Moving Toward Consent of the Governed

Rob Baker, Ph.D.

               I argued previously that several threats to our democracy’s survival were simultaneously bearing down on us, and to meet those challenges, we needed to get back to the first three words of our Constitution’s Preamble: “We the People.”  Consent of the governed, the fundamental principle imbued in those words, was what animated our country’s founding spirit.  Yet, a number of developments have steered us away from rule by the people toward what many agree is minority rule.  As I noted, though, there is hope in the recent report of the bipartisan Commission on the Practice of Democratic Citizenship (CPDC).  Below I discuss how their recommendations for making it easier to vote will promote rule by the many instead of rule by the few.

               Let’s begin with two silver linings. First, despite the pandemic, Americans set a modern-day record for turnout in the 2020 election with 66 percent of eligible voters casting ballots.  Some battleground states saw turnout approach 80 percent, and each presidential candidate received more popular votes than any other presidential candidate in history.  Americans clearly understood, and demonstrated, the ultimate power of their votes.  Second, in the face of unprecedented efforts by the President and his supporters to promote distrust in our electoral processes, culminating in the recent deadly attack on the Capitol, the Cybersecurity and Infrastructure Security Agency declared the 2020 election “the most secure in American history.”  Moreover, our democracy’s predominant guardrail–the judiciary—rebuffed dozens of court challenges alleging election fraud.  While this losing record of absurd claims did not surprise most legal scholars, the drawn-out charade unnecessarily stressed the entire nation.  The courts’ clear messages also strongly rebuffed decades of Republican efforts to erect barriers to voting as a supposed bulwark against their false assertions of widespread voter fraud.  

               How can we build on the positive momentum reflected by the above developments? I again refer you to the CPDC’s recommendations aimed at “empowering voters.”  Two of them have been especially effective at increasing turnout: 1) same-day registration combined with automatic voter registration, and 2) preregistration of 16 and 17-year olds linked to instructions on how to vote as part of basic civics classes.  

               Research consistently shows that removing barriers to voting enhances participation.   Several states have a long history with same-day registration, where it has increased turnout 5-7 percent.  Sixteen states have automatic voter registration, and it’s been introduced in 39 others (including Ohio) where it is typically implemented as part of the vehicle registration process with opt-out provisions, and where it has increased registration by as much as 90 percent.   Finally, in the 16 states that combine pre-registration of 16 or 17-year olds with detailed voting instructions, turnout increases by up to 8 percent.  Do you believe every eligible citizen should be able to vote?  If so, will you support these kinds of reforms in Ohio to help move us closer to consent of the governed?


How America Survives

Rob Baker, Ph.D.

               Our nation faces perhaps its most difficult inflection point.  The American ideal seems dreadfully bent, and seriously in danger of breaking.   Challenges that formerly came at us hard, but mostly serially,—a pandemic, massive unemployment, economic dislocation, civil protests and unrest, economic and wealth inequality, severe political division—are now bearing down on us simultaneously.   Previously, meeting and overcoming each of these was arduous enough, but all of them coming at once can feel overwhelming.  

               Compounding the crises are a number of impediments to successful solutions.  These include a Congress that has been dysfunctional for years, an unorthodox President who has flouted traditional governing conventions and weakened institutional guardrails, a diminished standing in the world, a corporate mentality that prioritizes profits over employee and community interests, and a media characterized by silos and echo chambers.    Are we watching the demise of our democratic experiment?  Scholars have sounded warnings to this effect, inclining us to throw up our hands in demoralized frustration.  Yet, I would like us to think about fundamental principles as an initial step away from the looming abyss–principles imbued in the first three words of our constitution’s Preamble:  “We the People.”   

               Belief in the consent of the governed motivated our country’s founding.  Over time, however, laws such as single-member district elections that allow for a minority of voters to choose our legislators, policies such as government-sanctioned redlining by banks that segregated cities by race and class, and judicial decisions such as Citizens United v. FEC that gave corporations outsized control over our elections, have steered us away from rule by the people and toward a system plausibly described as minority tyranny.  Even the constitution itself enshrined structures, e.g., the U.S. Senate and Electoral College, that can work against the consent of the governed by promoting rule by the few to the detriment of the many, even when supermajorities of voters favor certain policies.

