Friday, June 15, 2018

Apology to Commentators on Blog

My apologies to those who have attempted to comment on my recent blog articles.  Apparently the feature is not working.  I will work to try to get it fixed.  Until then, perhaps people should just consider I am right so why bother with a response?  Unless, of course, it is to publicly congratulate me for being right.  I like it when people do that.

Thursday, June 14, 2018

Toll Roads Appear on Horizon Thanks to Indiana General Assembly

During the 2017 Indiana General Assembly, our legislators increased the gas tax by 10 cents a gallon.  While I was concerned about such an increase, particularly because the gas tax is not dedicated 100% to road improvements, my bigger concern was a provision in the bill which bestowed upon the Governor the unilateral authority to impose tolls on Indiana interstates.  

I loathe toll roads.  Tolling limited access roads like interstates divert large volumes of traffic to non-
tolled, local roads not capable of handling the additional vehicles.   Those cars end up in neighborhoods where people work and play.  Their safety is endangered.   Home values decrease as more cars speed by residents' front doors.

There is one thing though I hate more than toll roads.  I utterly despise when legislative bodies abdicate their responsibility by giving the executive what should be legislative power, particularly when it is a blank check to raise my taxes (yes, tolls are a tax).  Undoubtedly Republican legislators who control the legislature were thinking they  could escape responsibility for raising taxes in the future by giving Governor Holcomb the power to impose tolls, a move that would be highly unpopular with voters.  Plus, their thinking is that since the Governor is a Republican, he can be trusted  to handle the tolling authority in a responsible, i.e. conservative, way. 

For the sake of taxpayers, let's hope so.   From an Indianapolis Star article from Monday:
 
A strategic plan that could clear the way for Indiana to add tolls to its interstate highways, including inside the I-465 loop in Indianapolis, is being developed by a state contractor.
The state just signed a $9.6 million contract with HNTB Indiana Inc. to study the impact of tolling and provide project planning if the state chooses to move forward with tolling
The administration of Gov. Eric Holcomb is required to study tolling under the road-funding plan lawmakers passed in 2017 but hasn't officially decided to impose the fees on motorists. 
Under the law, Holcomb also is permitted to draft a strategic plan "if the governor determines that tolling is the best means of achieving major interstate system improvements in Indiana." 
Delegates to the 1850 Indiana Constitution Convention purposefully gave the Indiana General Assembly the power to check the power of governor.  That is not done when the legislature bestows upon the Governor what is essentially legislative power.  It is particularly irresponsible when the legislature gives the governor the unfettered authority to raise taxes.  If tolls happen in Indiana, which looks very likely, let's not forget to blame the legislators who made those new taxes possible.

Sunday, June 10, 2018

Closer Look at California Primary Results Reveals Democratic Surge in Participation

After writing about the California primary election results being favorable for the Democrats, I ran across an article written Dan Palmer of The Hill who wrote an article titled "There is No 'Blue Wave' in California."  In the article, Palmer aggregates the partisan vote in the California jungle primary and then concludes that, since Republican candidates received more vote than the Democratic candidts in virtually every key district the Democrats have targeted, the GOP will win those districts in the fall.

The article includes a description of Palmer's background:
Dan Palmer is a Republican donor and conservative political strategist. He served as executive director of United We Stand, planned the potential transition of Sen. Ted Cruz (R-Texas), and supported the campaigns of Rep. Kevin McCarthy (R-Calif) and President Trump.
Given Palmer's background, I am certain he is well aware of the absurdity of his political analysis.  No
doubt he is simply doing what so many conservative commentators are doing these days, telling their audience what they want to hear rather than the far more painful truth. (For another recent example, take Newt Gingrich's piece "The Red Wave is Growing.")  

In analyzing election results, you compare apples to apples, oranges to oranges.  Mid-term elections get compared to mid-term elections.  Presidential election years get compared to other presidential election years.  Why?  Those elections feature starkly different electorates.  Likewise, those who turn out for a general election are far different than those who turn out in the primary which proceeded it. 

That is a phenomenon I personally experienced while running for the House in 2000.  I won the primary for the northwest Indianapolis district.  My Republican opponent and I combined had the primary vote than did the Democrat.  But on the day of the general election, I did not beat my opponent 2-1, but rather only received, rounded off, 40% of the vote.  What happened?  Different electorate.  Voters did not like George W. Bush in that district, and they turned out in droves to vote against him.  My candidacy experienced the collateral damage of increased Democratic-leaning turnout spurred by a race at the top of the ticket.

Again, no doubt Palmer is well aware of the silliness of extrapolating primary vote to predict general election results.  But the primary election results can be used to measure partisan trends in those California Congressional districts.  In employing the apples to apples, oranges to oranges principle of political analysis, I have compared the aggregate partisan primary turnout in 2014 compared to 2018 in the key California districts at play this fall.  Below is what I found.




