill for the several months left in his term.  The Indiana Supreme Court was not amused and chose to ignore Holcomb's attempt to intervene.

Friday, May 15, 2020

Generic Ballot Polling Suggests Strong Democratic Year; Florida Poll Shows Biden With 6 Point Lead

There is something in polling known as the "generic ballot" question..  The question strips away the names of candidates and goes something like this:
"If the election were held today, would you vote for a Democrat or Republican candidate for Congress."
The answer to this question has a strong correlation to which party win control of the U.S. House.

Of course, in individual congressional districts, the question is not a good test for which party will win.   But aggregated across the country, the question is good for taking the partisan temperature of the electorate. Elections in which the Republicans do well, the GOP runs ahead of the generic ballot.  Elections in which Republicans lose seats, the Democrats enjoy a signficant margin in the generic ballot.

There are caveats, however.  Democrats generally do better with self-identification and as a result have a bit of an edge on the generic ballot question. The second caveat is that margins matter.  A Democratic two point lead in the generic ballot means close to nothing.  If the party keeps switching leads in the generic ballot, that suggests considerable volatility among the electorate.

In 2018, the Real Clear Politics final generic ballot polling average gave Dems a 7.1% edge.  The result was an 8.4% edge for Democrats on election day, netting the Dems a more than 40 seat gain in the U.S. House.  In 2016, the RCP generic ballot polling average was a scant 0.6% for Democrats. On Election Day, Republicans though edged out Democrats by 1.1%.  Still in the 2016 election, the Democrats picked up 6 House seats.

The 2020 generic ballot looks a lot like 2018.  In 2018, the Republicans led on only one generic ballot poll in the hundreds of such polls taken over the course of nearly two years leading up to the 2018 election.  As the 2020 election approaches, Republicans have led on zero generic ballot polls and trail the Dems by 7.3%.

It should be emphasized that Democrats dominating the generic ballot in 2020 in a similar fashion as 2018 is not going to lead to another 40 seat gain for the Democrats in the House.  House districts are highly gerrymandered.  Democrats already picked off most of the most vulnerable Republicans in 2018.  Those were the low hanging fruit for Democrats.  Reaching higher up the congressional tree in 2020, the Democrats knocking off GOP incumbents gets a lot more difficult.

What the 2020 generic ballot means is that the Democrats will not be losing their House majority in 2020.   Anyone who offers to bet you the Republicans will win a majority in U.S. House this November, take the bet.  Barring a huge collapse in the generic ballot numbers, the Democrats are going to have their house majority going into 2021.

With only 1/3 of U.S. Senators up every two years, the generic ballot is not good at determining election swings in that chamber.  In 2018, the Republicans enjoyed one of the best maps ever as scores of Democrats were seeking re-election in red states, while Republicans had few vulnerable Senators to defend in blue states.  As a result, the Republicans picked up two seats in an otherwise awful GOP year.

In 2020, the Senate map is much more competitive for Democrats.  Democrats had four top targets for knocking off incumbents (Arizona, Maine, North Carolina and Colorado) and Republicans have one almost certain pickup (Alabama).   There was a second tier of GOP Senate incumbents and Republican open seats that seemed just out of reach for Democrats.  No more.  As a result of the unpopularity of the GOP brand as reflected in the generic ballot, Democrats now have strong chances of winning seats in Georgia, Iowa, Montana, and Kansas.  Even Majority Leader Mitch McConnell (Kentucky) and Lindsey Graham (South Carolina) are polling as vulnerable.

My take?  As of writing this Democrats have about a 90% chance of keeping the House and about a 60% chance of winning a majority in the U.S. Senate (where the Democrats need three seats if Biden wins the presidency, four if Trump is re-elected).  The latter is a huge increase.  At the start of 2020, I might have given the Dems a 30% chance of winning enough seats for control of the Senate.


As of writing this piece, I noticed a new poll came in from Florida Atlantic University showing Biden with a 6 point lead in the Sunshine State. In the Trump era, Florida had fallen from the ranks of being the swingiest swing state to being only a second tier battleground.   Trump has always had a surprising level of popularity in Florida.  But, post Covid-19, Trump's popularity in Florida has sunk significantly.  In March, a Florida Atlantic University poll found 49% approval of Trump's job performance and 41% disapproval.  In the just released FAU poll, the numbers are 43% approve, 46% disapprove, an 11 point net slide in popularity in 2 months.  That March FAU poll had Trump ahead 51-49,   The newly released FAU poll has Biden up 6 in Florida.

Thursday, May 14, 2020

"Double Hater" Voters Heavily Favor Biden And That Is A Problem For Trump Campaign

I used to teach students in my political science calls that, in a race between Candidates A and B, there are four ways of voting. 

1)  Vote for Candidate A
2)  Vote for Candidate B
3)  Vote against Candidate A
4)  Vote against Candidate B

Option #1 and #2 reflect the "base" of voters who support the candidate because they like the candidate.  But those voters often do not decide elections.   You also have another pool of voters who cast ballots based on negative feelings toward candidate, i.e. Options #3 and #4.  That is why negative ads can be very effective. They tap into another route for a candidate to get votes by demonstrating the other candidate is deeply flawed in some way.

But how do voters respond when they dislike both candidates?  Some "double haters" (voters who dislike both candidates) stay home, others vote third party (if that's an option), but the biggest percent of those disaffected voters hold their nose and vote for the candidate they hate the least. 

The 2016 presidential election featured the two most unpopular candidates ever nominated by the major political parties.   As a result, there was no shortage of voters who disliked both Donald Trump and Hillary Clinton.  But, in 2016, 94% of those "double haters" held their nose and voted for one of  major party candidates they disliked.  Trump that election won the double hater vote by a very substantial 17% margin.  No doubt, Trump's edge with double haters gave him the critical winning margin in scores of battleground states.

In short, Trump won in 2016 not by being popular, but being less hated than Hillary Clinton.

Four years later, the Trump campaign is ready to run the same playbook..  While former Vice President Joe Biden's popularity is already underwater, he still is much more popular than Hillary Clinton....and Donald Trump.   No doubt, come November, the Trump campaign's attacks will drive Biden's negatives through the roof, perhaps making him as unpopular as Clinton was on Election Day  The Trump campaign plans to simply substitute an unpopular Joe Biden for unpopular Hillary Clinton.  The American electorate, once again faced again with a choice between two evils, chooses Trump!

There is a reason though why that strategy is unlikely to work this time around.  In 2016, Trump was an outsider.  Faced with a choice between two unpopular choices, most double hater voters preferred to try something new, the Donald.  But in 2020, Trump is the incumbent President seeking re-election.  As any analyst will tell you, such an election is inevitably a referendum on the incumbent.

Because of the referendum like election, double hater voters were already almost certain to favor Biden over Trump in 2020. What is truly shocking though is how lopsided those margins currently appear to be.  A CNN poll released this week showed Biden with a 50% lead among the double haters.  An NBC poll released late April also showed Biden with a 50% edge among voters who dislike both candidates.

