I’ve heard a lot of rhetoric on the controversial Texas voter ID law claiming that it’s politically and racially biased. Because I attacked a Republican on this topic, I figured I’d give some equal time. This law was passed long before the election itself (last year), allowing ample time for a court challenge (ongoing) and then ample time after that to comply with however the court rules. As a result, my bullshit alert went off when I heard how this was a backdoor, racist attempt at suppressing minority votes.
The requirement that voters prove they are legally permitted to vote seems reasonable on its face – in fact, it’s almost certainly required under the Equal Protection clause (q.v.) – and it wasn’t a last minute attempt to change the law. So, I decided to research just a couple of the suspicious issues that were raised. It’s amazing how some simple internet research completely changes the picture painted by the talking heads.
Why Are Concealed Carry Permits Acceptable IDs, but University IDs Aren’t?
In short, because concealed carry permits provide proof of identity, residency, and the right to vote, whereas student IDs provide only proof of identity.
As of January, 2008, obtaining a concealed carry permit in Texas requires:
- A completed application form.
- Two Recent Color Passport Photographs. (That is, the permit is a photo ID.)
- Proof of age (at least 21).
- Proof of residency in Texas.
- A handgun proficiency certificate from a qualified handgun instructor.
- An affidavit stating that applicant has read and understands the law concerning a license to carry and the laws on use of deadly force and that the applicant fulfills all eligibility requirements.
- And an authorization to access records. (This relates to the fact that a criminal background check is always performed.)
So, having a carry permit is proof that you’re eligible to vote in the state election (i.e., you’re a resident that has no serious criminal record or other restriction of rights) and has your photograph on it (i.e., is proof of identity).
On the other hand, as of today, getting a University of Texas student ID requires:
- You’re a student; and
- A government-issued photo ID. (Note, foreign governments are governments.)
So, the ID proves your identity, but there’s absolutely no indication that your right to vote hasn’t been legally taken away, and there’s absolutely no indication whether you’re actually a Texas resident. In fact, it doesn’t even require that you’re a US citizen!
Similarly, Social Security cards are also not accepted, but everyone should know that these aren’t photo IDs, so there’s no proof of identity with them. You might as well be asking them to accept your library card.
I guarantee you that the talking heads making such a big deal out of this are fully aware of these significant differences, but convention wisdom suggests that criminals and non-citizens have a tendency to vote democratic, so they’re trying to (mis)characterize this as “getting Republican votes” because gun owners are Republican. In Texas, almost everyone’s a gun owner.
I have nothing against, for example, Japanese nationals, but they shouldn’t be voting in America simply because they’re taking classes at one of our universities. Am I a racist for saying so?
Besides, almost everyone is going to prove their age and residency in Texas using their driver’s license or state ID card, so allowing the use of the concealed carry permit isn’t going to increase the number of voters anyway. This is nothing more that cheap politicking.
If People Aren’t Required to Provide ID for Absentee Voting, Why Does the Requirement Exist for in Person Voting?
Good question. You do have to provide an ID for absentee voting. Sort of.
In order to vote via absentee ballot in Texas, you must fill out an application. If you’re out of the country because of a death in the family, you’re required to sign an affidavit as part of the application, and notarizations require IDs to perform. However, there are three other situations in which you may vote absentee, and none of them require you to include a copy of your ID unless you’re a first time voter in Texas.
Cutting to the chase, this is a huge loophole. It’s possible that you could fill out an absentee ballot and not provide an ID in order to vote. My guess as to why this loophole isn’t closed is because there’s an application process, which in turn raises a red flag on your name. In other words, they’ll be watching for you. If you show up to the voting site, they’ll know you already voted absentee. Additionally, you had to have voted in Texas before, and to have done that, you would have had to prove residency and identity. If you’re subsequently convicted of a serious crime or otherwise have your right to vote taken away, Texas is relying on their Department of Corrections or State’s Attorney office to notify the relevant County Clerk of the change. Okay, I can live with that assuming it’s done reliably, and none of us are in a position to deny that it is.
However, the laws don’t prevent a fake voter from mailing or faxing an application to the County Clerk with a real voter’s name, as no copy of an ID or proof of current residency would be required, nor would a notarized statement be required. The ballot could be sent to the fake voter’s address, and then the fake voter could vote on behalf of the real voter without the real voter’s knowledge. Seriously, why isn’t this happening in every election? (I bet it is in very small numbers.)
In the end, this loophole means that the new voter ID law isn’t going to accomplish what it wants to accomplish because some people can vote without any ID. That should bother you, but only because you should want people to prove who they are, where they live, and whether they retain the right to vote. Currently, even the new Texas voter ID law doesn’t accomplish that. That is, Texas (and so many other states) hasn’t done enough to protect the right to vote. Why do you oppose the measures they actually have taken?
Oh right. Fraudulent voting generally favors Democrats. Well, I guess that makes it right.
What Did You Mean by the Equal Protection Clause Reference?
I haven’t read it in a while, but the Bush v. Gore case, at its heart, was an Equal Protection case. It stood for the proposition that election processes must be fair and orderly because it would violate your right to Equal Protection if someone were able to vote more than once. If they did, your right to vote would mean less than their right to vote, and that’s not equal protection. Maybe you disagree with how that principle was applied in Bush v. Gore – a silly concern considering that most of you didn’t bother to read the case and learn the facts – but that’s an important legal requirement. Requiring identification of a voter certainly goes a long way toward providing a fair and orderly election process.
So What’s the Problem?
Let’s, for once, be straight with one another. Suppressing votes generally favors Republicans, and adding extra votes generally favors Democrats. How much of an impact each has, I don’t know, and I doubt most of my readers do, so let’s not pretend we know. The point here is that Texas Republicans are trying to cut down on the extra votes, and Democrats are claiming that this suppresses legitimate votes. Based on what I’ve gone over here, the only votes that are being suppressed are lazy votes. It’s not hard to get IDs, and stop pretending it is just because there’s a few people who have medical conditions that make them immobile. (By the way, there are exceptions for legitimate hurdles such as immobility, so really, that’s a weak argument.) If a legitimate voter wants to vote, they don’t have to do much to make that happen, and the cost of letting them get out of that responsibility is far too high. It’s the illegitimate voters that are going to have some real trouble under this law. Good.
