Government dysfunction

America's response to the COVID pandemic has exposed some severe weaknesses in our system of governance. President Trump's ineffective (to be polite) response to the crisis got most of the bad press, but in truth the whole system - federal, state and local - largely failed, and likely would have failed even if the presidency had been occupied by a more competent leader. In many states even the vaccine rollout is still chaotic and unorganized.

George Will has an excellent article today in the Washington Post entitled The COVID-19 pandemic has taught us some brutal lessons about governance.  It is worth reading. It condenses the major points made in a January 6 article in the Yale Law Journal Forum by a lawyer named Philip Howard, entitled From Progressivism to Paralysis. Read Will's article to get the gist of the argument. But if you have the fortitude to read a long academic article in a law journal, Howard's article is well worth the effort.  He details the long history, all the way from the founding of the nation, of the evolution of our present dysfunctional system. And most of the steps were taken with the best of intentions.

The short version is that, with the best of intentions, we have evolved a government bureaucracy so constrained by rigid regulations rather than common sense that almost nothing can get done.  Here is the conclusion of  Howard's article:

"No one designed this bureaucratic tangle. No experts back in the 1960s dreamed of thousand-page rulebooks, ten-year permitting processes, doctors spending up to half of their workdays filling out forms, entrepreneurs faced with getting permits from a dozen different agencies, teachers scared to put an arm around a crying child, or a plague of legal locusts demanding self-appointed rights for their clients. America backed into this bureaucratic corner largely unthinkingly, preoccupied with avoiding error without pausing to consider the inability to achieve success. 

We tried to create a government better than people. Without our noticing, the quest for hands-free government started paralyzing daily choices. Now the broad sense of powerlessness is causing frustrated Americans to pound the table for change. America is at a crossroads. Just as when the Progressive Era, the New Deal, and the 1960s rights revolution caused tectonic changes in how government worked, American government seems ripe for overhaul. What is missing is any vision for a new operating vision. To do so, we must return to first principles and rebuild government on the Framers’ vision of a republic activated by human responsibility and accountability."

The issue with majority rule

Progressives are agitating for a Senate repeal of the 60-vote rule (the so-called filibuster rule), and for abolition of the electoral college in favor of popular vote elections, among other arguments for instituting majority rule in the country. These issues bring up the difficult issue of majority rule, an issue that has perplexed thinkers for thousands of years, at least as far back as Plato’s “Republic”, which is essentially a meditation on the evils of mob (read majority) rule.

Here is the crux of the problem – how to ensure that minority views and the needs of minority populations are not just ignored or steamrollered by the majority. It is not an easy problem, but it is a constant worry in any democratic society, whether it is just a small committee or a whole nation.

The founding fathers worried about this as they crafted the Constitution. During those debates the smaller states, like Delaware, were understandably worried about always being outvoted by bigger states like Virginia.  The founders worked out a complex compromise. For example, although the House membership was determined by population, so that more populous states have more weight, every state, large or small, got the same number of Senators. This was an attempt to keep the concerns of the smaller states from simply being ignored. It is not a perfect solution (no one has yet found a perfect solution), but at least it went some way toward addressing the problem.

The electoral college has much the same effect. Each state gets a number of electors equal to their total House and Senate seats, so that even smaller or less populated states have a significant say in the election.

If we went to a pure popular vote, the obvious strategy for any candidate is to not waste money or time on “flyover country”, but just attend to the needs and desires of a few heavily populated states with big urban centers – California, New York, Illinois, Pennsylvania, etc. If you live in Wyoming or Iowa or Vermont, lots of luck getting any federal politician to care about your problems or needs. Majority rule would have the predictable effect – only the issues the majority cared about would get attention.

The Senate adopted a supermajority requirement for most legislation for much the same reason. It meant that a simple majority couldn’t just steamroller legislation through. There was an incentive to cut deals, to seek compromises, and to attend at least somewhat to the minority view.

 In 2013 Democratic Senate leader Harry Reid unwisely eliminated the 60-vote requirement for the appointment of federal judges, against the advice of a number of Senators who saw that while it gave him a momentary advantage, it could also be used against his party. And sure enough, when Republicans took over the Senate, they built on his precedent to eliminate the requirement for Supreme Court justices as well, to the consternation of the now-out-of-power Democrats. The current proposal to eliminate the 60-vote supermajority for all legislation is equally dangerous. Yes, it may help Biden get some of his more contentious programs through over Republican objections, but when the Republicans are next in the majority (perhaps as soon as 2022) it would no doubt be used just as much to ignore Democratic concerns.

The framers of the Constitution worked hard to produce a system that wouldn’t be susceptible to short-term fads or hysteria or ill-advised haste. It is supposed to be hard to pass legislation. It is supposed to be hard to amend the Constitution. It is supposed to take, if not unanimity, at least a heavy preponderance of agreement among legislators to achieve these things. It seems to me that principle is more important than ever in today’s highly-polarized political atmosphere, and we would be unwise to bow to the current fad of going to pure majority rule. Those who advocate it need to think seriously about what it will mean for them when they are next in the minority on some issue that really matters to them.