No doubt constant bombardment of Biden with negative campaigning will cause voters currently liking the former Vice President to start disliking him. That no doubt helps Trump.  But it helps only at the margins.  The trouble with the strategy is that even if those voters start disliking Biden, they're still more likely to vote for him than a candidate, Trump, for whom they have a deep dislike.  If the voters are unhappy with the President's performance in office, a Trump campaign that demonizes Biden does not move many of those voters from Biden back to Trump.  That is why a scorched earth campaign against Biden is unlikely to work.  

Trump's popularity has been underwater nearly his entire presidency.  Trump was not alone, however..  A number of Republican and Democratic governors were also very unpopular, some even more than Trump.  But during the Covid-19 crisis most of those governors have drastically improved their popularity by demonstrating competence, as well as being honest about the the virus and the sacrifices that were needed to counter the pandemic.  Trump chose a different route, trying to spin the crisis, constantly lying when spin was not enough, and generally turning the crisis into a partisan battle.  The public has not been pleased.

Go back to the four options for voting set forth at the top of this column.  Considering the double hater bind, the best option for Trump, if he were a normal candidate, would be to go positive to increase the share of voters wanting to cast ballots for the President because they like him.  Trump could demonstrate competence in office, treat opponents (and media) with respect, be honest, and not act like a jackass 24/7.   Maybe even express some empathy for people who are suffering.  While such personality changes would involve self-awareness and humility, traits seemingly absent from Trump's DNA, at least Covid-19 gave the President the opportunity to give people a reason to vote for him.   

At this late date though, the only option the Trump has left is spin, to con the American public into not believing the spectacle they have witnessed the last few months, to instead believe the Trump administration handled the Covid-19 crisis "perfectly."  No one except Trump's cultish base of voters, believes such nonsense.

The Trump campaign though is not without hope.  The Electoral College provides that hope.  Even though it is unquestioned by virtually any analyst that Trump will badly lose the popular vote in 2020, Trump can still win enough popular vote in key swing states to win the Electoral College.  That scenario is unlikely though if, come Election Day, more than 100,000 Americans have died from Covid-19 and the unemployment rate is double figures.  People will, look at that carnage, and vote for a change.


Tuesday, May 12, 2020

Attorney General Curtis Hill Receives 30 Day Suspension, Likely Eligible for Renomination

This morning the Indiana Supreme Court handed down its long awaited decision in the disciplinary case involving Attorney General Curtis Hill who was accused of groping four women during a legislative event at a bar.  The Court found that Hill had engaged in conduct of a criminal nature (no charges were ever filed).  An aggravating factor the Court cited considering the proper punishment was that Hill had been overly aggressive in defending himself against the allegations.  But when it came to that punishment, the Court decided 30 days suspension with automatic reinstatement was the correct sanction for Hill's conduct.
Indiana Attorney General Curtis Hill

The decision was a win for Hill.  He immediately praised the Court and turned over operations of the office, for a month, to a deputy.  He will likely be eligible to run for re-election this year.  Still, some of the factual findings of the Court will give his GOP convention opponent fodder to argue Hill should be replaced on the ticket.  Should Hill be renominated, state Democrats will no doubt make him a top target in the fall.

With the decision, the Disciplinary Commission's suffered another blow to its credibility.  The Commission had sought to have Hill suspended for two years, without automatic reinstatement. (Note:  When a suspension decision is without automatic reinstatement, that means the actual suspension might be considerably longer than what is first advertised.)  The Hearing Officer, former Indiana Supreme Court Justice Myra Selby, had only recommended a 60 day suspension, albeit also without automatic reinstatement.

As I have previously noted, my experience is that the Disciplinary Commission expects attorneys to immediately admit guilt when accused by the Commission and to throw themselves on the Commission's mercy.  When an attorney refuses to do that, the Disciplinary Commission leadership and some of its attorneys take it very, very personally, which results in a much more aggressive prosecution and the Commission seeking much greater punishment.

I know that all too well.  In my case, the Disciplinary Commission, unbelievably, pushed for a year's suspension, without automatic reinstatement, because I had gotten a couple minor facts wrong in a private emails I had written to opposing counsel criticizing a judge's mishandling of an estate case that likely cost my client hundreds of thousands of dollars.  As in the Hill case, the Indiana Supreme Court completely rejected the Commission's position and decided on a 30 day suspension, with automatic reinstatement.  By my review of disciplinary cases, the Commission appears to have spent more money going after me that year than any other attorney targeted for discipline that year, including attorneys who absconded with thousands of dollars from their clients' trust funds.

The Hill disciplinary prosecution raises troubling questions.  While it is no doubt true that uncharged criminal behavior is covered by the attorney disciplinary rules, should the rules regulating attorney conduct be applied more strictly if the attorney is a public official?   If a private attorney were accused of groping women at a party, I find it highly unlikely the Disciplinary Commission would have had any interest in pursuing the case.  That does not mean the attorney gets a pass for his conduct. Rather, it is that the proper forum for sanctioning that conduct is criminal prosecution or a civil lawsuit by the victims.

Hill could have been charged with a crime for the alleged groping.  The Marion County Prosecutor, however, apparently didn't think the evidence warranted Hill being charged.  As Attorney General, Hill could have also been impeached and removed from office.  There was a lack of support in the General Assembly to take that step.  So with no criminal charges and no impeachment, the unelected leadership of the Disciplinary Commission stepped in to try accomplish what the elected prosecutor and elected legislators refused to do - effectively remove Hill, also an elected official, from office and bar him from running for re-election.

Unfortunately, in the Hill decision, the Indiana Supreme Court does suggest attorneys who are public officials should be held to a higher standard under the disciplinary rules than private attorneys.  There are already specific ethics rules that apply to the conduct of prosecutors and judges.  Prosecutors are specifically obligated to follow Rule 3.8 of the Rules of Professional Conduct in addition to the other attorney disciplinary rules.  Judges meanwhile have an entire set of ethics rules, the Judicial Code of Conduct, they must follow.

It is a slippery slope to enforce the ethics rules differently when the accused attorney is a public official and when the attorney is a private citizen.  Public officials who are attorneys, especially those in elected office, are by the nature of their jobs already targets of attorney disciplinary complaints.  Unfortunately, the Hill decisions sends a signal to the public that the disciplinary process can be used to target those officials for accusations of misconduct unrelated to the actual work of an attorney.  That opens the floodgates for such accusations.  When that happens (and I would argue it already has happened) the Commission is put in the unfortunate position of arbitrarily rejecting some of those allegations against public officials while pursuing others.

The disciplinary process for Indiana attorneys should not involve arbitrary, uneven enforcement of the rules, including treating public officials who are attorneys harsher than those in private practice.  When it comes to ethics rules, attorneys need bright lines so they know what is right and what is wrong, and the penalty they face must be consistent when they do cross those bright lines.  Unfortunately, there is zero consistency in the Indiana attorney disciplinary process.  And too often disciplinary decisions are driven by the personal animus Commission leadership and its attorneys develop toward the attorneys whose conduct they are supposed to be overseeing.