District 7 10 21 22 25 48 49 50
2014 GOP Vote 34,197 27,495 24,039 49,255 32,028 63,513 56,558 48,413
2014 GOP Pct 51.9 57.3 64.2 74.4 66.7 72.3 61.5 73.7
2014 Dem Vote 31,726 20,465 13,402 16,986 16,005 24,384 34,849 17,269
2014 Dem Pct 48.1 42.7 35.8 25.6 33.3 27.7 38.5 26.3
2018 GOP Vote 37,627 48,475 23,575 42,554 46,042 55,842 53,343 64,706
2018 GOP Pct 46.6 52.2 64.0 59.1 52.9 53.5 48.8 64.0
2018 Dem Vote 43,039 44,437 13,821 29,406 40,992 48,517 55,927 36,439
2018 Dem Pct 53.4 47.8 36.0 40.9 47.1 46.5 51.2 36.0
Democrat Primary Share Increase 10.6 10.2 0.4 30.6 27.637.625.419.4

These tables show that while both parties experienced much higher primary vote in 2018 than 2014, the Democrat primary vote share increased in every district, some districts significantly.  
That is consistent with the markedly increased Democratic turnout that has has been seen in virtually every special election race since the 2016 presidential election.   Primary results do not mean the Republicans will lose those districts, however.  Again, the general election electorate is much different than the much smaller turnout that happens in a primary.

Thursday, June 7, 2018

California Primary Election Results Fuel Democrats' Hope For a Congressional "Blue Wave"

A few years ago, California, via referendum, adopted a "jungle" primary system.  Basically the way it works is that all primary candidates are lumped onto one ballot for the voters and the top two candidates move on to the general election, regardless of party.

It was a reform supported by then Republican Governor Arnold Schwarzenegger.  However, like most election reforms, there have been unintended consequences.  One of those "unintended consequences" is that in a multi-candidate field, the primary vote could be so splintered that candidates from one of the
Rep. Dana Rohrabacher (R-Russia)
major parties could be closed out of competing in the fall despite the fact that party could prevail in the general election.  California is particularly ripe for such an outcome because the state has easy access ballot law leading to primary races featuring a lengthy list of candidates.  In several races on Tuesday, candidates finished second, and advanced to the general election round, with as little as 15% of the vote.

On election night 2018, the Democratic takeover of the House, if it happens, may come down to late-reporting California.  There are a number of takeover targets in California in which Republican congressional candidates but are vulnerable due to Trump's unpopularity in their district  But the jungle primary presented the very real possibility that the Democratic primary vote would be so splintered that the GOP candidates would take the top two positions, leaving the Democratic opponent closed out of a very winnable general election race.

A review of Tuesday nights election results reveals that with the exception of one congressional contest, California Democratic candidates avoided being shut out of the general election.  Here are the election results in a few of the most prominent such districts:

California 10
Denham (R)  24,640  37.7%
Harder (D)  10,244  15.7%'
Howze (R) 9,394  14.4%

Calilfornia 39
Kim (R) 18,851  22.0%
Cisneros (D) 16,623  19.4%
Liberatore (R) 11,990  14.0%

California 48
Rohrbacher (R) 33,198  30.4%
Keirstead (D) 18,827  17.2%
Rouda (D) 18,782  17.2%
Baugh (R) 17,601  16.1%

California 50
Hunter (R) 43,233 48.7%
Campa-Najjar (D) 14,445  16.3%
Wells (R) 11,626  13.1%

A notable exception is California 8, a district based in San Bernandino County that is currently represented by Rep. Paul Cook, a Republican.   That district though was always a long-shot for Democrats to win.

California 8
Cook (R) 29,403 41.5%
Donnelly (R) 16,024 22.6%
Doyle (D) 15,264 21.4%

By any objective measure, the Democrats should be happy with the California election results which set up the party to win several California congressional districts in the Fall.  But over at Fox News Trump TV, analysts don't deal in objectivity.  They deal in propaganda as well as the proverbial whistling while walking by the graveyard..  Fox News analysts are celebrating the second place primary finish of GOP gubernatorial candidate John Cox who had the enthusiastic backing of President Trump.  While the importance of having a major GOP statewide candidate on the general election ballot (top ballot races spur turnout and the Republicans were shut out in the CA Senate race) cannot be underestimated, the notion that a Republican, much less one closely tied to Trump, is going to win the California governorship this Fall is absurd. 

Equally absurd is one Fox analyst who extrapolated the party primary vote in key races to what is likely to happen in the general election.    As any political analyst knows, the voters who go to the polls in a low-turnout primary do not equate, in any way, those who vote in a general election.  I know that from personal experience.  As an Indiana house candidate for a district on the northwest side of Indianapolis, I won the GOP primary in 2000.  My primary vote and that of my GOP rival totaled more than twice the Democratic vote in the district.  So did I win the general election, much less 2-1?  Nope, I received about 40% (I always round up) of the vote that Fall.  Voters in my district did not like George W. Bush and Democratic-leaning voters turned out heavily to vote against him.

