Friday, June 25, 2021

Justice Department's Legal Challenge to Georgia's Election Law Misses the Mark

On Friday, Attorney General Merrick Garland announced the Justice Department is suing Georgia over its new election law.  The Department claims the law was adopted with the purpose of denying or abridging the right to vote on account of race.  In its press release announcing the filing of United States v. Georgia, the Justice Department focuses on some of the provisions of the Georgia law:

  • A provision banning government entities from distributing unsolicited absentee ballot applications. 
  • The imposition of costly and onerous fines on civic organizations, churches and advocacy groups that distribute follow-up absentee ballot applications. 
  • The shortening of the deadline to request absentee ballots to 11 days before Election Day. • 
  • The requirement that voters who do not have identification issued by the Georgia Department of Driver Services photocopy another form of identification in order to request an absentee ballot without allowing for use of the last four digits of a social security number for such applications.
  • Significant limitations on counties’ use of absentee ballot drop boxes.
  • The prohibition on efforts by churches and civic groups to provide food or water to persons waiting in long lines to vote.
  • The prohibition on counting out-of-precinct provisional ballots cast before 5 p.m. on Election Day

Democrats are obsessed about the mostly modest changes (some of which are quite good) Republican-controlled state legislators are making to voting procedures.  While these changes are motivated by Trump's Big Lie about a stolen election, at the end of the day they are unlikely to have any impact on turnout, including among minorities.  However, the impression these changes are intended as "voter suppression" is likely to energize Democratic turnout.

Attorney General Merrick Garland

Elections involve two distinct events:  the casting of ballots by voters and the counting of those ballots by election officials.  While Democrats are obsessed about the former, Republicans are changing the rules regarding the latter.  Republican state legislators are introducing and passing laws changing how those ballots are to be counted, including allowing (GOP) state officials to seize control of vote counting from (Democratic) local officials.  In some cases, Republican-dominated state legislatures are angling to give themselves a veto over state presidential popular vote results which don't go their way.

But it is not just changes in the law regarding the counting of those votes.  It is also changes in the personnel that will be counting the ballots.  Donald Trump lost in 2020 because there were a number of local and state Republican officials in states like Georgia, Arizona, Wisconsin, Michigan, Pennsylvania and Nevada who insisted on counting the votes honestly.  They refused to buckle to pressure and award the election in their states to Trump when the votes said otherwise. Those folks have been targeted by Trumpers as "traitors" and are being systematically replaced by people who are not committed to honest vote counting or American democracy.

In analyzing Trump's Big Lie, the assumption is always that Trump was convinced he would win at the ballot box, and when he lost, it could only have been because of fraud.  I don't buy that.  Not even Trump could have been blind to polls which all showed him losing.  At no point in the race did Trump lead in the contest against Democratic nominee Joe Biden.  

Trump was not relying on the American people to give him a second term.  He was relying on the GOP state and local vote counters.  Because honesty and morality are foreign concepts to Trump, he just assumed those Republican officials would be willing to put their finger on the scale in the swing states Trump desperately needed to defeat Biden.  Or if those vote counters would not, surely GOP-dominated state legislatures would intervene and hand him the election.  If that fell through, there was always Congress which has to count the electoral votes or Vice-President Pence who was charged with overseeing that count.  Trump was certain he was going to win the election not because American people voted for him, but because of the well-positioned Republican officials Trump assumed were corruptible.

While I have yet to see the Complaint filed by the Justice Department, I have doubts there is a good legal theory to overturn the Georgia law.  The claim of a discriminatory effect seems to be a reach.  But the worst thing about the lawsuit is that it contributes to the Democratic delusion of focusing on the casting of votes when the Democrats should be focused on the counting of those votes. 


OOP's short takes:

  • It is already being claimed software anti-virus founder John McAfee's death in jail was not a suicide.  Also, the Florida condominium collapse that apparently has killed scores of people was a planned demolition by the government!  You can learn so much from Twitter. 
  • Not sure if I predicted this yet, so I will do so now. You know how ransomware targets big companies and government to shake them down for millions of dollars, usually paid in cryptocurrency?  As those companies and government spend a small fortune to beef up their computer security, the cyber criminals are going to turn to soft targets - small businesses and individuals.  While they will get less money from those soft targets, they will make up for that with an increase in ransom targets. 

Wednesday, June 23, 2021

Former Police Officer Eric Adams Leads New York City Mayoral Vote Count

I had to struggle hard to find some preliminary results of yesterdays New York City mayoral Democratic primary.  I finally found those results buried in a FiveThirtyEight article on the election.  According to that website, as of 2 a.m. this morning, with 799,827 ballots counted the results were:

Eric Adams - 32%
Maya Wiley  - 22%
Kathryn Garcia - 20%
Andrew Yang - 12%+
Numerous Other Candidates - 6% or below

But there are still outstanding absentee ballots.  As long as those ballots are postmarked by yesterday (June 22nd) and received by June 29th, they will be counted.    This year more than 220,000 NYC voters asked for an absentee ballot and thus far only 82% have been returned.

In addition to a delay because of allowing ballots post-election to count, there is also a "curing" period in which voters can fix ballots that are deemed defective.  So there will be a delay because of that as well.