I applaud the Indiana Supreme Court for its professional, unbiased approach it took toward handling the accusations against the Hill.  Nonetheless, the decision does seem to be a bit of a compromise that glosses over continued problems with the disciplinary process.  The time is long past for the Indiana Supreme Court justices to take ownership of the disciplinary process for attorneys and institute much needed reform.  We attorneys need a disciplinary process that is professional, objective and fair.  What we have right now is anything but that.

Monday, May 11, 2020

No, Trumpism Will Not Continue to Dominate the GOP Once Trump Leaves Office

The Bulwark podcast, hosted by former Wisconsin radio personality Charlie Sykes, is one of my favorite.    Rather than sell his political soul and cash in on the Trump phenomenon as so many "conservative" media types have done, Sykes, a long-time conservative, walked away.  Have to admire that.

A couple weeks ago, Sykes' podcast featured Stuart Stevens, probably the premier GOP political consultant of the pre-Trump era of Republican politics.  Like Sykes, Stevens has become disgusted by
Republican Consultant Stuart Stevens
the conservative movement devolving into Trumpism.  I will never forget meeting Stevens when I worked on the Rex Early for Governor campaign.  One of the sharpest political strategists in the country, Stevens knew how to use paid media better than anyone I've ever known.  His 30 second commercials are some of the best, most persuasive political ads ever made.

The conversation on the podcast turned to the future of the Republican Party post-Trump.  Sykes and Stevens were in agreement that Trumpism would continue to dominate the GOP after Trump left and that Trump, once he is out of office, will continue to insert himself into political debates.

The latter I 100% agree with.  The former I do not.  Here are the reasons why Trumpism will not continue to dominate Republican politics after Trump leaves office.

1)  Trumpism Is Not A Political Philosophy:  Trumpism is about grievance politics.  It is about being angry at the other side, believing not only that the "libs" are wrong, but also evil.  It is about tribalism.  We versus them.  That's all well and good, but it does not make for a coherent set of principles that, long term, the can bind people together to win political elections.  On basically every political issue, Trump has been on both sides.  Trump could come out for amnesty for illegal immigrants tomorrow and his supporters would convince themselves Trump is right on the issue. For Trumpers, when "Dear Leader" makes a pronouncement about an issue, he is by definition right, because he is "Dear Leader."  The reason why Trumpism has the earmarks of a personality cult is because it is a personality cult.

2) Trumpism is Not Transferable:  Since November 2016, there have been many Republican candidates try to imitate Trump's attitude and persona.  They have called opponents names, insulted the media, embraced outlandish positions, and refused to apologize even when wrong.  Most Trump Imitators who were involved in competitive elections have failed.  Probably the best example of that is in Kansas where a Democrat was elected governor because GOP candidate and Secretary of State Kris Kobach failed to impress voters with his Trump imitation.  There are, however, exceptions, such as Governor DeSantis of Florida and Governor Kemp of Georgia.  But their excessive Trumpism might have actually made their 2018 races closer than they otherwise would have been. 

3)  Trump's Endorsements Actually Hurt GOP Candidates in General Elections:  On a related topic, several GOP candidates running in general elections have sought out Trump's endorsement for their races.  Some "lucky" candidates not only received that endorsement, they got the President to come to their district/state to hold a rally to gin up Republican turnout.  You know what happens when Trump does that?  Trump's endorsement and presence fires up Democrats just as much and probably more than it does the Republicans.  A Trump endorsement/visit is almost always counter productive.

4)  Trumpism Can't Win General Elections:  No doubt, Trumpism dominates the GOP electorate.  But to be an effective movement, Trumpism has to win general elections.  In 2016, Donald Trump lost the popular vote by 2.1 million, but eked out a win in the Electoral College, winning three critical states (Michigan, Wisconsin and Pennsylvania) by a total margin of voters who could fit into an NCAA Division 1 football stadium.  In poker terms, Trump drew to an inside straight and got the right card.  Since 2016, Trumpism has shown no general election popularity. Republicans running on his brand have lost scores of seats and even in those in which the GOP candidate won, the victory margin was down substantially.

5) Demographics Doom Trumpism:  Following the 2012 election loss, GOP leaders did an "autopsy" which concluded the Republican Party needs to reach out to minorities and younger voters, i.e. that it could not win national elections any more being the party of predominately middle-aged and older white people.  Did Trump's victory in 2016 prove the 2013 GOP election autopsy wrong?   No.  Trump's 2016 victory merely proved that there was still a way to cobble together one more narrow GOP Electoral College victory using the old GOP coalition..  As we get further and further away from 2016, the electorate becomes less white and younger voters, who prefer Democrats, replace Trump-loving older voters. 

Even if Trump loses, he will continue to speak out on political issues and have devout followers.  He will, no doubt, still be a force in Republican politics.  But, at the end of the day, ideas have to be popular enough to help a political party win general elections, not make it more difficult for that party  to succeed.  The unpopular, often incoherent, ideas that define Trumpism offer the Republicans no future. It is for that reason that Trumpism, post-Trump, will not be the dominant force in GOP politics.

Wednesday, May 6, 2020

Mourning in America; Conservative Group Slams Fake Conservative President

This is the commercial from the conservative group, the Lincoln Project, which has infuriated President Donald Trump.  The truth hurts.

Tuesday, May 5, 2020

Republican Senate Majority is in Jeopardy

Earlier this year, the consensus among political analysts was that the Republicans would be able to retain a majority in the U.S. Senate.   Currently, the split is 53-47 in favor of Republicans.  (Two independent Senators caucus with the 45 Democrats.)  At the time it was unlikely that Democrat Doug Jones, who won his seat in Alabama in a special election, can win re-election in the heavily red-state.  Due to the Vice President Senate tie-breaking Republicans would have to pick up five seats if Trump wins the White House, four if Biden does.   Neither was consideed likely.

No more.

The expectation Alabama Senator Doug Jones will lose has not changed.  What has changed is how terribly things are going for Republican incumbents in Senate races.

First though let's dispose of the GOP's other shot at pick up a seat.  Besides Alabama, the one state the
GOP thought it could win a seat was in Michigan.   Incumbent Gary Peters is not well-known and he does not appear to be a strong candidate.  The Democrat is squaring off against Republican John James, an African-American who ran a strong race against incumbent Senator Debbie Stabenbow in 2018, a bad year for Republicans.  Having lost that race by 6.5%, it was thought the charismatic James, who has a strong resume, would fare better running again in 2020, this time against a weaker candidate in a presidential election year.  James decision to tie himself closely to President Trump has backfired big time as Trump's popularity in Michigan is in the dumpster. (Biden has led 16 straight head-to-head Michigan polls against President Trump)  A recent Fox News Poll has Peters up 10 points on James.  James has not led a single poll against Peters and is down by 6.8% in the Real Clear Politics average of recent Michigan polls.  The GOP is likely to give up on James and instead spend its money playing defense.