You should be spending your time fighting for this in your state, not opposing it in other states. If anything, Texas hasn’t gone far enough. We’ll soon find out whether the courts have legitimate reasons for striking down this law. I haven’t researched the law deeply enough to determine where I stand on other potential issues with it. However, the real message here is that the talking heads on the news programs are misrepresenting the facts on the types of ID allowed, which is meant to serve their own political interests.
Yes, I know . . . .
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To all my Facebook friends that love to comment or ask questions without actually reading my articles, please don’t bother to do so. I won’t respond because your words are probably irrelevant to what I’m going to say or have already been answered. I have to lead with this request because only the first couple sentences of a post will show up on Facebook. Sorry for the distraction.
The public reaction to Citizens United v. Federal Election Commission , 558 U.S. 50 (2010), is another shining example of what’s wrong with political discourse in America, and as such, the soundest argument ever made won’t sway people’s views. Americans view the decision as favoring Republicans, which means Republicans love it, and Democrats hate it. As with most political issues, the “why” of the decision is irrelevant to most of us. We believe what we want to believe, logic be damned! Nevertheless, I’m going to give my take on it, hoping that only those that actually care about the “why” will respond (and also hoping I don’t violate item #3 in the list to which I linked in the prior sentence). A man can dream, can’t he?
What pains me the most about those that comment on Citizens United isn’t their substantive viewpoint. Reasonable minds can disagree, and – contrary to what most Americans appear to think – with the issue in play, there’s really no objectively correct answer. This isn’t a scientific question as much as it is a philosophical question, and that’s a key point lost on everyone. I’m not talking about methods for constitutional interpretation, though, so I promise you won’t be getting a lecture on that.
Aside (for context): While there is always a “political” conflict among members of the Supreme Court, it’s not – again, contrary to what most Americans appear to think – a Republican v. Democratic conflict. Instead, it’s a conflict as to how to interpret the Constitution. While there’s clearly a favorite method among each of the political parties, those favorites were picked for historical reasons, and those choices have probably influenced party positions more than the party positions influenced the choice if method. The point of this aside is simply to say that, while there’s a serious philosophical divide between the justices, this isn’t a case of favoring one political party over the other, so the justices really aren’t “playing politics.” I’ve been outspoken in my criticism of various Supreme Court cases (Eldred v. Ashcroft, anyone?), and it’s okay to do that, but we all really need to get past this political scapegoating of the Supreme Court. That scapegoating is motivated by our own political zealotry more so than by knowledge or reason.
So, what kinds of cases get to the Supreme Court? As you probably know, the Supreme Court is free to ignore most cases brought to it. That is, you usually have to request permission for your case to be heard. With the overwhelming number of cases requesting Supreme Court review, a small percentage (currently about 0.8%) actually gets heard.
Sometimes, cases before the Supreme Court are easy, and the result is a unanimous (or near-unanimous) decision. One of the many reasons a case might be easy, yet the Supreme Court has granted permission for it to be heard anyway, is that the case is very important, dealing with a Constitutional right. If the lower courts got it wrong, that’s all the more reason the Supreme Court will take it. For example, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler magazine for an advertisement in which, among other things, Falwell was portrayed as having engaged in a drunken sex with his mother in an outhouse. So, what was at stake? On the one hand, you had the fundamental, First Amendment right to freedom of speech, a right that prevents democracy from becoming a sham by allowing us to complain whenever we think it’s appropriate.
On the other hand, you had a public figure whose feelings were hurt.
Needless to say, the Supreme Court ruled unanimously in favor of a magazine that probably all of the justices found distasteful. Why? Simply put, free speech is pretty damned important. Their personal views, political leanings, and even methods of constitutional interpretation were irrelevant. This was just too easy, and Falwell’s loss in the case was total.
Another great example is a bit more recent. In United States v. Jones, 565 U.S. ___ (2012), the police exceed the scope of their warrant by monitoring a suspect’s movements by way of a GPS device installed in his wife’s car without their knowledge (that is, without the suspect’s knowledge or the wife’s knowledge). So, what was at stake? On the one hand, you had the fundamental, Fourth Amendment right to be free from unreasonable searches and seizures, a right that protects us from intrusions into our privacy and lessens the ability of the government to plant evidence in places where such evidence would be most damning.
On the other hand, the cops really wanted to get their guy.
Again, the Supreme Court ruled 9-0 in favor of the suspect. It was another really easy case, and so the loser (i.e., the cops) suffered total loss, just like Falwell.
To summarize, cases involving fundamental, constitutional rights pitted against some lesser interest are easy and usually result in unanimous or near-unanimous rulings by the Supreme Court. It’s also important to remember that the loser in both cases suffers total loss. It’s just the way things usually go in Constitutional cases.
Citizens United Is Not an Easy Case
Sticking with this theme, what about constitutional cases involving two Constitutional rights in conflict with one another? Which one wins? If a case arose in which the right to free speech and the right to be safe from unreasonable searches and seizures, which would you choose? This question is impossible to answer without me giving you a set of facts, so don’t try. My point is that, considering one side is most likely going to suffer total loss, and that “side” is a Constitutional right, there’s a lot at stake here, isn’t there?
So how do you strike that balance?
If that seems like a tough question, it’s because it is, and that’s no minor point. I’ll revisit it later. For now, think of this as a pendulum. If we swing it to the right, free speech wins. If we swing it to the left, the right to vote wins. (Do you see that I did there?)
What does the Constitution say about how we should handle this? Let’s say we were able to bring the Constitution to life as a human being and ask him, Fred Constitution, how we should handle Citizens United. Here’s how that conversation would go.
Justice Kennedy: Hey, Fred. Glad you could stop by. We have a case and need your help.
Fred Constitution: Sure. I’ll do what I can.
JK: Well, these guys are trying to dilute the right to vote . . .
FC: Are you kidding? You can’t do that! The existence of the right to vote defines democracy!
JK: Oh, sure. That’s obvious. So, we can infringe the right to speak one’s . . .