               To unite and confront the multifaceted challenges we face, we must all have a stake in the game.  Right now, though, too many feel disenfranchised and unheard.   To uphold the fundamental principles embodied in “We the People” real transformations are needed.  Here is where hope emerges.  Recently, the bipartisan Commission on the Practice of Democratic Citizenship convened with the goal of recommending reforms aimed at pulling us together as a nation.  Significantly, they didn’t just hand down platitudes, but conducted listening forums in 22 locales across the country.  These sessions culminated in recommendations designed to promote equal representation, empower voters, enhance government responsiveness, strengthen communities, reconfigure social media as civic media, and encourage shared commitment. In the coming weeks, I will discuss the mechanics and implications of several of the proposals.  Meanwhile, I urge you to go to the Commission’s website (, read the report, and commit to doing your part as one of “we the people” to advocate for changes that will help get us back to our very first principle—consent of the governed.


Rights vs. Desires

It’s a free country; I can do what I want!”  When was the last time you heard, or possibly uttered, that claim? Your elementary school playground?  Junior high?  Unfortunately, as the Covid-19 pandemic continues to kill thousands of the afflicted, overwhelm large segments of the healthcare system, and wreak havoc on the economy, many Americans and opinion leaders have downplayed the severity of the threat. Behaviors illustrative of the radically individualistic attitude conveyed by the assertion above include citizens refusing to wear masks in violation of emergency orders, groups ignoring social distancingpolicies by holding large meetings, trafficking in conspiracy theories about the origins of the pandemic, and the gathering of unmasked protestors around the country demanding that their states’ economies open up immediately.

​I think most Americans understand that while our country was founded to protect liberty, no freedom is absolute. Unfortunately, though, what all of the above examples have in common is what Mary Ann Glendon, in her 1991 book Rights Talk, describes as 1) a tendency to confuse fundamental liberties with less significant personal desires, and 2) a failure to recognize how individual rights demand civic responsibilities if we are to protect everyone’s freedoms.  

Take, for example, the refusal to wear a mask when mandated by public health authorities, a decision typically defended along these lines: “It’s my right to risk getting sick by not wearing a mask.” Or, “Government shouldn’t force me to wear one against my will.”  First, the “right” to go mask-free in public is not constitutionally guaranteed; asserting such a trivial desire as a “right” diminishes the fundamental rights protected by the constitution.  It’s the same argument frequently made about refusing to wear a seatbelt, or a motorcycle helmet, or when chafing at laws prohibiting smoking in public. Second, these claims fail to acknowledge broad societal consequences of engaging in such behaviors, including causing everyone’s health care costs to go up from motor vehicle accidents, and diseases and deaths caused by second-hand smoke. To say, as some recent protestors have, “My liberty does not end at your fear!” fails to recognize that protecting everyone’s liberties and lives depends on all of us responsibly adhering to behaviors that promote the common good, even when it’s obviously costing us all tremendously in the short run.  Prioritizing constitutional rights over personal desires encourages us to find ways to support those whose lives and fundamental liberties have been so endangered as to be a threat to their survival.  

The pandemic has pulled back the curtain on our nation’s disparities in access to health care, education, and economic opportunity. Let’s not further exacerbate these gaps by refusing to cooperate with reasonable, though difficult, responses for the greater good. It has perhaps never been truer: united we succeed; divided 328 million ways, we fail. Will we use this unprecedented crisis to protect one another and build a better future for all?


Fighting a Pandemic under Federalism


What is the appropriate distribution of power between the levels of government—local, state, and national? Woodrow Wilson called it “the cardinal constitutional question.”   Our republic’s founders called for a constitutional convention to address it.  We fought a civil war over it.  It’s been a key explanation for the ongoing differences between liberals and conservatives and the major political parties. Now, we’re trying to fight a pandemic in spite of it.  America’s system of decentralized political power, known as federalism, created out of compromise at the founding, has continually blessed and cursed us with its crazy-quilt patchwork of responsibilities for the different levels of government.   It’s during times of crisis, though, that the strengths and weaknesses of our system are starkly illuminated.