The top four Democratic targets to knock off Republican Senators have always been McSally in Arizona, Gardner (Colorado) Collins (Maine) and Tillis (North Carolina).  All four are trailing in the polls.

Winning those seats would bring, with the Alabama loss, the Democrats 1 or 2 seats from control of the Senate.  The thought, going into 2020, the Democrats would not have much of a shot of winning any other seat, leaving the party a seat or two short of a majority. That has changed.  The very popular Democratic Montana Governor, Steve Bullock, fresh off a presidential campaign that didn't go anywhere (unfortunately as he would have been a terrific general election candidate), reconsidered and agreed to run for the Senate against incumbent Steve Daines. A poll released this morning has Bullock up 7 points.

Meanwhile, the Republicans are trying to defend two Senate seats in Georgia.  Polling in the state is a bit convoluted because Georgia employs a "jungle primary" which takes place in November followed by a general election run-off if no candidate receives 50% in the primary.  Incumbent Kelly Loeffler is a gubernatorial appointee who is seeking to win the district in what is technically a special election.  Her popularity plummeted when she was accused of selling off stock for a hefty profit after being briefed early this year about the possibility of a pandemic.  Her Republican opponent, Doug Collins, is one of President Trump's staunchest, most outspoken supporters in the U.S. House.  That is a good thing in Collins' ruby red congressional district, but being that close to Trump is not necessarily a good thing in a Georgia general election.  The other Senator David Perdue, himself a strong Trump supporter who is facing re-election, is warning anyone who will listen that changing demographics and new voter registration puts Georgia in play for the Democrats.

While she was not originally a target, Senator Joni Ernst of Iowa has come onto the Democratic radar.  Iowa is a very rural state with a predominantly white population. That would seem to be Trump Country.  Indeed Trump won the state by 9.5% in 2016.  But Iowa has always had a liberal tinge that sometimes asserts itself  A poll released yesterday only has Trump up by 2% and Ernst up by 1.

Then there is Kansas.  Kansas???  Kansas has not elected a Democrat to the Senate since 1932.  Trump won the State by nearly 21 points.  But former Secretary of State Kris Kobach is the frontrunner to win the GOP nomination. And Kobach is not popular in Kansas.  A devout Trumper with an abrasive personality, Kobach managed to lose Kansas Governor's race in 2018.  In a poll released in mid-April, Kobach trails the Democrat Barbara Bollier by 2 points.  Bollier left the Republican Party in December of 2018, saying the GOP had lost its moral direction.

The Democrats even have secondary targets that might come into play.  While President Trump is quite popular in Kentucky, Senate Majority Leader Mitch McConnell is less so.  In a February poll, McConnell only led his opponent, the well-funded Amy McGrath, by 3 points in the Bluegrass state.

While Kentucky is a state where the President is running well ahead of the incumbent U.S. Senator, the opposite is true in Texas.  Trump is not popular in Texas.  Two recent polls show Biden running even with Trump in Texas.  But the incumbent Senator seeking re-election in that state, John Cornyn, has a double figure lead over his two possible Democratic opponents, who are set to square off in a run-off for the nomination.  Unless Trump falters greatly in Texas, Cornyn is probably in okay shape.

Trump devotee, Lindsey Graham, however, might be in trouble.  A poll released in late March showed him up only 4 points against Jaime Harrison, a Democrat with a very strong resume who has outraised Graham so far in 2020.

As things stand today, the Republican Senate majority is most definitely in jeopardy.

Monday, May 4, 2020

#MeToo Hypocrisy Highlighted By Liberals Different Treatment of Biden and Kavanaugh Accusers

Years ago I had a case in which a mother was trying to prevent my client, the father, from having any contact with their child.  She argued the father, a naturalized citizen, might take off with the child back to the country in Africa where he was born.  The mother's attorney brought in a national "expert" on child abduction. (I put "expert" in quotes as some jurisdictions had found her meager qualifications lacking for her to qualify as an expert witness.)   The expert said most people who abduct a child never threaten abduction before doing it. Therefore, since my client had never threatened to abduct a child, he fit the profile of a child abductor.


I am reminded of that case when it comes to men accused in the #MeToo era.  If a woman fails to report an allegation for two decades, that is said to be consistent with someone who has been assaulted.   If a woman continues to associate with the alleged perpetrator or praise him for years after the assault supposedly took place, well, that is also consistent with what many assault victims do.

What do you do when the only evidence you can use to prove a negative, that sexual misconduct did not happen, is said to be consistent with the your guilt?

That brings me to Tara Reade's accusation against presumptive Democrat Presidential nominee Joe Biden.  Reade says that Biden sexual assaulted her 27 years ago when Reade worked in Biden's Senate office.   A couple days ago, USA Today published an editorial by former federal prosecutor Michael J. Stern who outlines in detail why he is skeptical of Reade's claims.

I completely agree with the reasons for Stern's skepticism.  But I cannot help note the hypocrisy in how #MeToo allegations are handled depending on whether the accused is a conservative Republican or a liberal Democrat.

The accusation against now Justice Kavanaugh was about an assault that supposedly happened at a party more than 35 years earlier when both he and the accuser, Christine Blasey Ford, were teenagers  Ford could not remember much in the way of details about the party and her allegations were not confirmed by people she identified as being at the party.  Yet liberals and much of the media DEMANDED Kavanaugh be considered guilty.

The Reade sexual assault allegation against Biden also has similarities with Anita Hill sexual harassment claim against Clarence Thomas during the latter's confirmation hearing.  Hill like Reade continued to associate with the supposed perpetrator and continued to praise him.  Hill like Reade never took any sort of action against the person she later accused of misconduct.  (There is at this moment still a question if Reade filed a sexual harassment-type - not sexual assault - complaint against Biden.)  Thomas like Biden did not have a history of mistreating women and was extremely popular with the female employees who worked for him.

Ironically, Biden was the Chair of the Senate Judiciary Committee during the Thomas hearing.  People forget though that things were not going well for the Democrats during that hearing.  After testimony from both Thomas and Hill, the public, including African-Americans, overwhelmingly sided with Thomas.  Several Senate Democrats announced they would support Thomas.

Right before the conclusion of the hearing, the Democrats opposed to Thomas managed to dig up a couple former Thomas employees who agreed to testify their boss had acted inappropriately with them.  During pre-hearing interviews, they proved to be very weak witnesses with flawed stories.  Biden knew they would be ripped apart during cross-examination and that would further strengthen Thomas' claim of a "high tech lynching."  So Biden cut a deal to read into the record their accusations, with Republicans having no opportunity to cross-examine the testimony.   Biden's maneuver was smart. It gave the Democrats the best chance to defeat Thomas.  Yet while running for President he was unjustifiably vilified by his Democratic opponents and the left wing media for supposedly mishandling the Thomas hearing and ensuring his confirmation.

