Saturday, May 30, 2020

City Needs to Be Smart About Blue Indy Parking Spaces

The City of Indianapolis is asking for input on what to do with the 400 or so Blue Indy spaces as the electric car service closes shop here.  

For those who have offices or businesses around the City-County Building (CCB), the Blue Indy fleet
has long been the source of much derision.  People laughed that the cars were never used except by Blue Indy employees occasionally moving them around.  Even my most ardent tree-hugging friends thought the program was idiotic.  For people wanting to make a quick trip to visit a government office or downtown merchant, the scores of spots taken up by Blue Indy around the CCB meant they have to park in an expensive parking garage or park several blocks away at a meter and walk.  Needless to say, this experience was much worse during the winter.  It did not help my mood that during those long cold walks I passed by numerous Blue Indy cars taking up much closer metered
parking spaces.

Indianapolis Star writer James Briggs, who by the way has free downtown parking available to him next to his place of employment, claims Indianapolis does not have a parking problem.  Indeed, there is generally not a problem finding an open parking garage during the day or street parking at night.  But finding a street parking space during the middle of the day in many parts of downtown can be next to impossible.  The option to pull into a garage means, instead of paying maybe $1 to park at a meter, you could be paying the garage $8.  People do not want to do that when their errand will only take a half hour or so.

There is another thing that is constantly overlooked.  Under the city's fifty year contract with ACS dba Park Indy, Indianapolis can only take so remove so many metered parking spaces.  Once that cap is reached, the city has to pay Park Indy for any additional spaces as if they were occupied 100% of the time. With the Blue Indy program and other projects, we may well be beyond the cap.

The Blue Indy program and the 50 year parking meter contract were just two of the many bonehead ideas launched by former Indianapolis Mayor Greg Ballard.  As a lifelong Republican who enthusiastically supported him when he first ran, Ballard proved to be an embarassment.  Republican Ballard never hesitated to use taxpayer money to subsidize private developers (which also happen to be his political contributors) in his many corporate welfare schemes.  (Remember when Ballard wanted to build a cricket complex so that Indy could host the world championship?)  When it came to tax increases, Ballard always supported them.  Always. I lost count at about 40 tax/fee increases he proposed.

Ballard's replacement, Joe Hogsett, is a far from perfect.  However, Hogsett seems at least willing to listen to the public's input and understands the need for flexibility in urban planning.  The Indianapolis Star reports on Mayor Hogsett's thoughts about what to do with the Blue Indy spots:
"We continue to be mindful that the best solution may look different on a station by station or on a neighborhood by neighborhood basis," Mayor Joe Hogsett said Wednesday. "One size does not necessarily fit all."
It's not that none of these BlueIndy parking spaces will revert back to the parking spaces that existed before BlueIndy — some might," Hogsett said. "But to simply suggest that the best policy and the best use of these spaces ought to be just go back to where we were before BlueIndy I think is not taking advantage of an enormously exciting opportunity."
The Star goes on to quote Hogsett policy advisor Maczenski Higgins who talked about learning lessons from Blue Indy's demise.  She cited, as lessons learned, the need for flexibility when designing these types of programs due to changing technology and trends, and the need to consider community input.   Exactly!  After eight years of the Ballard administration locking the city into long term commitments, such as the 50 year parking contract, and not being the slightest bit interested in community input, it is refreshing to listen to an administration talking about a more thoughtful approach to municipal planning.

It could well be the Hogsett administration's deeds will not match its rhetoric when all is said or done.  But at least its good to at least finally hear the words.

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.