​Originally, the national government was weak; power rested with the states, and we almost perished because of aninability to coordinate effective responses to the economic and security challenges confronting our new nation.  As a remedy,the founding fathers proposed a stronger national government and specifically limited state authority.  States’ rights advocatesobjected, which threatened the new constitution’s ratification.  To placate those interests, the framers added the 10th Amendment in 1791 as a vaguely worded recognition of state power.   To wit: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”   Powers arising from this provision are the “general welfare” and “police power” duties; state and local governments are expected to protect the health, safety, and welfare of their citizens.  State and local lawsaimed at this goal essentially trace their authority to the 10thAmendment, with an evolved system of over 90,000 local governments, many of them special governments like health districts, working to protect people’s welfare on a daily basis.

Countries with stronger national governments, including democratic ones, attacked the coronavirus pandemic from the outset with a top-down approach, and in several cases, e.g., South Korea, Singapore, Israel, and Taiwan, were able to slow the virus’ spread.  In contrast, our nation’s front-line of attack emerged piece-meal out of our massive, decentralized system.  This allowed for flexible and innovative social distancing and lockdown policies in many jurisdictions, but also legitimized inaction and denial of the threat in many other states and locales.   So here is where the paradox (or curse) of our system lies.  While we love our tradition of local control, not since the civil war has it so clearly contributed to the death and destruction of many American lives, with more tragedy to come.   Now that an aggressive, coordinated, national offensive is needed, some state and local leaders are still balking, precious time has been lost, and catching up will be even more costly in terms of lives, health, jobs, income, and security.  Should we “re-found” the answer to our “cardinal constitutional question” in order to form a “more perfect” union? Life, liberty, and the pursuit of happiness are literally at stake.


Time to Address Iowa’s Outsized Impact on Presidential Nominating Process

984A7556-1D38-4738-9E67-7B8728A67E79Another presidential election is upon us, and two dozen Democratic hopefuls are swarming the state of Iowa like ants at a picnic, making it difficult for Iowans to go anywhere without bumping into a candidate or campaign volunteer.  A similar scene unfolded four years ago, when several Republican candidates sought to schmooze their way into the hearts and minds of Hawkeye voters. Most Iowans are understandably proud of their state’s role in launching the presidential nominating process with their caucuses, but how well does theirtradition serve the rest of America in choosing nominees broadly representative of voter’s interests and concerns?

Leaders of both parties in Iowa have staunchly guarded their “first-in-the-nation” status, bristling at efforts to change things, even though the process has a poor record of picking presidents.  Since 1972, 7 of 9 Democrat caucus winners, and 2 of 6 Republican winners have gone on to become their parties’ nominees, but only 1 Republican and 2 Democrat caucus victors have become president.  In spite of this poor record, coming out on top in Iowa creates momentum that translates into enhanced media and voter attention, and fund-raising capacity, while a poor showing can doom a campaign from the start.   Like it or not, the country is becoming more diverse every year, and bycontinuing to let Iowa launch the presidential selection processalone we’re unintentionally favoring some candidates and/or voters, while disfavoring others.  Consider the following.

First, Iowa voters are more likely to be white and ruralcompared to the country overall.  The state is 91% white, 4% black and 6% Latino, while the nation is 76% white, 13% black and 18% Latino.  Iowa is also 55% less urban than the country atlarge.   Second, caucusing is more time-consuming than voting in a primary because a) for maximum impact, voters must be present to caucus; “absentee caucusing” isn’t allowed, and b)caucuses are held in the evening, creating a barrier to those working during that time, and those who need childcare. Even though this year both parties will permit citizens to caucus via phone, there is still an advantage to being “in the room where it happens” in order to impact the outcome.  Finally, compared to primaries, caucuses require a more sophisticated understanding of process in order to participate which may intimidate manyvoters into staying home.  Taken together, these issues reduce the breadth and dept of voter input.

Given these concerns, it’s prudent to consider reforms that would make the presidential selection procedure more representative of the entire electorate.  A simple fix would be to add one additional state primary or caucus from each of three other regions—Northeast, South, and West—to the Iowa caucus date.  This lets Iowa keep some of its tradition, reduces the disproportionate impact it might have on the outcome, and enhances the legitimacy of our presidential elections.


Is More Nudging to Achieve Government Policy Objectives a Good Idea?