Today, Hill and Ford are considered to be liberal heroes - women victims who stood up to powerful men.  My guess is Reade won't be treated withthe same adulation.

The Reade allegation is highly unlikely to derail the Biden candidacy especially since the former vice President is up against an opponent who has not one, but nearly two dozen women who have accused him of sexual assault.  But hopefully it will shed some light on the hypocrisy in how these types of allegations are handled.   If you are a conservative Republican, you are presumed guilty.  If you're a liberal Democrat, you are assumed to be not guilty.

Professor Eddie Glaude, Jr. of Princeton University, a frequent MSNBC commentator, attempted to make a distinction between Biden and Kavanaugh.  He said Biden has treated Reade and her accusation with respect while Kavanaugh was dismissive of his accuser  So Glaude believes Biden is innocent, while he considered Kavanaugh guilty the very minute he was accused by Ford.  No evidence was needed for that.

The approach Glaude takes is absurd.  I'm sorry, but if you know a person is making a false claim of sexual assault against you, trying to destroy your reputation and career, you do not have any obligation to treat her or the false allegation with "respect."  You should be outraged.   A false accusation of sexual assault is not only defamatory, it may well be a crime to make such an accusation.  Since when do we demand a crime victim treat the person who committed the crime with respect?

Nonetheless, the assertion that the #MeToo movement is about treating the accuser and her allegation with "respect." is pure revisionism.  The #MeToo movement was about believing the women and assuming men are guilty when accused.  In Biden and Kavanaugh's case, their burden under #MeToo is to overcome the assumption of their guilty by proving a sexual assault which supposedly happened decades earlier did not happen.   That is nearly an impossible burden.

We need to get over the nonsense that just because a sexual harassment or sexual assault accusation is not deemed as proven means the female accuser is not believed.  If the act is not proven that does not mean the accused is innocent and the accuser was lying.  It means that fundamental fairness dictates that we do not require someone who is accused of misconduct, to prove a negative, i.e. that the act did not take place.

The #MeToo movement should be applauded for playing an important role in encouraging women to not be afraid to make accusations of misconduct even against powerful men.   The #MeToo movement should not be applauded though when it is used a tool to undermine the due process and fundamental fairness to which anyone accused of misconduct is entitled.

Wednesday, April 29, 2020

Indianapolis Political Leaders Wagered the Future Would Look Like the Past ... It Was a Bad Bet

In anticipating what Indianapolis would look like deep into the 21st Century,city leaders bet heavily that it would resemble what it looked like in the past.  They built a big downtown mall for shopping.  They subsidized professional and amateur sports, expansions of the convention center, downtown hotel and office developments.   Indianapolis even gave away control of street parking meters with a 50 year lease that provided guaranteed income to the vendor should those spaces not be used for parking.  City officials are now in the process of spending hundreds of millions of dollars to upgrade the bus system. 

City leaders envisioned that, in the future, huge throngs of people would continue to pack into Indianapolis downtown venues for shopping, conventions and sporting events.  They saw no end to people driving private vehicles (although they tried to encourage people to ride the bus) to their white collar jobs in big downtown office buildings.  They thought gentrification, the movement of younger, upwardly mobile people downtown, would continue for several decades to come.

These bets about Indianapolis' future were always made using taxes paid by hard working men and women.  Often they were part of "public-private partnerships," which means the public assumes the risk while the private companies, usually big political donors to the mayor's campaign, get the profits.

When you look at the bets Indianapolis city leaders made about the future, it was almost always that what happened in the past would continue to define the future.  The sole exception was city leaders believing fossil fuel vehicles were on the way out.  They bought hybrid and electric city vehicles, electric buses, and allowed a private company to operate an electric car rental company using prime Indianapolis city parking spaces.  The electric car rental business failed.   As far as the aforementioned 50 year parking meter contract, just ten years in city leaders are desperately looking to break the lease.

It is not clear whether the Covid-19 crisis will cause changes to American cities or whether the pandemic is merely speeding up changes that were already in the works.  Clearly, people shopping at malls is on the way out.  But so too are companies and groups holding large annual conventions.  (Yet, Indianapolis city leaders kept insisting on expanding the convention center to get a bigger piece of a clearly shrinking pie.)  Telecommuting has been an option for a number of white collar workers for years, but it was never well-developed before the current crisis. 

The Indianapolis of 2050 is unlikely to look anything like it looked in February 2020.  Driverless cars do not need street parking.  Increased telecommuting will decrease the need for office space and reduce vehicles on the road.  Air pollution will decrease.  The crowds downtown will dwindle.  People will shop even more online as retail businesses continue to fail.  The movement of people from large cities to the suburbs, exburbs and even rural areas, originally fueled last century by better private transportation, will resume thanks to telecommuting. Gentrification may well turn out to be a fad.  People do not need to live close to their jobs and shopping when they can merely walk steps to their home office and shop on-line.

Indianapolis leaders bet Indianapolis 2050 would look it did in the past.  It was a bad bet.

Sunday, April 26, 2020

Former Georgia Governor Candidate Stacey Abrams Needs to Be Fact-Checked on Bogus Stolen Election Claim

Fact checkers have been all over the lies of Donald Trump (and rightfully so) since he was elected President in 2016.   One such lie often repeated is the claim that millions of "illegals" voted for Hillary Clinton in the election that year, which is why she ended up winning the popular vote by 2.1 million.  Supposedly this was an organized effort by Democrats, focused primarily in California.   Given the nature of the Electoral College, such an effort in the Golden State makes no sense.  Hillary Clinton was going to win California anyway and padding the popular vote there gains nothing.

2018 Georgia Governor Candidate Stacey Abrams
The media has consistently pointed out that there is no evidence to support Trump's millions of "illegals" voting claim. Correct.  But when it comes to the claims made by former Georgia gubernatorial candidate Stacey Abrams that her opponent, now Governor Brian Kemp, suppressed the vote, causing her to lose the 2018 election, fact-checkers are nowhere to be found.  The media simply repeats her claims without any fact-checking whatsoever.

To recap, Stacey Abrams, former minority leader in the Georgia House of Representatives, ran for governor in 2018 against Brian Kemp who was then Georgia Secretary of State.   Abrams was very popular with the mainstream media, and her efforts earned her considerable free coverage of her campaign. However, Abrams lost to Kemp by 1.4% of the vote, very close but well outside the margin which would have triggered an automatic recount.  Abrams refused to concede the race and instead has since the election peddled the narrative that were it not for "vote suppression" by Kemp in his role as Secretary of State, she would have been elected Governor of Georgia.