But that is not the sole reason for the delay.  The NYC mayor's race uses ranked choice voting in which voters list their top five candidates.  If no candidate receives 50%, the second choice of those voters who ranked the last place candidate first gets reassigned to the remaining candidates.  If no candidate still has a majority, they move on to the second-to-last candidate and reassign those voters' second choice. This continues until a candidate receives 50% plus support.   This process, which is a type of instant run-off system, is difficult to explain but really not that complicated.

Adams is a former police officer and current Brooklyn borough President.  A former Republican, Adams ran on a tough on crime platform.  Adams would have been my favorite had he not come out the day before the election as a major asshole.  During a campaign stop on Monday, Adams mocked Yang "What is Andrew Yang still doing in this race?"  You know? I mean, listen, we know Andrew Yang is a fraud, he's a liar. We could care less about Andrew Yang."  Yang at that time was a vanquished foe, a person whose campaign went off the rails weeks earlier.  Adams could have taken the high road and acted with grace, which would have been a better choice given that he might want to pick up some of Yang voters to list him as an alternative.  Further, since Adams probably lives in New Jersey, while pretending to live in Brooklyn, it might not be a good idea to call someone else a "fraud."

NYC officials are now saying it will take 3 weeks, until at least June 12th, to count all the votes due to the reassignment of votes required by ranked choice voting.  Okay, I get the delay due to the counting of post-Election Day absentee votes and the curing process.  I do decry it though.  As I warned before the 2020 election, delays in announcing the winner can have severe consequences such as, I don't know, a losing presidential candidate intentionally undermining the integrity of election results by prematurely claiming victory.

I do not understand, however, the delay in announcing the winner due to the reallocation of votes under the ranked voting system.  This seems like a job tailor-made for something we folks outside NYC call a "computer."  One would think NYC would be on the cutting edge of technology, but the opposite is quite often true.  For example, many NYC residents were late to get cable TV and high speed internet.

Ranked choice voting has really grown on me.  It appears to cause candidates to moderate their tone and acts to block nutjob candidates who could otherwise win a primary with just a plurality of support.  

OOP's short takes:

  • Today's 8-1 Supreme Court vote for the student cheerleader's free speech rights further illustrates the need to get before the SCT an attorney free speech case.  To keep this brief, most state attorney disciplinary bodies take the position that attorneys do not have the free speech right to criticize members of the judiciary under the theory that negative criticism, even if done in good faith and, in some cases even if factually accurate, could undermine the integrity of the judicial branch.  There are a lot of problems with this position, but the major one legally is that, in disciplining attorneys who speak out, these disciplinary bodies ignore the New York Times v. Sullivan actual malice standard.  I think a strong majority of Supreme Court justices would support attorney free speech. The challenge is getting such a case to the Court.
  • The Supreme Court also today ruled unanimously that police will sometimes require a warrant to pursue a minor offender who has retreated into his or her home.  Given the consensus support of the rights of criminal suspects that exist on the current Supreme Court I'd love to see the Court take up a civil forfeiture case.  Lord knows there are plenty of abuses out there which would make for a good precedent.
  • I am all for Juneteenth being a holiday.  The more summer holidays the better.  And having a holiday to recognize the end of slavery - the most divisive issue in our history - is a good idea.  As a side note, I would encourage people to watch the PBS documentary "Slavery By Another Name" - vestiges of slavery continued long after 1865.
  • I'm not opposed to adding another warm weather holiday to the calendar.  But let's take a balanced approach and get rid of a few.  Columbus Day?  Christopher Columbus wasn't the first person to make it to America. He wasn't even the first European.  We celebrate a man who got lost and thought he had landed in India.  Stupid holiday.
  • Then we have President's Day.  If we were celebrating Washington or Lincoln's birthday that would be one thing. But we're celebrating everyone who ever achieved the office of the Presidency, including people who were completely unfit for the office and/or corrupt. This includes Presidents like James Buchanan, Andrew Johnson, Richard Nixon and Donald Trump.  (Trump, by the way, was the first President who was both unfit and corrupt.) 
  • Unfortunately, Washington and Lincoln's birthdays are both in January, the same month we celebrate Presidents' Day.   We already have Christmas, New Years, and MLK Day. That's enough holidays in the dead of winter.  More summer holidays. That's the ticket. 

Tuesday, June 22, 2021

Republicans in Indiana General Assembly Face Challenges in Drawing New Maps

This Fall, members of the Indiana General Assembly will return to the Statehouse to complete the process of redrawing state legislative and congressional districts for use in the 2022 midterm elections.  Indiana is among the majority of states that assigns this responsibility to the state legislature.  It is typically the most partisan vote legislators will take.  As a legislator you vote for your team when it comes to the new maps, even if it means your own district is made worse or even eliminated. Of course, legislators in the majority try to make sure that doesn't happen. They all want a safe district, i.e. they do not want to have to worry about winning a competitive general election.