We recently received a notice from our utility company containing information about our energy usage compared to our neighbors.  The news was good.  Colorful charts showed we had consumed less energy than the average household during the period examined.  This impressed me, but the news also prompted some guilt because I knew that part of that time we’d been out of town, during which we’d turned down the heat.  How would we have compared if we’d been home the whole time?   Were we really “better than average?”  I suspected not, and filed this thought away as a prod for improving our future behavior.

Of course, this is exactly what the utility company hoped I would do.  The company’s letter is an example of a “nudge”—a technique that encourages behavior to benefit not only individuals, but to collectively improve the lives of manypeople.   A nudge’s key feature is that it influences conductwhile maintaining freedom of choice; it doesn’t mandate or ban particular behavior.  I could ignore the utility’s notice, but I’m prompted to monitor my energy use to reduce my own power costs, which then contributes to overall energy conservation.

Private industries use nudges regularly, but they’resometimes manipulative.  Ever sign up for a magazinesubscription or a gym membership that automatically renewedunless canceled?  The assumption is you’re likely to forget about it, or not want to bother stopping it; good if you like the product, but maybe a hassle if you don’t.

Research clearly supports the effectiveness of nudges insteering behavior, resulting in their expanded use by governments worldwide to help achieve policy goals.  Examples include 1) caloric and nutritional information on food,and health warnings on cigarettes and alcohol to help improve citizen health and lower medical costs, and 2) comparative energy costs on appliances, and mpg labels on cars to promote efficient energy use.

Our tendencies to procrastinate and underestimate our vulnerabilities (e.g., I won’t get cancer from smoking) can often be overcome by nudges that encourage improved decision-making.  Therefore, should governments employ them more frequently?  For example, to increase the supply of organs for transplant needs, what if states automatically registered voters asorgan donors, but gave them the freedom to opt-out?  Consider the following.

First, given their manipulative potential, ethicists emphasize that governments use nudges only if they clearly promote the general welfare, and cost-benefit projectionsdemonstrate they will result in net benefits. Second, being aware of how nudges work can improve our ability as citizens to guide their uses in ways that enhance quality of life.

Finally, governments will always issue mandates (e.g., requiring carmakers to calculate mpg so consumers are nudged to buy fuel-efficient cars) or ban some behaviors (e.g., prohibiting driving without seatbelts), to accomplish agreed-upon goals. However, in our system of self-government, nudges that can achieve policy objectives while preserving freedom of choiceoffer appealing alternatives to mandates and bans for promoting public interests.


If We Want Politicians to Listen, We Need to Keep Talking

man wearing suit jacket holding his chin

A government that responds to its citizens’ concerns and needs is the hallmark of a healthy democracy, but a persistent theme in American politics is the belief, shared by many, that Washington politicians are disconnected from average voters.  In a recent column, I noted how over the last two years  Congress has refused to act on important issues (e.g., stricter gun control, a higher minimum wage, single-payer health insurance, and tougher environmental regulations) that are supported by super majorities of Americans.  This unresponsiveness has stemmed significantly from structural factors like the Electoral College, disproportional state representation in the U.S. Senate, and partisan gerrymandering, which currently work to the electoral advantage of Republicans.  However, scholarly research has also revealed some behavioral causes of this seeming lack of concern for citizens’ clear policy priorities.  Consider the following anecdote.

A while ago, a friend of mine, a physician considerably knowledgeable about health care, became frustrated with the continued efforts by Congressional Republicans to overturn Obamacare.  Armed with statistics about the popularity of the policy, and real-life examples of how it had improved access to health care for her patients, she decided to pay a visit to her Congressmember, a Republican who had consistently voted with his party.   As she tried to impress upon the Representative’s assistant how his boss’s votes were undermining his constituents’ interests, the aide dismissed her points and argued that the Congressman did not support Obamacare, and because he’d been re-elected, his district’s voters obviously did not support it either.   My friend left completely exasperated.