Abrams "voter suppression" fairy tale consists of three parts:  the purge of non-voters from the voting registration lists, the exact match requirement which made some new registrations "pending," and the long lines at polls created by consolidation of precincts.   The National Review explains the purge Kemp did:
The claims of voter suppression rest primarily on the fact that as Georgia secretary of state, Kemp enforced a statute passed by a Democratic-majority legislature and signed by a Democratic governor in 1997. It required the voting rolls to be periodically purged to remove names of voters who were dead, or who had moved away or were incarcerated. Under this law, 600,000 names of people who hadn’t voted in the last three elections were removed from the rolls in 2017 by Kemp’s office.  
Those who were removed got prior notification in the mail about the impending purge, and they were given a menu of options to retain their registration. Moreover, it took four years to complete the process by which a name was removed. The reason so many names were taken off in 2017 was that a lawsuit by the Georgia NAACP had delayed the routine enforcement of the law for years before the organization eventually lost in the U.S. Supreme Court.  
If you assume that most of the 600,000 were Democrats who were denied the right to vote — rather than voters who were deceased or who had moved or been jailed — that gives credibility to Abrams’s story. But there aren’t many people stepping forward since November 2018 to say they were wrongfully removed from the rolls, let alone the tens or hundreds of thousands necessary to substantiate Abrams’s claim that the election was stolen.
As a precinct committeeman, ward chairman and candidate, I've worked with voting histories numerous times and watched how purges to clean up voter registration rolls work.  One thing I know extremely well is that if a voter has not voted in a single election during a four year period, there is about a 99% chance that voter is deceased or has moved from the precinct.  In fact, the entire time I worked in the precincts, I do not recall a single voter who had not cast a ballot in the precinct during a four year election cycle, showing up to vote in that precinct. 

As a result of the 1993 National Voter Registration Act (Motor Voter Law), states now have to attempt to notify those non-voters before they are purged from the voter lists.  The difficulty in purging these voters who have died or moved has resulted in grossly bloated voter registration lists.  I know this very well because I have documented how Indiana has scores of counties with voter registration rates at 90% or more, some even higher than 100%.  This includes Marion County (Indianapolis) which at one time had a 105% registration rate. 

The notion that Stacey Abrams could have made up her 50,000 vote deficit from this pool of 600,000 people who had not voted a single time in at least four years and as many as ten years or more is pie in the sky stuff.  If she got a net 60 vote bump from that pool of purged voters I would be surprised. 

Indeed, contrary to Abrams claims of tens of thousands of disenfranchised voters, nary a Georgia voter has come forward and said they were not able to cast a ballot during the 2018 election.  In fact, contrary to Abrams' "voter suppression" claim, the 2018 Georgia election featured record turnout.  In 2014, 2.5 million Georgians voted for Governor.  In 2018, that rose to 3.9 million, nearly matching the Georgia vote total for President in 2016.  This increased turnout, included a 60% turnout among African-Americans in 2018, an incredibly huge mid-term turnout that even exceeded black turnout in the 2016 election with a hotly contested presidential race on the ticket.

A second complaint is that 53,000 voter registrations submitted by Abram's voter registration organization were put on hold for failing to have an exact match of the data the Secretary of State's Office already had on file of those individuals.  Once again, Kemp was just enforcing an existing law.  All Kemp's action did was make the registrations "pending" which would then become "active" when the voter actually showed up at the polls and presented a photo ID.  Clearly, considering the turnout numbers, there is no reason to believe Kemp's actions actually blocked these voters from casting ballots.

A third complaint is that Secretary of State eliminated over 200 voting locations which resulted in long lines that caused Democrats to turn away.  That argument also doesn't hold water upon examination:
The other argument that purportedly backs up the stolen-election claim is that lengthy lines caused by the closing of 212 precincts in the state since 2012 deterred Georgia voters from turning out. But Kemp had nothing to do with that, since all decisions on consolidating voting stations were made by county officials. Which means if there were fewer precincts and longer lines in Democratic-majority counties in Georgia, it was almost certainly due to the decisions made by local Democrats, not Kemp or a national GOP conspiracy.
Abrams performance as Georgia gubernatorial candidate was impressive.  She could have built on that performance and easily been a top candidate, if not the favorite for one of the two Georgia U.S. Senate seats on the ballot in 2020.  But Stacey Abrams considers herself too important to be a U.S. Senator from Georgia.  She should be Vice President!  Despite having a political resume more limited than the often derided Republican VP nominee, Alaska Governor, Sarah Palin, Abrams is on a media tour campaigning to be Joe Biden's running mate.

Georgia Democrats should be furious at Stacey Abrams who turned her back on them.

Do not get me wrong.  I am certainly no fan of Georgia Governor Brian Kemp.  His blind support for all things Trump is disgusting and his leadership during the Covid-19 crisis has been astonishingly bad.  But the notion Kemp stole the election from Stacey Abrams in 2018 is utter nonsense.  Abrams needs to be called out for misrepresenting the truth about that election.

Thursday, April 23, 2020

November Election Could Get Really Bad for Republicans

News yesterday portend the distinct possibility that November's election will be calamitous for the Republican Party.

Three battleground polls came out showing Trump trailing.  Fox News polls show President Trump trailing Joe Biden by 8 points in Michigan and Pennsylvania.  A Quinnipiac poll has Trump losing Florida to Biden by 4 points.  While the later result is well within the margin of error it is nonetheless noteworthy.  Going into Election Day 2016, Trump led (albeit narrowly) polling in Florida in 2016 and ended up winning the state by just over 1%.

Right now, Biden leads the polls in every swing state.  That includes Ohio, which Democrats were foolishly set to write off just months ago.   Using today's polling averages (or recent polls if there are not enough polls for Real Clear Politics to offer an average), Biden would win 352 electoral votes to Trump's 186 assuming the polls broke exactly as they are now.

More notably, Biden has gotten this lead while sitting in his basement while Trump is given free media time, seven days a week, to say whatever he wants about Covid-19 or any other topic during his daily press conference.  Trump fashions himself as his best spokesperson.  Hint...he is not.  The continued coverage of Trump at these pressers makes the President look like the person  who he really is  - a man who is ignorant, unprepared, dishonest and a bully.  Trump has demonstrated beyond any doubt that he is more interested in positive spin than being honest with the American people about the sacrifices that are needed and the difficult days ahead.  Given the hours of free media time, you would think Trump would at least once get around to displaying some empathy toward Americans who have gotten sick or died during the pandemic.  Nope.  Covid-19 is not about people getting sick and dying or people losing their jobs. Covid-19 is about Donald Trump.  In Trump's mind, everything is always about him.

Trump's edge regarding his handling of the economy (standard admonition that Presidents do not run the American economy) is just about gone.  A CNN poll this month has Trump's approval on the economy down to 48% a drop from 54% in March.  That may be just the beginning of of
John James, Republican Candidate for Michigan Senate
the decline, however.  60% of Americans now view the economy as "somewhat poor" or "very poor."  Meanwhile, this morning it was announced that 4.4 million Americans filed for unemployment last week.  That makes a total of 26.5 million who have filed since March 14th.  When the numbers are released in early May, some economists believe unemployment will approach 20%, depression era type numbers. 