Republicans dominate the Indiana legislature and will be the ones drawing the maps.  The House is 71- 29 Republican and the GOP controls the Senate 39-11.  This was not always the case.  Democrats won a majority of House seats in 1990 and 2000, which gave Democrats control over the drawing of House maps for two decades.  Despite the constant Republican lean of the state, Democrats won majorities in the Indiana House in 7 of 9 elections from 1992 through 2008.  Indiana Republicans though flipped 12 House seats in 2010 and have never looked back, winning  67 or more seats seats in every election since the GOP redrew the maps prior to the 2012 election.

Gerrymandering is nothing new.  Both parties engage in it and have done so from the early days of the Republic.  What has changed is that computers and other technology allows more precise predictions regarding future voter behavior.  

In gerrymandering, the goal of the majority party is to draw a large number of close but safe seats, while concentrating the minority party voters in fewer districts that they win by landslides.  To associate some numbers with the strategy, the GOP wants districts they win by 60-40 margins, while the Democratic districts drawn by Republicans are conceded to the opposing party by margins approximating 80-20.

Sometimes to get to a majority in the chamber, the party in control of the redistricting process needs to cut its winning margins below the safe 60-40 baseline to, for example, a more tenuous 55-45.  That turns safe districts (20 point margin) into competitive seats (10 point margin).  Without that extra cushion, a bad election could result in the majority party losing a slew of seats. That happened in the 2010 election in which Indiana Republicans picked up those 12 seats and the majority, allowing it to draw districts moving forward. Because there are more Republican voters than Democrats in Indiana, GOP legislators do not have to cut the numbers as much as Democrats did to have a majority.

We have a more local example of the pitfalls of cutting the numbers too much. The current Indianapolis City-County Council maps were drawn by the Republicans which had a majority, and held the Mayor's office, 10 years ago.  But the Republican vote in Marion County/Indianapolis was in decline and the only way to draw a majority GOP map was to cut the baseline Republican districts to margins such as 52-48.  Not surprisingly, the Democrats won a majority in 2015 and then a supermajority in 2019, when the party won 20 of the 25 council district maps.  Even though Democrats might have 60% of the countywide vote, 80% of the council members are Democrats.  Again, that was achieved using a Republican-drawn map.

Going into the 2021 redistricting, Republican members of the General Assembly will once again be in control of drawing the maps.  But it is unlikely the GOP can improve its numbers.  In a state that might be 60% Republican at best, the GOP has 71% of the House seats and 78% of the Senate seats.  Given Indiana's GOP baseline vote has declined during the Trump era, more likely the new maps will reflect an improvement of the GOP district numbers even if that means conceding more districts to the Democrats.  As far as the congressional districts go, Republicans legislators will no doubt improve the GOP numbers in CD 5 for Rep. Victoria Spartz who won the district with just 50% of the vote (a Libertarian candidate got 4%) in 2020.

There is also a hidden danger for the GOP in redistricting.  Although, the GOP baseline has declined during the Trump era, especially in the suburbs, that decline was tempered by heavy rural and Republican turnout.  Trump is very popular in Hoosier rural communities and small towns.  In redrawing the districts, Republican leaders will need to redraw suburban GOP districts further out into rural areas to solidify their winning margins which were dramatically cut during the Trump era.  But can the GOP count on those rural voters continuing to turn out in large numbers even without Trump on the ballot?  And, as far as those rural voters who make it to the polls, can they count on those voters pulling the Republican lever?  The phenomenon of rural voters being heavily Republican is only of recent vintage.

Thursday, June 17, 2021

Supreme Court Justices Cross the Partisan Divide in Two Remarkable Decisions

Congress and the public might be sharply divided by bitter partisan politics, but justices on the United States Supreme Court appear to have not gotten the memo.  Two decisions handed down by the Court this morning reflect that the Republican and Democratic-appointed justices are more than willing to cross partisan lines depending on the facts of the case.

By a 7-2 vote, the Supreme Court dismissed a Republican-led attempt to have the Affordable Care Act, i.e. "Obamacare," declared unconstitutional.  Conservative justices Clarence Thomas, Brett Kavanaugh, Amy Comey Barrett in Fulton v. Philadelphia joined Chief Justice Roberts and the Court's three liberals to render the decision.  The Court used a technicality - a lack of standing - to dismiss the case, but it is clear the Court is growing tired of these challenges to the ACA.  The ACA can still be repealed, it will just have to be by Congress, instead of the courts.

While Republicans are licking their wounds over another ACA loss, they do have something to celebrate - another religious liberty win in the courts.  The nice justices unanimously ruled that the city of Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex couples as potential foster parents because the Catholic Church believes marriage should be between a man and a woman.  Philadelphia was enforcing its anti-discrimination law but had not carved out an exception for religious institutions with doctrines that conflict with the law.

The decision seems to contradict Employment Division v. Smith, the controversial decision written by Justice Antonin Scalia in 1990 which says that as long as an anti-discrimination law applies generally to everyone it does not violate the First Amendment Free Exercise of Religion Clause.  However, the majority wasn't willing to to go that far, a decision which led Justice Gorsuch (joined by Justices Thomas and Alito) to pen a concurring opinion arguing that Employment Division should be definitively overruled.

Nonetheless, it is astonishing that the Court's three liberal justices - Kagan, Breyer and Sotomayor - voted in favor of religious liberty when confronted with applying an anti-discrimination law.  And this is not the first time. 