FC: Whoa! Stop right there. How dare you suggest that! The right to speech is in the First Amendment. The first one! Without free speech, all the other rights are a sham! It defines the American concept of democracy!
JK: Yeah, so it’s important, but it’s going to trample over the right to vote, and . . .
FC: Why aren’t you listening to me, Tony? Voting is a sacred right, and you’re going to allow it to be trampled? Who appointed you to the bench?
JK: Wait, you’re not listening. Political speech is the problem . . .
FC: Political speech is a problem? Are you out of your mind? That’s the entire point of the Free Speech clause. Sure, it’s a broad right, but ultimately, its purpose is to protect political speech!
JK: You’re not helping.
FC: That’s not possible. They’re my rules.
This would go on until Justice Kennedy put a gun to Fred’s head or to his own. Either way, someone’s coming out of this maddening conversation dead. In other words, the Constitution, by itself, isn’t going to help. It tells us what’s really important, but it doesn’t tell us how to balance those things when they come into conflict. Moreover, it’s become somewhat accepted in legal circles that no one constitutional right is more important than another, so as interpreted, the Constitution would just say, “Both are equally important. You’re screwed either way.”
Why do I feel the Supreme Court was correct in choosing free speech over the right to vote?
The key is that the right to free speech, while no more important than any other constitutional right, is more sensitive to infringement than the others. That is, if we take away (or just chip away) the right to free speech, the effect will be permanent, while taking away (or chipping away) at other rights can be only temporary thanks to, not surprisingly, our continued right to free speech. That’s confusing as hell, so let’s try a couple of examples.
Scenario #1: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We repeal the Fifteenth Amendment. The next day, September 13, 2001, Congress passes a (now-Constitutional) law saying, “Muslims can’t vote.” So what happens on September 14, 2001? Every single Muslim American says, “Hey, I’m a US citizen! Why can’t I vote?” Because we’re angry, and by assumption our emotion is getting better of us, we tell them to go to hell, and nothing changes. However, on September 15, and on every day after that, we still hear them complaining, until finally we come to our senses and repeal the law.
Scenario #2: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We strike the Free Speech clause from the First Amendment. The next day, September 13, 2001, Congress passes an unconstitutional law saying, “Muslims can’t vote,” and a now-Constitutional law saying, “Muslims can be executed for complaining about the US government.” (Let’s just ignore the Eighth Amendment’s prohibition against cruel punishment for now.) So what happens on September 14, 2001? Every single Muslim American says . . . nothing. Why? Because without the right to free speech, any Muslim that opens his or her mouth will be beheaded. By September 14, 2001, the issue is out of sight and out of mind, and may not ever be corrected. Do Muslims still have a Constitutional right to vote? Yes, but it doesn’t matter. They can’t complain when we take it from them.
Clearly, these are extreme and over-simplified examples, but given enough time, even the infringement of our Constitutional rights become accepted (see, e.g., that our economic rights that were devastated by FDR’s New Deal, and most of you don’t seem to care because you’ve always lived like that). The only thing that could possibly stop this atrocity is our right to speak our minds. The right to dissent prevents us from ever losing sight of the injustice. As long as we can speak, we can remind our leaders and each other of our rights, or at least of what our rights should be. All of these rights are important, but free speech prevents them from being reduced to a sham.
To further strengthen this point, it’s advisable to note that the Framers of the US Constitution knew what they were doing. When they identified a potential problem – for example, King George loving to punish his critics – they didn’t just address the problem directly. They knew that every government could cleverly get around a specific restriction, including the limited nature of federal power (see my New Deal comment). In other words, as an example, the purpose of the Free Speech clause was to protect political speech, but having the “right to political speech” wouldn’t be enough. The government would find away to punish political speech by characterizing it as non-political. Accordingly, they had only one solution: grant a broad right of protecting all speech. That way, while we’re bickering over whether Larry Flynt can say “fuck” in Hustler magazine, the right to political dissent would be safely hidden at the center of the free speech right. Put another way, as long as we can say “fuck,” we can certainly say, “fuck the President.”
Citizens United dealt with political speech that was directly under attack. The Court had to protect it. At the risk of trivializing the simultaneous attack on our right to vote, I’ll mention that the attack on our right to vote was indirect. No one was being told, “You can’t vote anymore.” This is yet another reason the Court should have gone the way it did.
Of course, reasonable, informed minds could disagree, but not on an objective level. This is why I said that the real issue is more philosophical than scientific. You can’t add up a bunch of numbers, solve a differential equation, and calculate whether I’m right or you’re right. This is a matter of what you subjectively think is more important: protecting the right to vote or protecting the right to free speech. I’ve formed my opinion; feel free to form and share yours.
One thing you shouldn’t be doing, though, is claiming this case was trivial, and that’s the first lesson of this post. This was a difficult balancing act to perform, and you shouldn’t be trivializing that difficulty.
You might be asking, “But Rob, why do we have to swing that pendulum so hard? Why couldn’t the court just nudge it a little, letting free speech win, but only a little bit? After all, the pendulum is just a metaphor.”
The problem is in how the Supreme Court works. When you request their permission to appeal your case, you submit questions for them to answer (the “Questions Presented”). These are questions that have to be phrased such that the answer is “yes” or “no.” So, when answering the questions you’ve presented to them, the court, in a very real sense, answers with either a “yes” or “no.” Of course, I’m oversimplifying a bit – the PDF of the Citizens United case is 183 pages long – but it’s certainly true that while their analysis justifying their yes/no answer may be long, and may be helpful in predicting the outcome of future cases, ultimately it answers a simple question in a single case. This results in a massive swing of the pendulum in the winning direction.
This could be mitigated by way of the Supreme Court adding hypothetical situations, going outside the case on hand to explain how the case should be applied in the future to other fact patterns. This would be an unrealistic expectation to have of the Court. There are simply too many hypothetical cases for the court to address, some of which may never arise at all, and even the known important ones would take up too much space. (If you support that idea anyway, I guess a 183-page document is too short for you, so don’t complain that my posts are too long.) Also, keep in mind that many of these hypothetical cases are based on fact patterns the court couldn’t necessarily anticipate. Their decision in the present case was necessary in order for these new circumstances to come into existence.