 

Recommended: Ezra Klein article

Ezra Klein is the author of Why We Are Polarized, which is a good, insightful book, and which I highly recommend. His article this morning in The New York Times, Democrats, Here’s How to Lose in 2022. And Deserve It, is well worth reading. I don’t agree with all his points, though some of my more liberal friends might, but I think he is absolutely correct in his core argument that Biden has only the two years before the midterm elections to turn things around, and he had better focus his effort in those two years on things that make immediate improvements in ordinary people’s lives, or the populist revolt will defeat him.

His immediate focus on the COVID pandemic and the resulting economic distress is certainly a good start. But I resonate particularly with this part of Klein’s article (emphasis mine):

 “Among the many tributaries flowing into Trumpism, one in particular has gone dangerously overlooked. In their book “Presidents, Populism and the Crisis of Democracy,” the political scientists William Howell and Terry Moe write that “populists don’t just feed on socioeconomic discontent. They feed on ineffective government — and their great appeal is that they claim to replace it with a government that is effective through their own autocratic power.”

Donald Trump was this kind of populist. Democrats mocked his “I alone can fix it” message for its braggadocio and feared its authoritarianism, but they did not take seriously the deep soil in which it was rooted: The American system of governance is leaving too many Americans to despair and misery, too many problems unsolved, too many people disillusioned. It is captured by corporations and paralyzed by archaic rules. It is failing, and too many Democrats treat its failures as regrettable inevitabilities rather than a true crisis.”

For all his many, many failings, Trump did one thing right – he acknowledged the hopelessness and misery and economic distress of the whole underclass of America that has been decimated by globalization, outsourcing, growing inequality, and automation, He didn’t talk down to them, or disparage them as Obama and Clinton so famously did. He didn't accuse them of being ignorant or dumb or evil, as so many of the far left have been doing. He didn’t really do much to address their problems, but at least he acknowledged their plight, and that was enough to win in 2016 and almost win in 2020. Democrats would do well to learn from that.

Three recommended articles

On this Inauguration Day, there are three good articles I recommend, each dealing with a slightly different aspect of our nation:

Andrew Busch has an article in The Clairmont Review of Books entitled Why Trump Lost….but almost won. It is an unusually even-handed analysis of the election in this age of extreme partisanship, and worth reading, because this election is not the end of the story. The nation’s growing inequality, among other things, has created a large class of voters who are in revolt against the ruling political establishment, and who may well bring us other unsettling presidents in the future if the Biden administration can’t give them some hope in the next four years.

Ben Domenech, writing in The Federalist, has a piece worth reading: The Old Order Returns. Biden’s administration is “the old order” not only in the sense of the return of Obama-era players, but more significantly in the sense that all the major political leaders in both parties, starting with Biden, are OLD, very old.  And he asks whether this is a strength, or instead a measure of the weakness in the nation’s political system. A good question, worth thinking about.

Finally, Edwin Hagenstein, writing in RealClearBooks, makes the case that America Urgently Needs Civic Renewal. It’s not just the growing inequality that is driving our national unrest, it is also a change in the culture, in which the concept of civic responsibility has been lost, indeed has become something rather quaint and outmoded. President Kennedy’s admonition, “Ask not what your country can do for you – ask what you can do for your country” comes to mind here, along with the fact that civics is no longer taught in most schools, and we are paying the price for that oversight.

The impeachment effort

Let me say right at the beginning that I am no fan of President Trump. I never voted for him, I will be happy to see the back of him, and I certainly don’t want him running for president again in 2024. Having said that, I will argue that the Democratic rush to impeach him a second time, just days before he leaves office, is foolish in the extreme. He is being impeached on the wrong charge, at the wrong time, and it is the wrong tactic.

First, he is being impeached on the wrong charge. There are no doubt several valid reasons to impeach him, including especially his harassing the Georgia election officials. But his speech to the mob before they marched on Congress was very clearly speech protected under the First Amendment, and the Supreme Court has ruled repeatedly on that issue over the past century. Yes, it was inflammatory. Yes, it included falsehoods. Yes, it was unfortunate, coming from a president. Yes, the mob decided after the fact to do something illegal. None of that makes his speech illegal. He incited them to march on Congress (as many other leaders have done to many other crowds for many other causes – good and bad). Read the transcript. He never asked them to break the police lines and invade the Capital building, and I doubt that he intended or expected them to do so, or that he expected the Capital Police to be so ill-prepared to control the protesters.

The Constitution give Congress the ability to impeach for “high crimes and misdemeanors,” and leaves it up to Congress to determine what fits that category. In theory they are free to decide his hairdo or taste in suits fits the criteria, but it is a bad precedent to decide that something explicitly guaranteed in the First Amendment to the Constitution, and ruled legal repeatedly by the Supreme Court, is an impeachable offense.

Second, it is the wrong time for two reasons, one legal and one pragmatic. The legal reason is that the Constitution empowers Congress to remove a president (or federal judge) in office from his/her office. It gives them no power to try a private citizen; that is reserved exclusively to the judicial branch (who probably ought to try him on a number of charges). After noon Jan 20 Trump is a private citizen, and Congress’s power to try him on the charge ends.  None of this is just my idea – a number of legal and Constitutional scholars are making the same point.