OOP's short takes:

  • Politico headline says it all: "GOP hands Dems a new line of attack: They're for 'Trump over the cops"  Yep.  GOP members of Congress refuse to investigate the insurrection which resulted in over 120 police officers getting injured.  Twenty-one House Republicans voted against even honoring the police officers who engaged in hand-to-hand combat with the insurrectionists and possibly saved their lives. One GOP member, Andew Clyde (R-GA), declared it was just a "normal tourist visit" and then refused to shake the hand of an officer who was seriously injured defending members of Congress during the "visit."  Now, the FBI is being accused of instigating the insurrection to frame Trump. 
  • Can we please stop pretending that Trumpers support law enforcement?  Their actions say otherwise.  Plus, you look at the history of the white nationalist groups, which were major players in the Insurrection, most are very anti-law enforcement.  
  • Oh, and I'm sorry, the insurrectionists are not off the hook because Capitol Police Officer Brian Sicknick died of "natural causes" shortly after being assaulted during the riot.   If while robbing a bank, a teller drops dead of a heart attack out of fear, the robber can be charged with murder.  The insurrectionists were committing violent criminal acts and they are responsible for everything that results from those acts, including the death of Officer Sicknick.  All that is required is that the criminal act be a contributing factor to the death by natural cause.  It does not even have to be the major factor.
  • In Florida, Republican congressional candidate William Braddock was recorded threatening to have his primary opponent Anna Paulina Luna killed.  "I really don't want to have to end anybody's life for the good of the people of the United States of America....but if it needs to be done, it needs to be done."  Notice how Braddock linked his threat of violence to a patriotic purpose (i.e. he would be doing it "for the good of the people of the United States.)?"
  • Make no mistake about it, political violence is coming.  

Wednesday, June 16, 2021

Fox News Host Tucker Carlson Peddles Conspiracy Theory That FBI Was Behind Insurrection

Just when it appears that Fox News host Tucker Carlson can't reach a new low, he proves everyone wrong.  Last evening on his show which is called, I believe, "Tucker's White Power Hour," he promoted the theory that the FBI was actually behind the January 6th insurrection.

Carlson's proof?   Well, awhile back FBI director Christopher Wray, understandably, did not want to answer questions from members of Congress about possible cover operations the law enforcement agency is using to investigate and infiltrate those far-right groups.  Carson references this reluctance as well as that many of the indictments against the January 6th insurrectionists mention "unindicted co-conspirators."  In laying out the evidence, Carlson interviews a "journalist" from Revolver News and then introduces a video clip from Russian President Vladimir Putin.  After all, who better to prove your theory than the statement of a murderous dictator who is a former KGB agent?  Carlson concludes the piece reiterating that it was actually the FBI that was behind the insurrection. Yes, not only were FBI agents embedded in these alleged domestic terror groups, Carlson apparently thinks they also obtained leadership positions which they then used to organize and lead the January 6th insurrection.  All to make Donald Trump look bad!

You just have to connect the dots, Tucker Carlson style.  MAGA!

If you're playing at home, in your program where it says "ANTIFA" or "BLM" was responsible for the January 6th insurrection, cross that out and write "FBI."

Trumpers love police officers, well unless those officers are from FBI, the Capitol Police, the DC police, or any other law enforcement agency that arrests violent right-wing extremists.  Trumpers definitely love police officers when they are cracking the heads of those ANTIFA goons.  MAGA!

(As a side note, 21 House Republicans voted against honoring Capitol Police officers who engaged in hand-to-hand combat to stop the, often, armed insurrectionists who had breached the Capitol and were endangering the lives of members of Congress, including those 21 House Republicans.  Fortunately no Hoosier GOP members of Congress, not even Jim Banks, were crazy enough to vote against the resolution.)

It didn't take long for MAGA world to take up and begin amplifying Carlson's new conspiracy theory that the FBI was responsible for the January 6th insurrection.

Hillary Clinton was right. These people are deplorable. 

Tuesday, June 15, 2021

Indianapolis Builds the Justice Center as Technological Advances Renders it Unnecessary

Come late this year, or early next, Indianapolis' courts are going to relocate from the City-County Building downtown to the Indianapolis Justice Center, a complex that is currently being constructed in the Twin Aire neighborhood southeast of downtown.  This move will radically change the Indianapolis legal landscape.  Many law firms and businesses providing legal support (think bail bond companies, court reporters, etc.) occupy downtown office space close to the CCB.  Once the courts move, a downtown attorney won't be able to walk across the street to attend a hearing.  That attorney will have to go to a downtown garage and retrieve his or her car for the 15 minute drive to the Justice Center.

Last week, I drove a couple legal colleagues of mine over to check out the Indianapolis Justice Center.  As we approached, I was shocked by the size of 
the building.  Even though the structure is "only" half as tall as the CCB, it seems to make that up in girth.  It appears to have a huge footprint.  My colleagues and I though could only view the building at a distance - construction fencing kept us from getting a closer look.  

The CCB opened in 1962 after two years of construction.  One of the complaints about the building, with a façade made up of mostly of glass windows, is its outdated look.  So I was surprised to find that HOK Architecture, the Justice Center architectural firm, emulated the CCB's glass façade.  Granted the Justice Center is a better looking glass building than the CCB, but it is still one encased in glass nonetheless.  