The result in Citizens United is that the right to vote in this country has been trampled, and it’s shameful that those that support the decision don’t seem to recognize that. The First Amendment trampled on it, so the offense taken by those opposing the decision is greatly overblown, but it has been trampled, and it’s a pretty important right, so we really shouldn’t be celebrating our free speech victory. So, now we have a mess. What can we do about it?
Well, despite the average American’s (unfounded) accusations that the Supreme Court plays politics, the truth is that each of the nine Justices is well aware of what’s happened. They see the damage done to the right to vote, and you can bet your ass that at least a couple of majority justices are chomping at the bit for a case that will allow them to swing the pendulum back towards the left drain some of the water from our diluted voting rights. (It may surprise you to know that I believe Alito, the one that shook his head during President Obama’s Citizens United rant, is one of those justices.)
This will happen.
The ACLU and others will look at the current state of things and say,
Okay, Citizens United led to 7 bad things: A, B, C, D, E, F, and G. If we took away C and F, would that be in violation of Citizens United? In other words, would A, B, D, E, and G be enough to provide for an adequate avenue for political speech even without the presence of C and F? Yes? Then let’s sue!
The result would be a swing of the pendulum back to the left. While the sensitivity of free speech would always give it an advantage, thus leaving the pendulum hanging a little bit to the right, the result of subsequent Supreme Court cases should undo the massive damage done to voting rights. Of course, everyone will still be left unsatisfied, but only because they’re giving way to political zealotry without respecting that both sides of the argument have an important interest at heart, and these are interests we all share.
This is the second lesson I want you to take away from this post: The Supreme Court will eventually strike a balance, because there are two fundamental rights at stake.
Aside: As I always reminded the judges in my moot court competitions in law school, constitutional rights “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller v. California, 413 U.S. 15, 24-25 (1973). I loved this case because it was about pornography, which I found amusing to cite in a formal discussion on constitutional rights, but it’s an important point nonetheless. Shit happens, and there’s no way to avoid it, but if you’re patient, the Supreme Court will eventually set things straight. Usually, it does, especially where the First Amendment is concerned.
What could A, B, C, D, E, F, and G be in the example above? I’m not confident I know all the aspects to this issue that those letters could represent, but one obvious example is transparency. Behind every dollar spent must be the name of a human being (or several). If company A donates $1,000, then its shareholders should be named. If the shareholder of company A is company B, then company B’s shareholders should be named. We could play this game ad infinitum, but eventually, at least one human name will have to be disclosed for every company in the chain. Companies can own companies, but eventually that chain of ownership must end with a human being (or several). Every human being with an ownership interest anywhere in the chain could be exposed, though I could see alternate ways to deal with publicly traded companies “owned” by thousands of people.
Would this chill free speech? Yes, a bit – people might be less willing to speak politically if they knew they’d be identified – but free speech isn’t absolute, and undoing some of the damage done to the right to vote would certainly be a noble cause justifying that slight infringement on free speech. Remember, this is a balancing act.
I want to remind you of the very difficult question I raised earlier:
So how the hell do you strike that balance? (The “balance” in question is between two Constitutional rights.)
If it’s such a tough question, why are you so angry/happy at the outcome? To those that support the decision, I remind you that your right to vote has been seriously diluted, even if you’re a Republican. Corporations don’t speak for you as individuals, even if you’re one of their employees. In such a case, your financial contribution to a company (through your hard work) might be used to support causes you oppose. Why is that anything to cheer?
To those that oppose the decision, the Supreme Court would like to say, “You’re welcome,” because they just protected not merely your First Amendment right to free speech, but your right to free political speech, which is the whole point of having a right to free speech in the first place. Why are you so enthusiastic about giving up that right? Is it because you perceive this particular speech to oppose your own? That’s called hypocrisy, and if that’s the way you think, you really don’t support free speech, so I couldn’t care less what you think. That’s a very un-American way to think.
I place everyone who claims this was an easy decision (whether good or bad) falls into one or more of the following three categories.
1. Stupid (there are plenty of people not capable of grasping these concepts; it’s not their fault);
2. Ignorant (you haven’t educated yourself on the case, but insist on talking about it like you have); or
3. Dishonest (i.e., a political zealot, industry member, or other person who has something to gain directly from the outcome of the case).
As an example of category #2, many of you complain that Citizens United 1) gave personhood to corporations; or 2) gave free speech rights to corporations. Those are ignorant positions. Corporate personhood was first recognized in 1819 in Trustees of Dartmouth College v. Woodward, and free speech rights were first recognized when my mother was in first grade, with the relevant test for whether speech was “corporate” in character being created two years before A Flock of Seagulls released “I Ran (So Far away)”). Those that have ever uttered either of those claims squarely fit in category two, leaving them with no justification for taking offense to the decision.
As for category #3, if you truly understand the issues and consequently have formed a knowledgeable opinion on that matter, that’s great, but if you’ve done so and are still oversimplifying what’s at stake or predicting gloom and doom for the future, that suggests you’re in category three.
People falling in either category #2 or #3 are part of the problem with public discourse, but category #3 people are helping to maintain that sad state of affairs, making them bad people as far as I’m concerned. There’s too much at stake here for you to make your money by maintaining America’s level of ignorance. You’re a bad man. A very, very bad man.
Babu would not approve.
This was not an easy case, and it was probably correctly decided, but eventually, things should level out to some extent. You need to be patient and stop acting as if the system has failed you.
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I almost didn’t publish this article. I’ve lost faith that people really care about the explanations. Americans are spoiled. They want what they want, and won’t accept any alternatives or variations. Even if this post had worldwide attention, I doubt it would matter. Democrats vote for Democrats, Republicans vote for Republicans, and swing voters vote for whomever is tallest. No amount of education or logic will change that. Then, my cousin, Kessel Junkie, inspired me to go ahead and hit the publish button as an expansion of my response to his note on recall elections. In truth, I’m mostly just writing to him, but if anyone other than he reads this and gives it some serious thought (whether they agree or disagree), that’s great, too.