Don't expect a repeat of the 1936 election, however.  Trump is not Herbert Hoover.  Unlike Hoover, Trump has a loyal band of followers, maybe as much as 38% of the electorate nationwide (obviously higher in some states), who will support him, now matter what.  Unlike Hoover, Trump has media outlets, from whom conservatives get almost all their news, that will praise him no matter what he does.

Trump's base will ensure red states will have enough of a reddish hue to prevent a wipeout of the Republican Party in the 2020 election.  But the backlash may well be enough for the Democrats to oust enough Republican Senate incumbents in competitive seats to take control of the Senate. It may even make competitive Democratic opponents against Senators like Mitch McConnell in Kentucky and Lindsey Graham in South Carolina,  races which could only won if the Democrat at the top of the ticket wins big..  Yes, keep an eye on the Senate.

Expect that many GOP candidates, with nomination in hand, to begin distancing themselves from President Trump.    John James,an Army veteran and businessman, is making his second run for the Michigan Senate. James who praised Trump in the primary round and in 2018, has found Trump is major liability going into the Fall, even in swing state Michigan.  So James has taken to emphasizing his "independence" in an effort to assure the voters he would not be a Trump rubber stamp.  The strategy is not working.  James, who has trailed incumbent Gary Peters in every 2020 poll, now finds himself 10 points behind in the most recent Fox News poll.

Even Republican Governors, most who are enjoying a bump from their handling of the Covid-19 pandemic in their states, will likely see their approval ratings decline as the crisis fades away and the economic downturn takes center stage. Here in the Hoosier state, Republican Eric Holcomb enjoys a 20 point lead over his Democratic opponent Woody Myers according to a recent Indy Politics/Change Resource poll.  That is in comparison to Trump's 13 point lead over Joe Biden.  Mark my words, the Indiana Governor's race will get a whole lot closer before November.

There is still time for the GOP to turn things around for the Fall election.  But the Covid-19 virus needs to go away this summer and the economy needs to snap back dramatically by September, if not August.  While both seem highly unlikely, there is still a chance.

Monday, April 20, 2020

Republican Attacks on Free Speech Are Unacceptable and Unpatriotic

The Republican Party, before Donald Trump, used to cherish free speech.  Even when liberal-leaning journalists were using the First Amendment to misrepresent right-wing views, conservatives never stopped supporting the principles of the First Amendment, which has been interpreted to provide maximum protection to political speech.   That has all changed in the Trump era, which has featured the President and his Republican allies filing baseless defamation, i.e. SLAPP lawsuits, designed to shut up their critics.

SLAPP stands for "strategic lawsuit against public participation."  If is a type of defamation suit filed
by someone with deep pockets against a critic who often lacks financial resources.  A SLAPP lawsuit takes advantage of the American Rule which says win or lose, you are responsible for paying your own legal expenses.

Plaintiffs do not file SLAPP lawsuits believing they can win on the merits.  Rather, the goal is to drive up the critic's legal expenses so much that the critic agrees to stop saying bad things about the plaintiff in exchange for the plaitniff dismissing the lawsuit.  The plaintiff succeeds not only in getting the critic end the criticism, it is intended to stop others from criticizing the plaintiff yet they too might face a lawsuit.

Many state legislatures, including several dominated by Republicans, have found the use of the technicalities of who pay legal expenses to attack free speech to be so outrageous that they have passed anti-SLAPP statutes.  These laws reverse the American Rule so that in these sorts of defamation cases the winner has to pay the losers' legal fees.  In the states which have strong anti-SLAPP statutes, the use of fake defamation lawsuits to shut up critics has virtually disappeared.

Earlier this month, the Trump campaign filed a SLAPP lawsuit against a small television station in northern Wisconsin which dared to run an ad which criticized Trump's handling of the Covid-19 crisis.

The Associated Press describes the lawsuit:
President Donald Trump’s reelection campaign is suing a Wisconsin TV station for running an anti-Trump commercial that pieces together audio clips of the president talking about the coronavirus outbreak in a way they argue is misleading and false.  
The ad by the Democratic super PAC Priorities USA features a series of soundbites in which Trump downplayed the threat posed by the virus, while a chart that is splashed across the screen gradually begins to shoot upward as cases of the virus skyrocketed across the U.S.  
The lawsuit alleges the ad splices together the clips in a way that makes it appear as though the president said the virus was a “hoax.” Trump’s campaign argues that the president did not call the virus itself a “hoax,” but was instead referring to Democrats who have politicized his handling of it.
The comments in question were made by Trump at a February 28, 2000 South Carolina rally.  While the "hoax" comment was in the context of Trump criticizing the Democrats' response to the then still developing crisis, Trump went on during the rally to downplay the seriousness of the spread of the virus, which just a few weeks later would be reclassified as a "pandemic."

 The "hoax" distinction the lawsuit attempts to make falls far, far short of what is needed to win a defamation lawsuit that targets political advertising, the most protected type of speech under our First Amendment.   Of course, the Trump campaign has no expectation of winning the lawsuit on the merits.  It was no accident that the lawsuit was filed in Wisconsin, which is one of the few states which has no anti-SLAPP law, in a county which Trump won by more than 60%.  The presiding judge in the court was appointed by former Republican Scott Walker.

This is not the first SLAPP lawsuit the Trump campaign has filed.  The Trump campaign this year filed defamation lawsuits against the New York Times, the Washington Post, and CNN, not for inaccurate news stories, but for editorials the Trump Campaign claimed included false statements about Russian interference into the 2016 election. 

The Trump Washington Post lawsuit was filed in the D.C. federal district court and the CNN lawsuit in a Georgia federal district court.  Not coincidentally, there is no federal anti-SLAAP statute.  Meanwhile, the New York Times lawsuit was filed in New York state court.  New York has a very weak SLAPP statutute, a law graded as a "D" by the Public Participation Project which supports the enactment of anti-SLAPP laws.

Trump is not the only Republican filing lawsuits attacking free speech.  California Congressman Devin Nunes has filed several SLAPP lawsuits against critics, journalists, political operatives, and even a satirical internet cow.  (It is unclear where he is getting the money to finance all these SLAPP lawsuits).  But instead of filing them in California, which has an "A" rated anti-SLAPP law, Nunes opted to file them in Virginia which has a substantially weaker SLAPP law.