The Twin Aire neighborhood surrounding the Justice Center is almost entirely residential, consisting of mostly run down one or two story homes.  The only commercial buildings I saw that were close by were a Kroger and a McDonald's just west of the new building.   For law firms and legal support businesses to relocate to the area will require a lot of acquisition of single family homes and almost certainly rezoning to allow those commercial interests to operate in that residential area.

What is also striking about the new Justice Center location is the almost complete lack of thought city leaders have given to infrastructure needs associated with the development  Getting people to/from the building will be an enormous problem.  The narrow streets are already clogged and don't seem able to handle the substantially more traffic that will come with Justice Center operations.  There is no nearby bus stop, though that will no doubt be added later.  Even then there is little doubt that most people traveling to/from the Justice Center will be doing so by private vehicle.  That will be a big problem for that neighborhood.

As long as I've been a lawyer (since 1987), the legal profession has been slow to change.  In the early 1990s, as clerk at the Indiana Court of Appeals, I actually dictated drafts of lengthy legal opinions on a recorder for a secretary to type later. Fifteen years later, most lawyers were still using law books for research rather than computer databases.  Until very recently, we lawyers had to file documents manually and then mail opposing counsel a hard copy of the filing.  Simply emailing the document was not considered proper service under the rules.

One of the blessings of the recent pandemic is that it forced lawyers to embrace technology that they might not have adopted for another two decades.  In the last year, judges and lawyers have learned that many, if not most, legal proceedings can be handled remotely, through video conferencing.  While there will still be a need for in person hearings, those occasions are much fewer now than before the pandemic.  As a result, the space needed for court proceedings has declined substantially.

Which brings me back to the very expensive ($580 million), and expansive, Justice Center.  When the courts move out, half the CCB will be empty.  The plan was to fill those spaces with local government agencies currently located outside the building and to rent out the rest of the space to private companies needing downtown commercial space.  The problem is those openings in the CCB are coming at the same time the commercial real estate market is experiencing a major, post-pandemic downturn.  Companies have learned they don't need to have entire office floors filled with workers working in cubicles and small offices.  They can have them instead work at home and save a small fortune on warehousing those employees for five days a week.

A primary selling point of locating the Justice Center in the Twin Aire neighborhood is that the legal profession's purported need for legal space could spur economic development.  

Indianapolis' politicians, regardless of whether they are Democrats or Republicans, have historically been united in supporting corporate welfare schemes that put money in the pockets of a network of politically-connected developers, contractors, architects, and law firms.  These projects are always sold as "economic development."  While they do boost the economy in the targeted neighborhoods, it is debatable whether the higher taxes required to support the publicly-funded projects are worth it.  The consequences of taxpayers subsidizing private development is that Marion County (Indianapolis) has, by far, the highest local taxes in Indiana.  

A bigger problem though is that city leaders, in planning these projects, always assume the future will resemble the past. About 10 years ago, the City entered into a lease of parking meters in which the City guaranteed the income from people continuing to park at these meters for the next 50 years.  City leaders are perpetually expanding the convention center to attract more convention business even though the industry has been in decline for years.  Recently we decided to invest millions to buy heavy, huge buses to transport people around the city at the very time the need for public transportation is declining.  

As the Justice Center nears completion, technology appears to be undercutting the need for its very existence.  Instead of vastly increasing space for legal operations, thoughtful downsizing and reorganizing of that space would have been a better bet.  

Read also: 

OOP's Short Takes:

  • As President Joe Biden's foreign trip continues, I must confess how relieved I am to have a President who stands up for the interests of the United States and is not a constant source of embarrassment on the world stage.   Trump was completely unfit to be President, but no place was that unfitness magnified more than when he was on the world stage.  I think most of my fellow Republicans agree with that, though few will admit it.
  • Congress needs to leave no stone unturned when it comes to investigating Trump's corruption of the Justice Department including his use of it to go after his political enemies. (My guess is you are going to see Trump Attorneys General Jeff Sessions and Bill Barr duck congressional subpoenas.)  Meanwhile, I am developing real concerns about Attorney General Merrick Garland's leadership of the Justice Department. Priority No. 1 needs to be getting to the bottom of the Trump corruption.  I understand President Biden's desire to move forward, but if there are no consequences for a President abusing his power, it will happen again.  Guaranteed.

Thursday, June 10, 2021

It's Time to Rethink the Confidentiality of Federal Tax Returns and the Code's Definition of Income

On Tuesday, ProPublica broke the story that several of the richest people in the world, including the two current richest, Jeff Bezos and Elon Musk paid little or no income taxes for several years.  Also mentioned on the list of tax avoiders are multi-billionaires Michael Bloomberg, Carl Icahn, George Soros and Warren Buffet.  

ProPublica was able to write the story thanks to an anonymous leak of a vast trove of Internal Revenue

data and actual tax returns of some of the wealthiest Americans.  The person or persons who proved ProPublica with the information is facing a felony and a lengthy stay in prison.  After all, there is little that is more confidential than Americans' tax returns, including how much each of us pay.