In my article on Romneycare, I noted that there are many misconceptions Americans have with respect to how the government works, which directly cause us to hold ridiculous views. I also noted that politicians help perpetuate those misconceptions rather than correct them, even though correcting the misconceptions would get them off the hook very easily. Lastly, I said that I didn’t understand why politicians helped perpetuate our misconceptions.
I lied. Ironic, isn’t it?
I know exactly why this is the case, but my writing tends to use far too many parentheticals , long “em dashes,” and other means to make side points and go on tangents. I didn’t need to cloud the issue any more than I already was with, among other things, my stabs at FDR’s New Deal. The short answer is this: We punish presidential candidates when they tell us the truth.
What Did You Just Ask Me?
I estimate that about 75% of the questions that I’ve heard asked of presidential candidates are actually irrelevant to the position. This is due to the doctrine of the separation of powers that we all reference but don’t truly appreciate. In the one and only Republican presidential debate I watched, the candidates were asked by a voter, Sylvia Smitt(sp), what they would do to repeal Obamacare (otherwise known as the “Affordable Care Act” or the “ACA”). This was the debate in which Representative Michelle Bachmann announced her candidacy for President. Bachmann answered first, declaring with a stressed voice that she “would not rest” until she repealed Obamacare (0:57). She repeated that in an interview (2:42) after George Stephanopolous implicitly indicated it would be possible (0:50), so it was no accident of words. She’s telling us that, as president, she would repeal Obamacare.
As a current member of Congress, she’s one of only a (relatively) few people that actually has the power to repeal legislation. Was she announcing that she was simultaneously entering and dropping out of the race for President? Was she under the impression that she could stay in Congress even if elected President? Of course, the answer to both questions is no. Instead, she was playing to our ignorance as to how the government – our government – works.
Using another example, the budget is a creature of legislation. If you don’t believe me, just read the US Constitution. It’s on page 1. So, when we say that this President destroyed our economy, or that President saved it, we’re talking nonsense. To the extent that the government dictates the health of our economy (relatively little, in fact), Congress is almost completely responsible, with the president’s discretion on how to enforce laws having much less impact. Even where the President is relevant, with the exception of the veto power, everything that the president can do to affect the economy is ultimately subject to the power of the legislature. If Congress didn’t like what the President did, Congress could pass legislation restricting the President’s future actions in that regard. The President’s job is to execute the laws as written (though sometimes he ignores them), not create them or change them to suit his political sensibilities. Put another way, the President must always follow the rules, but the rules are set by Congress.
By the way, the state governments work the same way, with state legislatures writing the laws, and the Governor merely executing them. Again, I point you to my article on Romneycare.
So, with the sole exception of Ronald Reagan (22:45), why don’t Presidents, presidential candidates, and political talking heads correct these misconceptions even when it seems to suit their needs to do so? Here’s an example. On Real Time with Bill Maher (April 15, 2011), Bill Maher pulled out a chart showing how Republicans were responsible for our national debt, called President Bush (43) and asshole, and his crowd of sheep cheered. Prominent Republican and former Lt. Governor of Maryland, Michael Steele, could have pointed out that, to a large extent, the Democrats were responsible for the problems about which they constantly complain. Congress, which sets the damn budget, was largely Democratic for the recent increases, and Republican for the recent decreases (with the notable exception of Bush 43; reference), and thus the Democrats were responsible.
Did Steele make this argument? Did he expose the hypocrisy?
No. Instead, he went along with the ruse, focusing on President Obama’s presidency during which Obama was (supposedly) responsible for even bigger increases, and in the process looked like a fool grasping for straws. Basically, he was relying on the argument, “But you guys are so much worse than we are!” More importantly, however, he was choosing to perpetuate the misconception rather than properly, and easily, defend his party.
Clap, sheep! Clap! Someone said, “Asshole”! Isn’t that cool? Doesn’t that make your opinion seem more meaningful?
Why do these people, who themselves understand the system, help spread the misinformation? It’s because they all understand the psychology of politics, which springs from the fact that we, for the most part, don’t understand the system.
Like Everything Else, It’s All About Drama
In order to feel good about ourselves, we need drama. If we can associate drama with our statement of an opinion, we fool ourselves into believing that our opinion has more importance than it actually has. There are some reasons we’re programmed to do this, but I’ll leave this amusing article to explain those (and other interesting psychological phenomenon) to you.
Politics is no different. By characterizing our candidates as heroes, and the other candidates as villains, we give our actions in the voting booth far more importance than they deserve. Our system governs the behavior of our government far more than the party that’s in power – real change comes only from amendments to, or (mis)interpretations of, our Constitution – yet we all want and need to believe that our vote is what will make things better, and the other guy’s vote will ruin Christmas.
Is this in line with the rhetoric we constantly hear? How much did John McCain suffer for not supporting the claim that “Obama is an Arab” and by implication a terrorist? Representative Mike Castle’s (R-DE) lost his seat for, among other things, refusing to support the claim that Obama was born in Kenya, and by implication unamerican. Have you ever experienced an election in which the political talking heads did not say that the continued existence of this country depended on the outcome of that election? You can’t turn on a 24-hour news channel and not hear that. Go ahead. Turn on Fox News, CNN, or MSNBC right now. If some talking heads are being interviewed about the election, someone’s bound to make that kind of a grand, overly-dramatic statement. (While writing this part of the article, I turned to CNN, and the story being covered is, “Did the Pope’s Butler Really Do It? Inside the Vatican Leak Scandal.” Sorry, but I can’t support my point at the moment.)
Update: I tried again while writing this note. After sitting through the commercial break, CNN had a story entitled, “Boehner Makes Nice with Pelosi.” You’re killing me, CNN! I know I’m right!
So Why Lie?
I repeat my estimate from above: I estimate that about 75% of the questions that are asked of presidential candidates are actually irrelevant to the position. (I’m probably being dramatic with that estimate. More irony, huh?) So, let’s say Governor Mitt Romney is asked, “Will you repeal Obamacare?” The correct answer is, “No, because it’s not in my job description. Next question.” Instead of that answer, though, Romney will give a 5 minute promise that he’ll undo Obamacare in his first month in office, and why that’s a good thing. (I’m speculating here. To my knowledge, Romney hasn’t made this particular statement.) In fact, Romney has repeatedly justified ‘his passage of Romneycare,’ even during the Republican debates, when in fact 1.) he didn’t have the power to pass it, and 2.) actually vetoed 8 sections of the bill, doing everything he could to prevent the passage of the sections he found most egregious. Why didn’t he tell this to his fellow Republicans, who would have been very sympathetic to his actions?