What explains the discrepancy between polling data showing support for Obamacare, electoral outcomes, and legislator voting behavior?   Part of the answer in this case is that this lawmaker represents a gerrymandered district, and doesn’t have to worry much about public opinion that runs counter to Republican orthodoxy.   However, there’s a larger phenomenon at work here that is not colored by any particular partisan stripe.  Decades of research has shown that legislators often lack detailed knowledge of their constituents’ preferences, and therefore value communication from voters to help them decide on issues.  Yet, recent research has demonstrated that politicians systematically discount the opinions of constituents with whom they disagree.   While this is a universal tendency, studies have revealed that Democrats are more likely than Republicans to engage in this “disagreement discounting” which is rooted in what psychologists refer to as “motivated reasoning,” and inclines individuals to accept arguments and facts that coincide with their own beliefs, while rejecting information that challenges their views.   More disturbingly, though, research has also shown that “disagreement discounting” is an even stronger impulse when politicians attempt to explain and defend their positions to constituents, as in the above anecdote.  In other words, simply performing a key representative task—justifying one’s issue positions—exacerbates the tendency for politicians to discount the opinions of constituents who disagree with them, and hardens their propensity to assume that these constituents surely must be ill-informed.

These findings raise serious questions about the efficacy of citizens’ efforts to contact their elected representatives.   Before we surrender in dismay, however, it’s important to note that when individuals are made aware of their behavioral biases, there’s a strong tendency for them to make corrections.   If citizens keep talking, politicians of both parties might start listening more.  Imagine that.


Despite Obstacles, Ultimate Political Power Rests with the People

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Born out of the Founders’ fear of majority tyranny and their mistrust of average voters, separation of powers and checks and balances were conceived as ways to temper democracy by making it difficult for government to act. This is because the Framers believed the primary purpose of government was to protect individual liberty, which they viewed as the right to be left alone by government. The only sure way separation of powers was designed to be overcome is with a “Madisonian Majority”—a 2/3 vote in Congress to override a presidential veto. In short, unless a large percentage of people (specifically, 67%) wanted the government to act, the Framers believed it should not act. This conflict between democracy and separation of powers is not well understood; many Americans often complain about government’s unresponsiveness on key issues without realizing that this frustrating inaction is by design.

Early on, political parties emerged as a way to unify executive and legislative power, thereby subverting the Constitutional framework, and making it easier for a simple majority to use government to address the people’s common concerns. Recently, though, with the gerrymandering of Congressional districts, increasing advantages of big (and “dark”) money in campaigns, and the continued Constitutionally-authorized requirement that each state has two U.S. Senators regardless of population, parties have sometimes been able to unify government in a way that allows a minority to undermine the Madisonian Majority safeguard. Republican control in the last two years is an example.

​Consider four policy priorities for many Americans and their prospects for government action: 1) stricter gun control, 2) a single-payer health insurance system, 3) stricter regulation of pollutants, and 4) a $10-per-hour minimum wage. Recent polls indicate large majorities of voters favor these policies—70-plus percent in each case. This level of popular support exceeds the 67% Constitutional threshold needed for government action. Yet, for two years we’ve had a President elected with a minority of votes (Constitutional, of course) together with a Congress led by a party that has taken advantage of unequal representation in the U.S. Senate (again, Constitutionally sanctioned), and gerrymandered House districts, who created a unified partisan bulwark against government action favored by super-majorities of Americans. Consequently, rather than majority tyranny, Americans have been subjected to minority rule; ironically, Madison’s fears have been turned upside down.

Reforms like reducing gerrymandering and directly electing the President would make minority rule less likely, but are difficult to achieve. The ultimate check against this kind of repression has always been the people’s vote. Yet, even though turnout in the recent midterms was higher than we’ve seen in 40 years, the full potential of this majestic power of the people remains untapped. Minority rule has certainly been weakened, but remains dominant. Will these extraordinary times continue to bring about changes in our collective voting behavior, or will the recent election results have a demoralizing effect? The strength of our democracy hangs in the balance.


If Corporations are People, Tell Us Who They Are!

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           “Corporations are people, my friend.”   This was GOP presidential candidate Mitt Romney’s awkward response to a heckler yelling for more taxes on corporations at a 2011 campaign stop in Iowa.  His sentiment ultimately became a rallying cry for Democrats in 2012 when at the kickoff to his reelection bid, President Obama emphatically stated, “I don’t care how many ways you try to explain it, corporations aren’t people.  People are people.”     As it turns out, one was righter than the other, and the consequences of that have significantly undermined our democracy.