There was certainly nothing in Tuesday's California election results that indicates the possibility of a blue wave this fall has diminished.

Tuesday, June 5, 2018

A Constitutional Amendment Is Needed to Clarify and Limit Presidential Pardon Power

One semester while teaching political science classes, I assigned a unique exercise.  After reviewing the text of the Constitution and its amendments, including how various provisions in that document have been interpreted, I asked my students to write about a particular constitutional provision the Framers got wrong and how that provision should be changed.

I was unprepared for the response.  Most of my students wrote that the Constitution was perfect as was written.  Not a single syllable needed to be changed.  From my students' responses, you would think the assignment was to identify changes to the Bible.   While I had succeeded in teaching my students about what the Constitution said and what the courts have ruled the document's various provisions meant, I had failed to teach my students how to think creatively, to ponder, even question, the application of the
Constitution in practice.

Far from perfect, even the Framers realized very quickly they had a glitch in the original embodiment of the Electoral College, a problem that became apparent with our first constitutional crisis, an electoral college vote tie in 1800 between, then, Vice-President John Adams and Thomas Jefferson.  The 12th Amendment fixed that flaw, abandoning the idea of the single electoral vote (with the Vice-President being the runner-up) for the idea that electors would cast two votes, one for President and one Vice-President.  As a side note, no my conservative friends the Electoral College is not now operating as intended even as set out in the 12th Amendment.  The Electoral College has always intended to be a bulwark against the democratic impulses of the masses by leaving the decision of the President up to a wise group of citizen representatives elected by the less wise voters.  The Electoral College was never intended to rubber-stamp the decision of the voters, even at the state level.

I can easily think of things in the Constitution and its amendments that could, indeed should, be changed.  I think all 435 members of the House having to run every 2 years is a bit much.  The line between Congress' power to declare war and the President's powers as Commander-in-Chief could use clarification.    I was never sold on the two term limit for President established by the 22nd Amendment.  It makes the President a lame deck that second term, rending him (or her) ineffective.   I also think the 2nd Amendment was poorly crafted and could have better written (to more clearly protect private ownership of guns).  Then you have things in the Constitution that are written well, such as the 10th Amendment, which have been rendered practically useless by judicial interpretation.

One provision though that has not gotten much attention is the President's constitutional power to pardon.  Article II states:
The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
That is it  The language does not appear to provide any limit (with the exception of impeachment and that it be a federal crime) to the President's power of impeachment.  That lack of context, lack of limiting language, led to the President and his "attorney" Rudy Giuliani to recently claim that the President has the absolute right to pardon anyone.  This interpretation allows for the legal use of the pardon power to obstruct the Mueller probe by pardoning those caught up in the investigation (including President pardoning himself).

Did the Framers actually intend the pardon power to be as sweeping and open-ended as suggested by the lack of limiting language in Article II?  Highly doubtful.  The Framers were, in fact, very fearful of centralized, unchecked power, including a strong chief executive exercising king-like powers. It makes no sense that the Framers intended to sharply curtail the power of the President in several areas (which limits have been eroded over the years thanks to a complicit Congress and the federal courts' expansive interpretation of the Commerce Clause) on one hand, but give the President absolute, unchecked power in another area.

The Framers intent can be garnered from looking at the history that guided the adoption of the pardon language.  In the late 18th Century, when our current Constitution containing the pardon language was drafted then ratified, criminal prosecutions were handled almost entirely by states.  There were very few federal crimes at the time of the Constitution.  Crimes like treason and bribery were handled by the feds from the early days of the Republic, but almost all other federal crimes required the involvement of  the federal government or its officials somehow.  Indeed, the very limited nature of the then federal criminal code is highlighted in Federal Paper #74 in which Alexander Hamilton reassures readers that the President's unilateral pardon power in the Constitution is not too broad (and there was no need for legislative approval) by discussing its application involving just one federal crime, treason.

During the last 150 years, our Congress has passed numerous federal criminal statutes, using as a bridge to that authority the Commerce Clause.  Many if not most state criminal laws now have a federal equivalent.  Today, our federal government employs an army of prosecutors and judges to enforce the ever increasing number of criminal statutes passed by Congress.

While the number of federal crimes and prosecutions has expanded exponentially, the language setting forth the President's pardon power remains the same.  While I would like to see the federal role in criminal law enforcement cut back substantially, that back door way of of placing proper limits on the President's pardon power seems to be a pipe dream.  To mix metaphors, that ship has sailed.

My proposal is more direct.  A simple constitutional amendment that requires that the United States Senate approve all pardons.  The Senate has to approve treaties, cabinet appointments, judges, why not pardons?

Senatorial approval of pardons is not that much of a hurdle for a President, but it would likely stop the problem of a President misusing his authority to pardon friends, political supporters, or even the more obscene use of the pardon power to obstruct a criminal investigation into wrongdoing involving the President's campaign or his administration.