But should our tax returns, or at least the amount we pay in income taxes, be such a closely guarded secret?  Other taxes we pay are a public record.   If you want to know how much someone is paying in property tax, that's an easy thing to find.  We can also find out what taxes businesses are paying.  But when it comes to Americans' personal incomes, we treat even the total taxes paid as a state secret. 

That didn't used to be the case. When the income tax was first adopted, how much people owed in those taxes was a public record.  Newspapers would publish the names of individuals and how much of their income they were to fork over in taxes.  Rich people hated this practice and they got their politician friends to make the information confidential with severe penalties associated with any unapproved disclosure.

A commentator on the cable shows says the leak didn't offer anything newsworthy. He declared the fact that the uber rich were paying little or no income taxes for many years was well-known.  I don't buy that.  While we all knew tax avoidance was going on, the ProPublica story publicizes how extensive and successful those efforts have been.  Cloaking income tax records in such secrecy has slowed efforts at reforming the system.  ProPublica not only provides information about the extent of tax avoidance, it provides a point of emphasis as to how the super rich aren't paying taxes while working stiffs are.

Not only should we re-consider the confidentiality of tax returns. we need to reconsider the definition of "income" used to calculate the tax. The super wealthy identified in the ProPublica story didn't do anything illegal.  They just took advantage of the fact that you only pay taxes on what is defined as "income." Under that definition you only pay tax on gains that are realized.  Until stocks are sold, there is no gain realized and no income tax.  Likewise, until real estate is sold, there is no income tax.

The definition of income allows the uber rich to substantially increase their wealth without paying a literal dime in income taxes.  Maybe it is time we rethink the definition of income.

Wednesday, June 9, 2021

Conservative Intellectualism and the Decline of Trumpism

As of Tuesday at the stroke of midnight, Indianapolis dropped the requirement that people wear masks in public places.  Or I should say people who are fully vaccinated (which includes yours truly) no longer have to wear masks.  No word on how they intend to determine who has been vaccinated.

The kerfuffle that many on the right raised over wearing masks epitomized the denigration of conservative intellectualism.  Pardon me for continuing to go back to my college days, but beginning in 1980, I attended numerous meetings and workshops where new conservative approaches to governing, such as enterprise zones, reinvigorated federalism, balanced budgets, school vouchers and the negative income tax, were debated.  Forty years later, the conservative intellectualism has been reduced to screaming at store clerks about a "right" not to wear a mask in the middle of a pandemic.  Idiocy.

One thing not well covered is how conservative intellectuals have fled the GOP in the wake of Trump's takeover of the Republican Party.  Some have formally cut ties, while others have stepped back from active party politics to criticize Trump and his supporters who appear no longer interested in the conservative principles which for years were bedrock Republican principles.  The conservative intellectuals who back Trumpism are few and far between, but they are inevitably people who have decided that making money is more important than principles.

Conservative intellectuals have fled to media platforms such as The Bulwark.  I am, in particular, a big fan of The Bulwark podcast hosted by former Wisconsin radio personality Charlie Sykes.  Not too many people could pull off a daily podcast, but Sykes does it in stride while at the same time penning a lengthy daily newsletter.  Apparently he has more hours in his day than I do.  Nonetheless, I'd highly recommend that podcast as well as becoming a Bulwark +member which offers all sorts of additional podcasts, newsletters, etc.

While Sykes is normally spot on with his analyses, one thing I totally disagree with him on is his assessment of the GOP's future.  Sykes looks into the future and sees a Republican Party perpetually dominated by Trumpism.  While I agree with that appraisal short-term, I think Sykes is just not looking far enough down the road.  Trumpism's dominance over the GOP is doomed to failure.

First, unlike Reaganism, Trumpism is not a philosophy about how government should operate.  Indeed, it is not a philosophy at all.  It is a belief that the Democrats are evil and that opposing them at every turn constitutes the entirety of what it means to be a Republican.  With Trumpism seizing control of the GOP, the two parties should be called the Democratic Party and the anti-Democratic Party (shades of the early days of the Republic when the first two American political parties were known as the Federalists and Anti-Federalists).  The Republican Party stopped standing for anything except being for Donald Trump (see 2020 GOP platform) and against the Democrats.  Parties without a governing philosophy die (see the death of the Federalist Party).

Second, to continue its hold over the Republican Party, Trumpism eventually needs to start winning elections.  But by every measure, Trumpism is becoming less popular with voters.  In 2016, Trump won the suburban voters and those who were college educated.  In 2020, he lost both of those groups and lost women by even more than he did in 2016.  While Trump did better with Latino voters and slightly better with African-Americans, that improvement was marginal and did not begin to offset his declining support among other groups.  In 2020, Trump ran behind virtually every GOP candidate in the country.  Republican candidates who embrace Trump to win a primaries will find the former President to be an albatross around their necks going into any competitive general election.

(As a side note, I do predict the GOP wins control of the U.S. House in the 2022 elections. With gerrymandering and historical mid-term election trends, that is inevitable.  And Trump will no doubt claim victory.  But that will be fool's gold.  Trump and his brand of toxic politics are in perpetual decline.)