Eight years ago, the Supreme Court issued one of its most controversial decisions when it ruled in Citizens United v. FEC that corporations, including nonprofits, have an unfettered Constitutional right to spend unlimited amounts of money on elections.   Since then, 19 states and over 700 municipalities have passed resolutions calling for a Constitutional amendment overturning the decision, and a majority of Americans has consistently opposed the ruling.   Citizens United released a flood of “dark money” into elections from undisclosed donors in corporations, and many of these organizations were created solely for that purpose.   According to the nonpartisan Center for Responsive Politics, these entities spent over $181 million in the 2016 election, up from $5 million in 2006.   That’s enough money to give 12,500 teachers a 25% raise.  Most significantly, 76% of this money was spent by conservative groups, clearly countering specious claims that the field is level for all interests.

How did we get to this point?   In We the Corporations, Adam Winkler traces the development of corporate rights, and notes two competing legal theories.  One maintains that corporations are artificial constructs; they are inherently separate from the people behind them.  In short, they’re not people, but a legal veil that shrouds the individuals who establish them.   The other theory argues that corporations are associations of individuals, and hence are people.   This argument relies on “piercing the corporate veil” in order to provide legal protections to members of corporations, including the right to anonymously contribute unlimited money to political campaigns.  This was the theory the Supreme Court’s slim majority relied on in deciding Citizens United, and also the theory that Mitt Romney awkwardly tried to explain to his heckler in 2011.

Many Americans agree that the amount of money spent on campaigns is obscene, and undermines the basic principle of one person, one vote.  While overturning Citizens United is a laudable goal, amending the Constitution is difficult.  A more modest, but significant objective would be complete transparency in campaign financing achieved by a Congressional law “piercing the corporate veil” and requiring the sources of all campaign donations and expenditures to be publicly and explicitly disclosed. Since Russians were willing to break our laws to weaken America’s democracy, one protective measure is closing the loophole that allows corporations—with members potentially from anywhere—to anonymously fund our elections.  If corporations are people, we have a right to know who they are.



Truth and Politics–2018

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In 1967, another turbulent time in American politics, philosopher Hannah Arendt began a now-famous essay with the following assertion.  “No one has ever doubted that truth and politics are on rather bad terms with each other, and no one, as far as I know, has ever counted truthfulness among the political virtues.”

In the fifty years since, we’ve witnessed examples of untruthfulness from politicians at all levels, including presidents, e.g., Nixon and Watergate, Clinton and Monica Lewinsky, and George W. Bush with WMD’s, but the level of disregard for truth and facts displayed by President Trump is unprecedented.  It began with his dishonest challenge to Obama’s citizenship, and has continued with numerous falsehoods– over 3,000 since taking office, by some counts.  Examples include his fabrications about his inauguration’s crowd size and that black home ownership is the highest it’s ever been.  He maintained falsely that he passed the biggest tax cut in history and that it was going to cost him a fortune, personally.  Most recently he asserted that he “misspoke” by using the phrase “don’t see how it would have been Russia” instead of “don’t see how it wouldn’t have been Russia” when asked  who he believed more–the American intelligence community or Vladimir Putin–about Russia’s 2016 election interference.

You might say, “So, what’s the big deal?  His lies aren’t whoppers like Nixon or Clinton, he just exaggerates.”    Most Americans would certainly agree that he does exaggerate—a lot; and only time will tell whether he’s told any whoppers.   But, the big deal is that President Trump’s untruthfulness is much more insidious because it isn’t just political spin, but a chilling embrace of mendacity that has spawned a whole new cynical lexicon with terms like “alternative facts” and “fake news” that eat away at the trust between us which is the very foundation of our democracy.   It’s also worse because it pits us against one another more so than a couple of big lies precisely because the untruthfulness is often so clearly disconnected from reality that it’s easier for many to discount as harmless—until it’s too late.

Lamenting the dangerous effects systematic lying can have on society, Arendt noted that the tangled web of untruthfulness woven in this fashion can often only be threatened by those from within “who have managed to escape its spell and insist on talking about facts or events that do not fit the image.”    Yet, several high-profile Republican defectors have only experienced ridicule or personal attacks from the president.  Their “truth-telling” continues to fall on too many deaf ears, as Trump maintains a nearly 90-percent approval rating within his party.

Arendt certainly was not arguing that truth and politics should be at odds; she was simply observing that they often were.  A healthy democracy, however, requires a fervent commitment to truth and transparency from politicians and citizens alike.  To paraphrase our president:  “What you’re seeing and what you’re reading IS what’s happening.”