The answer is twofold. First, as the governor, he’s largely powerless on the issue. Six of his vetoes were overruled within a month, and the other two 5-6 weeks after that. Even though his impotence is by design, that’s not the way we’d interpret things. We’d blame him, rather than the organization of our government, for his inability to act. That is, we’d see it as personal weakness rather than merely law-abiding behavior, and we don’t elect weak leaders, dammit!
Second, and more importantly, he needs to get us riled up. If he lies, his supporters cheer, and the explanation he gives as to why repealing Obamacare is a good idea might convince people on the fence that Obamacare is bad. On the other hand, what would he get from telling the truth? We all get confused. We’re told that we don’t know what we’re talking about, and that triggers our insecurities, which we transform into anger towards the candidate that exposed them. It also leaves us unsatisfied, because we don’t have anyone to cheer at that moment. Well, because we’re either going to cheer the candidate or boo the candidate, in the absence of a reason to cheer, we boo. We rationalize it as, “Well, that bastard deflected the question!” when in fact it’s due to our ignorance, which has just been proven.
So you see, the default position is to boo candidates. Candidates must lie in order to get the cheers, even if they’ll have no power over an issue once elected. Then, when the truth comes out (e.g., Guantanamo Bay isn’t closed), we claim it’s the candidate that’s to blame, again deflecting the blame we all share. I’m not saying that politicians shouldn’t be held liable for their own actions, but the reason liars are in office is because they’re the only ones we’ll elect. (On this particular issue, I heard a supporter of President Obama on CNN claim that we need to give Obama a pass because Obama has access to top secret information that we don’t, so he knows better whether Guantanamo Bay should be closed. I was wondering why he didn’t give President Bush that same respect. It’s amazing these people can make these statements with a straight face.)
I promise you, the instant the populace as a whole stops asking candidates irrelevant questions, they’ll stop spreading misconceptions. They’ll know that if they take credit for something outside their job description, we’ll call them out for it and make them pay. Then, as in the Guantanamo Bay example, where the candidate actually is responsible for a particular issue, they’ll be much less comfortable in lying. They won’t know if they’ll actually be held accountable for doing so.
We’re all busy. We don’t have time to learn the ins and outs of our government and constitution. I’m not critical of those that prioritize their kid’s soccer game over a reading of Article I. of the Constitution, and I don’t sit on a high horse because my education and job description require me to have some of that knowledge. Everyone needs to take care of their own business first, and in the time we have left, do the best we can to understand our government. Ultimately, our form of government is designed to shift the burden of understanding onto the professional politicians — I get that — but how can we possibly expect to do our job as a voter if we don’t understand the very basics? If my estimate is correct (it’s almost certainly close), and we’re asking the wrong questions 75% of the time, we’re not really learning anything about the candidates. On what, then, are we evaluating them? Height? (Oh right; we are.)
Congress sets the budget, which includes whether we have a deficit. Congress passed the Affordable Care Act (a.k.a., “Obamacare”) and can repeal it. If your legitimate and knowledgeable belief differs from mine on how Congress should act in these regards, then let’s have a discussion on it. There are certainly plenty of issues worth discussing, and our differences often do matter, drama aside, on whether any particular candidate should be elected to Congress. If, on the other hand, you’re falling for the smoke screen, any good votes on your part will occur by accident, but overall, nothing will actually change.
Remember, in a democracy, the people are the sovereign, and ignorance is no way for us to govern.
In preparing this piece, I rewatched Reagan’s entire speech before the Republican National Convention in 1988. It’s amazing how good of a speaker he was, and how sharp he was (the “missed me” incident starts at about 11:15), how much the rhetoric has changed since then (focusing on communism, inflation, and the misery index), but how much it stayed the same (“We are the change!” at 15:14, et al.; Libyan terrorism). It’s a good watch if you have 46 minutes to kill.
My cousin, KesselJunkie, has a blog over at, not surprisingly, KesselJunkie.com. He posted a note on why he doesn’t like recall elections. Not liking them is okay, but I wanted to let him know why I thought they need to exist. In order to double the number of people that might read my comment (from 10 to 20 people), I decided to reprint it here, though I’ve edited it after doing a little research (not much research, but some). I hope you enjoy it.
BTW, for those that don’t understand his online moniker, it’s a Star Wars reference, which is why I emphasize my X-Wing reference. He’s a nerd, but I’m not one to talk, so let’s just leave it at that.
I’ve been watching CNN coverage of the Scott Walker recall election for about 7 hours now. I’ve heard Kessel Junkie’s concerns about the concept of a special election echoed by both the left and the right, and I really want to respond to what a lot of these political experts are saying. Unfortunately, a comment on KesselJunkie.com will have to do, so please pay attention you 10 people. I expand on what I wrote above.
Recall elections serve an important place in our political process, though only 19-1/2 states allow for it at the state level (Virginia “sort of” does, so they count for 1/2). Like anything, they can be abused, and that’s what’s happened in Wisconsin, but that doesn’t sway me against supporting their existence. If a politician commits a crime, the impeachment/conviction process resolves it (relatively cheaply, I might add), though the recall election might replace the impeachment/conviction process for any given state. On the other hand, if you elect an [X]-wing (see what I did there?) politician, and he governs from the [X] (this is what’s happened in Wisconsin), then you should simply stick it out. We aren’t talking about 10- year terms; we’re talking about 2- or 4-year terms, and if you elected an [X]-winger and got what you wanted, you should save the economy some money and not waste it on your sour grapes and the w[h]ine they produce.
There’s a small sliver of factual circumstances in between those two situations. That is, there are legal actions that a politician can take that warrant his or her reevaluation. For example, what if the politician’s family members own several businesses that are getting all the government contracts? If these are legitimate businesses, then no one award of a contract can be seen as illegal, or even inadvisable, but on the whole, it’s troublesome.