Third, I return to the lack of intellectual support for the Trump movement.   No political movement has ever succeeded without an intellectual component (i.e. brainiacs working behind the scenes to develop the policy details necessary to implement the politicians' rhetoric).  Because Trumpism stands for little in the way of actual policy objectives ("America First" is a slogan, not policy), the much-needed intellectual support for Trump's brand of politics never developed.

Fourth, Trump has turned the GOP into a personality cult.  Or a nicer way to look at that is Trump has converted the GOP into a candidate-centered party, instead of one that stands for a particular philosophy and a set of coherent views  The consistent history of candidate-centered parties is that they cease to exist once the dynamic leader of the party leaves. Witness Teddy Roosevelt and the Progressive (Bull Moose) Party and George Wallace and the American Independent Party.

Sykes sees no end to Trump's grip on the GOP.  But if he would look a few more elections into the future, he'd see the demise of Trumpism, the inevitable result of the GOP continuing to lose elections.  The question is not whether Trumpism will fail, but when. And more importantly, what will replace it.  

OOP's Short Takes:
  • On Sunday's Meet the Press, host Chuck Todd said that the belief among Republicans that the election was stolen is increasing.  My impression was just the opposite - that the GOP belief in the Big Lie was in fact decreasing.  My brief review of polls seems to suggest that.  A CNN poll in mid-January had 75% of Republicans believing the election was stolen.  In late March, Monmouth had it at 65%.  In mid May a Reuters/Ipsos poll had the number at 53%.  While it's always problematic to compare polls from different pollsters to ascertain trends, I am certainly not seeing an increase in support among Republicans for the stolen election nonsense.
  • It will be interesting how ranked choice voting works out in the New York City Democratic Primary which is set for June 22nd.  It may be a way of combatting the crazy that is taking over our politics. 
  • Tom Nichols, an academic and conservative commentator who appears frequently on cable TV shows and podcasts, recently opined that he is much more worried about the future of American democracy today than he was a year ago.  I couldn't agree more.  Over the course of the past year (including mostly during the last six months), a sizable portion of the conservative electorate has turned their back on American democracy and expressed a disinterest in accepting the results of an election that does not go their way.  Further, many of them have expressed support for violence to obtain political objectives.   When you have right-leaning audiences cheering a speaker who suggests a violent coup in order to oust President Biden and re-install Donald Trump, well that's a BIG problem.  The media reports focused on that speaker - former National Security Advisor Michael Flynn.  No, the real alarm bell going off was the audience reaction.

Friday, June 4, 2021

On Tiananmen Square Anniversary Let's Not Forget Former President Trump Supported the Massacre

Today marks the 32nd anniversary of the Tiananmen Square massacre.  Let's revisit what happened that day:

The Tiananmen Square protests were student-led demonstrations calling for democracy, free speech and a free press in China. They were halted in a bloody crackdown, known as the Tiananmen Square Massacre, by the Chinese government on June 4 and 5, 1989.

Pro-democracy protesters, mostly students, initially marched through Beijing to Tiananmen Square following the death of Hu Yaobang. Hu, a former  Communist Party leader had worked to introduce democratic reform in China. In mourning Hu, the students called for a more open, democratic government. Eventually thousands of people joined the students in Tiananmen Square, with the protest’s numbers increasing to the tens of thousands by mid-May.

At issue was a frustration with the limits on political freedom in the country—given its one-party form of government, with the Communist Party holding sway—and on-going economic troubles. Although China’s government had instituted a number of reforms in the 1980s that established a limited form of capitalism in the country, the poor and working-class Chinese still faced significant challenges, including lack of jobs and increased poverty.


On May 13, a number of the student protesters initiated a hunger strike, which inspired other similar strikes and protests across China. 


[T]he Chinese government declared martial law on May 20 and 250,000 troops entered Beijing.

By the end of May more than one million protesters had gathered in Tiananmen Square. They held daily marches and vigils, and images of the events were transmitted by media organizations to audiences in the United States and Europe.

While the initial presence of the military failed to quell the protests, the Chinese authorities decided to increase their aggression. At 1 a.m. on June 4, Chinese soldiers and police stormed Tiananmen Square, firing live rounds into the crowd.

Although thousands of protesters simply tried to escape, others fought back, stoning the attacking troops and setting fire to military vehicles. Reporters and Western diplomats there that day estimated that hundreds to thousands of protesters were killed in the Tiananmen Square Massacre, and as many as 10,000 were arrested.

At the time, the United States had strongly supported those in China who were risking their lives for freedom and democracy   The protesters in China, after all, were not alone.  Freedom movements were  sweeping across Europe, most particularly in the the Soviet Union and the countries it had dominated since World War II.  Protesters looked at the example of America with its freedom and democracy as something they wanted in their own countries.  

The most moving symbol of these freedom movements was the fall of the Berlin Wall which took place in November 1989, just a few months after the Tiananmen Square massacre.

Fresh out of law school and newly active in local Republican politics, these events defined for me what it meant to be an American.  I greatly admired those who risked their lives for the freedoms we enjoy as part of our birthright, and too often take for granted.  At the time, I was aware of no American arguing the other side -  that these dictator-led governments were right to kill democracy protesters, to continue oppressing their subjects, to continue denying their freedom.   To side with Chinese government officials who slaughtered their own citizens at Tiananmen Square who had dared to demand United States-style freedom, was unheard of.

