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?

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Fighting a Pandemic under Federalism

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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.

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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.

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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.

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

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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.

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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.

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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.

 

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