What about a politician that breaks promises? What if you elect an [X]-wing politician, but he governs from the [Y]? Yes, the resulting recall election would be “all about politics,” but we’re talking politics. You can’t remove the politics from politics. In this case, the political concern is legitimate, and it speaks to the trustworthiness of a person in whom the public has placed its trust. I’d say that this certainly qualifies as justification for a recall election, depending on the degree.
One reason you could reasonably disagree, however, is that there’s no way to enforce this. How do you evaluate whether people are requesting the recall on the basis of legitimate public concerns or sour grapes? I’ve accused the supporters of the Wisconsin recall election of sour grapes, which would be perfectly in line with the American sense of entitlement about which I often complain on this blog, but do I really know that with 100% certainty? I haven’t even been to Wisconsin in over 10 years, and I certainly haven’t immersed myself in this particular recall election until tonight. Further, my reference to the “degree” of lying shows that there’s a subjective dimension to recall elections, making it even tougher to determine who’s going too far. Lastly, I note that the existence of recall elections doesn’t even address the motives of those drafting, let alone signing, the petitions that make recalls possible, except in those few states where the state constitution requires specific grounds for recall elections. I infer that those states are saying, “Hey, if it isn’t for one of these specific reasons, it’s probably crap, so it shouldn’t be allowed.” I wouldn’t be surprised if those states use the recall election to replace the impeachment/conviction process, which could mean that they really don’t have a recall election as I envision it, though I haven’t researched whether this is true. In any case, Wisconsin isn’t among those states, which includes only Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, and Washington.
The fact that recalls are so rare keeps me on the side of keeping them legal. In 2011, there were only 12 recall elections I could find that addressed political officials at the state level (as opposed to local level), with 11 state legislators facing recall (the previous single-year was 3, so this was an unusual year). There were no recall elections for federal officials. I haven’t even considered whether they’re constitutionally required by the Wisconsin case law, as opposed to merely provided for in the state constitution. The abuse that’s occurred in Wisconsin concerns me, as I suspect it might encourage similar tactics (from both the right and left) in other states. Until that happens, though, I won’t stand against their existence, and would actually like to see them allowed at the national level, albeit only for circumstances expressly listed in an amendment to the US Constitution. Again, reasonable minds can disagree.
There was an adult guy interviewed by CNN after the results were announced. He broke into tears, claiming that their election was sold out by outside money, and dramatically declaring that this was the, “end of democracy,” and that, “democracy is dead.” (My next post will address why people are so over-dramatic about politics.) While I’d love to discuss Citizens United with the guy to help him see the light (he probably hasn’t read it) – not to mention that exit polls show that 86% of voters made up their mind well before outside money became significant — for now let’s assume that this outspending indeed cost Mayor Barrett the election. So what? It’s a bit hard to sympathize with someone about a corrupt process when that person inappropriately invoked the process in the first place. Also, keep in mind that this politically devastating event wouldn’t have been possible if it weren’t a recall election. There’s rarely enough outside money available to spend on elections when they’re occurring simultaneously across the country. The only times outside money could have any significant impact in a state like Wisconsin is where, as here, there is a single election occurring across the entire country allowing the entire country to focus on it. The fact that there’s a presidential reelection bid on its heels assures national focus and outside dollars.
You picked this fight, cry-baby, and you lost. Move on.
I haven’t decided who I’m going to support for president, so this is by no means a defense of either President Obama or Governor Mitt Romney. As always, the choice is between a douche and a turd sandwich, so it’s always hard for me to pick a candidate. (More importantly, having professional political experience, I no longer share your denial of a fundamental truth: It doesn’t make a difference which party wins because the system, which is partially broken, is what determines our fate.) Something that drives me nuts, though, is when the American public fails to appreciate how our government works, and what really drives me nuts is that the politicians don’t defend themselves on those grounds. For example, according to the United States Constitution, Congress has the “power of the purse.” That is, the budget, national debt, national deficit, overspending, underspending, and all of those other bad words are the responsibility of Congress. The President’s impact is minor and can be taken away, or severely modified, whenever Congress chooses to do so.
So, when someone brings out a chart that shows the national debt increasing under Republican presidents and decreasing under Democratic presidents, he’s arguing either ignorantly or dishonestly. How do the Republicans respond? Do they point out that Democrats generally have controlled Congress under Republican presidents, and Republicans generally have controlled Congress under Democratic presidents? Nope. Instead, they claim the chart is misleading or doesn’t tell the entire story (which may or may not be true depending on the chart), rather than dispel the misconception even though dispelling the misconception is in their interest. For some reason that I can’t understand, politicians want the populace to hold these misconceptions. Some of this is pretty simple stuff, so even if the politicians are assuming you’re lazy or stupid, it still doesn’t explain the politicians’ behavior.
Why Is This Important?
In a democracy, who’s the sovereign? Who’s in charge? In theory, we are. The citizens as a whole are the sovereign. Of course, were a representative democracy, so we give people power to educate themselves and then make decisions for us, but ultimately we hold the power, and if we’re smart (we aren’t), we’ll take it back when appropriate. If you don’t even know the job descriptions of your representatives, how can you properly rate them? Do you actually think the little “D” or “R” next to their name is a good indicator of whether they’ll throw us under the bus? (If you answered the second question, “yes,” then you’re truly lost and can probably ignore the rest of this essay.)
This leads me to a double-whammy that’s occurring with respect to the attacks against Mitt Romney over the so-called “Romneycare” (also known as Chapter 58 of the Acts of 2006 of the Massachusetts General Court: An Act Providing Access to Affordable, Quality, Accountable Health Care). The complaint goes something like this: Mitt Romney “passed” a public option plan or socialized medicine or something for Massachusettes. I don’t know what to call it because no matter what I call it, someone gets angry. You know what I’m discussing, so I’ll leave it at “Romneycare.” What’s important here is that it shares similarities to Obamacare.