Even the Hoosier state is not immune to defamation lawsuits being threatened by politicians to try to stop negative press coverage.  My colleague at Indy Republican reminded me that Indiana Governor Eric Holcomb had his attorneys issue two cease and desist letters to media outlets for publishing a story about the state allegedly agreeing to waive safety fines for a worker killed at an Indiana facility as part of a package to lure a second Amazon headquarters to Indiana.  The C&D letters prompted a response from the Indiana Society of Professional Journalists, which was re-published yesterday by Indy Republican:
Dec. 3, 2019 
Honorable Eric J. Holcomb Governor of Indiana 200 W. Washington St. Indianapolis, IN 46204 
Dear Gov. Holcomb: 
The Indiana Professional Chapter of the Society of Professional Journalists takes exception to your call for the Indianapolis Star and Reveal from the Center for Investigative Reporting to cease and desist reporting stories about your administration’s handling of worker safety investigations at Amazon facilities in Indiana. 
Our organization, which represents professional journalists throughout Indiana, feels this move is a threat to press freedom. According to Article I, section 9 of the Indiana Constitution: “No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”
In our view, your cease-and-desist letters, issued on Nov. 29, are designed to intimidate reporters and journalists looking into your administration. The letters also add to the overall climate in the nation that looks to undermine the credibility of journalists and media outlets. 
Although you might not agree with the contents or conclusions of the report in Reveal and the Indianapolis Star, an unusual call by your office for a cease-and-desist order against the media could chill efforts to report an ongoing story. 
Indiana Pro SPJ stands behind the efforts of local and national journalism outlets to report issues of public importance and hold leaders accountable. If there are disputes over accuracy, there are ways to address those concerns without issuing a cease-and-desist order. 
Indiana should set an example for the rest of the nation to follow when it comes to press freedom. Our officers would welcome the opportunity to meet with you and discuss this issue further. 
The Board of Directors Indiana Professional Chapter Society of Professional Journalists
Amen.  Not surprisingly, no lawsuit was ever filed, no doubt because Indiana has a "B" rated anti-SLAPP statute.  Nonetheless, Governor Holcomb was way over the line for threatening, using taxpayer paid attorneys no less, lawsuits which he and his advisers knew had no chance of prevailing on the merits.  Clearly the the C&D letters were aimed at chilling media criticism of the Holcomb administration.

We Republicans need to be better than this.  The media is not the "enemy of the people."  The "enemy of the people" are those who file, or threaten to file, SLAPP lawsuits to chill freedom of speech.  Trump, Nunes, and Holcomb deserve the wrath of the voters for their unpatriotic attacks on the First Amendment.

Friday, April 17, 2020

Federal Election Commission Powerless to Enforce Campaign Finance Laws Heading into 2020 Election

On its website, the Federal Election Commission describes its mission as: "protect[ing] the integrity of the federal campaign finance process by providing transparency and fairly enforcing and administering federal campaign finance laws."

The FEC notes that federal campaign finance law covers three areas:
  • Public disclosure of funds raised and spent to influence federal elections
  • Restrictions on contributions and expenditures made to influence federal elections
  • The public financing of presidential campaigns
Of course, most people involved in politics know there is a $2,800 limit on individuals giving money to federal candidates, such as someone running for Congress or President.  Other people may be aware that corporations are completely banned from donating to federal candidates, including in kind contributions such as a corporation providing an airplane or a fleet of vehicles to a favored candidate. 

 Another campaign finance law which got more publicity during the Trump years is that foreign nationals and foreign governments are strictly forbidden from doing money or making in kind contributions (such as opposition research) in American federal elections.  

The FEC has the authority to launch investigations and take action to enforce these federal campaign finance laws.  Commissioners, who run the FEC serve staggered six year terms, with two seats up every two years.  The appointments are made by the President and confirmed by the Senate.  No more than three of the six Commissioners can be of a particular political party. If a Commissioner's term is up, he or she can remain on the Commission until replaced.  In fact, all three current sitting FEC Commissioners terms officially expired long ago, the most recent one was up in 2013.

To taken an enforcement action requires, the FEC needs to have a quorum of Commissioners present.  As of last Fall, two Commissioner positions were vacant.  With four members, the FEC had a quorum (barely) to take enforcement actions.  But then, on August 26, 2019, FEC Commissioner Matthew Peterson, a Republican, suddenly resigned from the Commission, leaving the FEC's current and future enforcement actions in limbo.  Peterson was may be best known for his December 2017 performance before the Senate Judiciary Committee.  Appointed by President Trump to a DC federal judge position, Peterson failed to impress even the GOP majority in that chamber when Peterson could not answer several basic legal questions posed by Senator John Kennedy, a Republican from Louisiana.  Peterson's performance during the confirmation hearing went viral and he withdrew his name from consideration.  

Despite the fact President Trump could appoint all six FEC Commissioners, he has only appointed only one during his three plus years in office.  In 2017, he appointed Trey Trainor to replace Peterson who expected to become a federal judge.  Trainor, an Austin, Texas based attorney and fervent supporter of the President, was know for fighting the Texas Ethics Commission over campaign finance disclosure and having a deregulatory attitude toward money in politics.  His appointment made ethics watchdogs and even some Republican Senators queasy.  Further, the appointment violated the previous practice of a President nominating, at the same time, two candidates, one Republican, one Democrat, to the bipartisan FEC.  When Trainor and Peterson's appointments went nowhere in the GOP-controlled Senate, Peterson stayed on as FEC Commissioner.  That is until last Fall when Peterson suddenly resigned as FEC Commissioner, providing no reason for his departure.

In a February 21, 2020, article, the publication Government Executive explained the impact of Peterson's resignation:
At the start of 2019, the FEC had 344 enforcement matters at various stages and 101 were awaiting commission action (such as a vote or dismissal). By September, the commission was able to get the numbers down to 272 for enforcement matters at all stages and 63 awaiting commission action, according to Weintraub’s year-end report. However, with the loss of a quorum the caseload has increased to about 300 and the number of cases awaiting action rose to 119, said Weintraub. 
“Honestly the biggest story at the FEC is what’s not happening and that is anything that would require a working commission. It’s really unfortunate,” said Weintraub. The commission is supposed to have a six-member board, and it needs four members for its proceedings to be valid. With only three commissioners the agency cannot launch investigations, issue advisory opinions, publicize rules and make decisions on enforcement actions. This includes dealing with cases involving “illegal, undisclosed and even foreign money spending into election 2020,” the Center for Public Integrity stated. 
With the presidential election less than a year away, The New York Times on Thursday reported that intelligence officials warned lawmakers last week about “what appeared to be new information” on Russian attempts to interfere in the 2020 election, just like in 2016. Election interference can take on many forms—voting machine hacking, cyber attacks, disinformation campaigns on social media and foreign spending through political action committees. 
Given the ongoing threats of foreign interference in the 2020 elections, "to not have the FEC able to take action right now is deeply concerning,” Daniel Weiner, a former FEC senior counsel, now Brennan Center for Justice deputy director for election reform, told NPR in late-August. He said the agency is on the "front-line" of combating foreign interference and it will be “impossible until that seat is filled” to take up measures to prevent foreign manipulation.
Leaving the FEC without enforcement power means that, should there be a violation of federal campaign finance law that has criminal penalties attached, such as foreign governments trying to aid the Trump Campaign, that law can only be enforced by Attorney General Bill Barr's Justice Department.  Good luck with that.