I was wrong.  There was an American defending the Chinese Communist government's violent suppression of the freedom movement - a failed New York City businessman, Donald J. Trump.

All you need to know about the former President and his disdain for American democracy, the freedoms we Americans enjoy and our Constitution which guarantees those freedoms, is that Trump supported the Tiananmen Square massacre.  To him, the freedom loving protesters were "rioters" and the government was right to take a "strong" approach to shut them up, including killing them.  During a 1990 interview with Playboy Magazine, Trump said:

"When the students poured into Tiananmen Square, the Chinese government almost blew it. Then they were vicious, they were horrible, but they put it down with strength. That shows you the power of strength."

Those "patriots" who think Trump supports freedom and American democracy are fooling themselves.  

OOP's short takes:

  • Over at one of the conservative websites, I read an article which bashed President Biden for the poor economy.  Huh?  During the first quarter of 2021, the economy grew at rate of 6.4% and today it was reported that the unemployment rate fell again, this time to 5.8%, the lowest since the early days of the pandemic.  Inflation concerns are very legitimate, but it's just a lie that the economy is doing poorly.  Once again, it is the conservative media creating an alternative universe for those who consume the media.
  • It was recently announced that Trump was closing down his blog, no doubt due to a lack of traffic, a fact which was regularly mocked by the media.  What I never understood about the Trump blog was its incredibly poor design.  Did Trump not have anyone around him who could have helped create a more interesting layout, one that would encourage more people to go to the website?
  • Breaking news:  Trump is suspended on Facebook until January 2023.  If Trump can't get reinstated on Facebook, how does he expect to be reinstated as President?  Okay, I stole that joke.

Tuesday, June 1, 2021

As Republicans Embrace the Crazy, Political Violence Can't Be Far Behind

Recent poll results show my Republican Party is a long way from returning to sanity.  

According to a PRRI-IFYC poll released last week:

28% of Republicans agree with the statement that "because things have gotten so far off track" in the United States "true American patriots may have to resort to violence" to save the country.

General Michael Flynn

28% of Republicans believe there is a "storm coming soon" which will "sweep the elites from power and restore the rightful leaders."

23% of Republicans believe that "the government, media and financial worlds in the U.S. are controlled by a group of Satan-worshipping pedophiles who run a global child sex trafficking operation." As a side note, in a Yahoo News/You Gov poll released last October, 50% of President Trump's supporters believe top Democrats are involved in child sex trafficking rings. Even a larger percent think Trump was working to dismantle those rings.

The result I find most shocking though is that according to a just released Yahoo/You Gov poll, 73% of Republicans blame at least some of the responsibility for the January 6th insurrection attempt on "left-wing protestors trying to make Trump look bad." The conservative media have, mostly, shied away from that claim.  So too have most Republican elected officials. While they might downplay the significance of the insurrection, most refuse to promote the false flag narrative.  Instead, GOP opinion embracing the conspiracy theory seems almost entirely driven by the grass roots on social media.

On a related topic, former Trump National Security Advisor Michael Flynn on Sunday attended a convention of Qanon and Big Lie supporters. When asked by an audience member who identified himself as a Marine why a Myanmar-type insurrection couldn't happen here (to reinstall Trump as President), General Flynn said "it should happen here."   Since Flynn's comments might be viewed as urging a violent overthrow of the government - which would be a crime - he later backed away from his statement.  Conspiracy theorist and attorney Sydney Powell, who also attended the convention, was more circumspect with her comments contending Trump should be "simply reinstated" and a "new inauguration day...set."

The ground work is being laid for more political violence. The January 6th insurrection might prove to be the tip of the iceberg.


OOP's short takes:

  • It is difficult to ascertain the GOP strategy in opposing a bipartisan commission to investigate the January 6th insurrection.  A second vote will be held in the Senate to approve the Commission, which as things now stand, is likely to fall 2 or 3 votes short of the 60 needed.  
  • If the Commission fails again it is not like an investigation is not going to happen.  It will instead be done by a select committee with appointments made by Speaker Nancy Pelosi and Chuck Schumer.  Instead of 50-50 Republicans and Democrats, a select committee will have a majority of Democrats with Democratic leadership.  Democrats on the select committee will have complete subpoena power as opposed to having those subpoenas approved by Republicans which would have been the case with a select committee.
  • Texas Democratic legislators walked out rather than allow a vote on a bill they argued would make it more difficult to cast a ballot.  While the Texas bill goes further than the Georgia bill, it still would only affect voting at the margins while handing the Democrats a potent issue (Republicans don't want you to vote!) to use in 2022.  
  • As I have long said, Democrats, instead of focusing almost exclusively on the casting of votes, need to be a lot more concerned about the counting of those votes.  Biden won in 2020 due, in no small part, to elected and appointed Republicans at the local, state and federal level, who insisted on a fair counting of the votes.  Those GOP officials are being replaced by Republicans not committed to American democracy and fair elections. Further, the rules are being rewritten to give those GOP officials more authority to override the will of the voters. That is what Democrats should be worried about.