What’s not important here is whether or not it’s a good idea. I’m not passing judgment on any of these plans, and I ask you to avoid doing so in any comments you choose to leave. Other than the fact that it’s clearly unconstitutional at the federal level – a clarity that’s muddied by piss-poor Supreme Court decisions handed down since FDR destroyed our judiciary – I haven’t formed a substantive opinion on whether I’d support it if it ever came to the Commonwealth of Virginia. I also don’t know whether it would be good at the Federal level assuming the Supreme Court upheld it (it won’t EDIT: A poor prediction, eh?) or if a constitutional amendment were ratified to clear a path to its legality. For the purposes of this essay, I don’t care.
Here’s what’s important.
Error #1: He Was Governor, Not a One-Man Legislature
Romneycare is a creature of legislation, and Gov. Romney (and President Obama for that matter) is not a one-man legislature. The legislature passed it. The only power Gov. Romney had over it was the threat of a veto, which he knew wouldn’t work. (Gov. Romney vetoed 8 of the sections, and the legislature eventually overrode all of them.) Thus, he couldn’t have stopped it if he wanted. His job, as Chief Executive of Massachusetts, was to enforce the law once it was on the books, and he had to do that whether he liked it or not. Also keep in mind that, as the “leader” of the Commonwealth, he has to put on a happy face even if he doesn’t like the law. So, with all the flip-flopping Gov. Romney has done as a professional politician, should we believe he likes Romneycare or not? The answer is that it doesn’t matter. He has to act like he does, and he has to enforce it.
(Take a note people that either praise or criticize President Obama for his role in Obamacare. Though it’s clear President Obama supports Obamacare, it’s likewise irrelevant because it’s Congress that determines whether or not it passes and remains in place.)
Error #2: You’re Equating Romneycare with Obamacare
My friends (and enemies) on my side of the aisle will say, “Hooray, Rob! Thank you for pointing out its unconstitutionality!” Assuming I’m right, so what? While it’s arguably unconstitutional at the Federal level, state governments are governments of “general powers,” which means they can do anything not expressly forbidden by their state constitution (or that contradicts federal law). Romneycare is clearly constitutional at the state level, and there’s a very good reason for that. Issues such as these are best left to the states. States are better able to understand and address the needs of their local populations, so unless you’re a resident of Massachusetts, it’s none of your business or concern whether they choose to pass Romneycare.
On the other hand, as a government of “limited powers,” the federal government deals with only those issues that should be applicable across the board, and bad Supreme Court decisions aside, unless the Federal Constitution expressly grants those powers (or they’re fairly inferred), the federal government doesn’t have them.
Because of this huge Constitutional difference, there’s absolutely no reason to believe that Gov. Romney would support Obamacare even if he honestly supported Romneycare. Saying that it’s legal at the state level says absolutely nothing about whether it’s legal at the federal level, and saying it’s viable and useful at the state level also says absolutely nothing about whether it’s viable and useful at the federal level. They’re two separate animals, and Gov. Romney’s honest stance on one isn’t a good indicator of his honest stance on the other.
Of course, as error #1 points out, it doesn’t matter if he supports Obamacare. He’ll be executing it if it’s still in force during his presidency, and he won’t be executing it if it’s repealed. It’s simply not up to him.
There are a number of simple lessons you can learn about our government that would greatly clear up many of your misconceptions. This one is just the tip of the iceberg. Maybe your substantive opinion on Romneycare or Obamacare is correct, but if you’re like the typical American, you’re right for the wrong reasons, making your correctness an accident. If that’s how you form your opinions, you’re just as well off flipping a coin. Remember, you’re the sovereign. Is that anyway to govern?
BTW, the media doesn’t help.
I’m not a criminal defense attorney, and I’m over 10 years removed from law school when I had ready access to the statistic I’m going to reference. Things have probably changed, but not that much. Still, the caveat is important, so there; I made it.
Everyone complains, and rightly so, when we hear about an innocent person spending even a month in prison for a crime he or she didn’t commit. We demand all sorts of protective procedures in place to minimize, if not eliminate, such occurrences. We have a privilege against self-incrimination, protection from unreasonable searches and seizures, and even prohibitions against cruel punishments even after we’re found guilty “beyond a reasonable doubt.”
I agree with that high a standard. In fact, I love it. I love knowing I won’t go to jail for a crime I didn’t commit. I also love knowing that I won’t be beheaded if I decide to jaywalk some day. The result is that, relatively speaking, virtually no one faces such dangers. Wrongful convictions represent a very small percentage of the convictions that occur, and almost all of those wrongful convictions took place a long time ago. As we progress as a society — legally, socially, and technologically — that number is approaching zero. Yet, we still snobbishly complain that it isn’t at zero yet. Again, I agree with this attitude and expectation of perfection despite how unrealistic it is. The day we stop striving for it is the day we accept totalitarianism into our lives.
However, in line with our American sense of entitlement, we seem unwilling to accept the consequences of that standard. Case and point: The Casey Anthony trial.
I haven’t followed the trial, but from what I’m hearing, she’s almost certainly guilty, just like O. J. Simpson in the 90′s. Nevertheless, she walked, and justice will never really be had for her child. This is a direct consequence of the procedures that you so eagerly demand. You simply can’t have one without the other.
For those that claim that the prison system is loaded with people that aren’t actually guilty, I point them to the fact that 95% of the people that are in prison plead guilty to get there (as I said, an old statistic that may have changed). They admitted they were guilty in exchange for receiving a lighter jail sentence than their actual crime demanded. That is, at least 95% of those that are in prison are getting off easier than they should. Again, this is a consequence of the difficulty associated with getting a conviction. Prosecutors would be more than happy not to offer any deals if they thought they could actually get convictions via a jury trial. The remaining 5% must be exceptionally clear cases of crimes for them to even have had to go to trial, and still there are plenty that are found not guilty (about 20% in federal cases; no idea about state cases).
As I told my cousin, Kessel Junkie, I have no problem with his paternally-induced sense of anger he feels right now. I’m not a father, and I’m not happy that yet another murderer goes free. However, when we cool down from this initial anger, we need to stop being such elitists who think we’re entitled to a perfect world. Either accept a totalitarian state or get over the consequences of not having one. Rights don’t exist for when times are easy. They exist for when times are hard. This is one of the hard times.