The pragmatic reason is that president-elect Biden has a very difficult job ahead of him, with the nation in a medical and economic emergency. The last thing he needs is for the Senate to be tied up for weeks in a meaningless piece of political theater. And it is almost certainly meaningless, because I seriously doubt that 17 Republican Senators will decide to convict – that’s how many it would take, together with all the Democrats, to convict.

Third, it is the wrong tactic. The reality is that although Biden won the popular vote by a fair margin, he won the electoral college by the thinnest of margins, some 40,000+ votes. There are still 74+ million angry Americans out there who voted for Trump, and the last thing we need in our highly polarized society just now is to feed the flames already being whipped up by social media and the mainstream press by a piece of meaningless political revenge. The New York Times had it right when they called this impeachment effort “pouring gasoline on a dying ember”. Better to let Trump slink away quietly, and let the judicial system try him, as it will no doubt do, since New York at least is looking into his business affairs.

It has not gone unnoticed, even by a few liberal writers, that the very Democrats who are so incensed by the mob in the Capital were strangely silent about the BLM mob violence in Portland and Minneapolis and other places over the summer. Indeed some, including representative Alexandria Ocasio-Cortez and vice-president-elect Kamala Harris, even paid the bail of some of the protestors arrested for violence. Are they really so incensed about an attack on American democracy, as they claim, or are they really just pissed because it was their own offices that were trashed this time rather than the business of some distant person in Portland or Minneapolis?

I suspect many of the 74+ million who voted for Trump will see this impeachment effort as just a piece of political revenge, as indeed it is.  And I suspect the Democrats will pay dearly for it in the mid-term elections, and perhaps even in the 2024 presidential election. Beyond that, I think the use of impeachment as a political weapon, started unwisely by the Republicans under Clinton, and now deployed twice against Trump, sets a bad precedent. I wouldn’t be surprised if Biden ends up impeached if/when the Republicans take back the House in 2022, and probably on just as flimsy grounds.  We badly need to cool the political rhetoric in this nation, and this unwise impeachment effort is absolutely the wrong thing to do that.

Recommended: Head, Hand and Heart

I have argued before that the core of our current national discontent is the growing inequality in the nation, and that things like the election of Donald Trump and the rise of armed militias are not the cause but instead the symptoms of this discontent. David Goodhart’s 2020 book Head, Hand and Heart: Why Intelligence is Over-rewarded, Manual Workers Matter, and Caregivers Deserve More Respect deals with this argument in more detail.

From the flyleaf of the book:

“…David Goodhart divides society into people who work with their Heads (cognitive work), with their Hands (manual work), and with their Hearts (caring work), and considers each group’s changing status and influence. Today the “brightest and best” trump the “decent and hardworking” Qualities like character, compassion, craft, and physical labor command far less respect. This imbalance has led to the disaffection and alienation of millions of people.

     Much has been said about the causes of discontent in today’s Western societies – wealth inequality, disconnected political elites, educational divides. Burt there is an explanation hiding in plain sight. One form of human aptitude – cognitive ability – has become the gold standard of human esteem. Cognitive elites now shape society, largely in their own interests. To put it bluntly, smart people have become too powerful.”

It seems to me nothing exemplifies this attitude more than the current push by liberal political elites to forgive college loans, certainly an appealing idea if one is among the 30% of the population that goes to college. But the other 70% of the population might well ask why there is no similar move to relieve them of the loans they have taken out for tools, trucks, and vocational training or certification for non-academic fields.

I highly recommend this book.

US Cyber-security

The current flap about (probably) Russian hackers getting into government and corporate networks in 2020 reminds me again how unbelievably incompetent the US government and US corporations have been at cybersecurity.

Just recall –

Wikileaks, founded by Julian Assange in December 2006, has dumped some 15 million pages of US confidential and/or classified documents on the web, including, ironically, in 2010 a secret Department of Defense counterintelligence report on Wikileaks itself.

Also in 2010, Army intelligence analyst Bradley Manning (now Chelsea Manning) extracted from classified networks about 260,000 secret and confidential diplomatic cables, which he passed on to Wikileaks.

In 2013 Edward Snowden, an NSA analyst, managed to extract a unknown but large number of secret files and pass them to the Russians. His revelations included at least 15,000 Australian intelligence files, 58,000 British intelligence files, somewhere between 50,000 and 200,000 NSA documents, and some 900,000 Department of Defense documents.

Between 2010 and 2014 Chinese spy Stephen Su managed to steal 630,000 digital files from the Boeing Corporation on the design of the US Air force C-17 transport, covering almost every aspect of the design. That was enough for the Chinese to build their very own copy of the C-17, called the Y-20 transport.

Stephen Su also managed to steal about 220 megabytes of data from Lockheed Martin on the design of the F-22 fighter.

He also managed to steal from Lockheed Martin some unknown but large amount of data about our leading new fighter plane, the F-35. Enough data, anyway, that the Chinese were able to build the Chinese J-31 fighter, which appears to be an exact copy of the F-35.

In 2014 Target was hacked, revealing the financial information of 110 million customers. In the same year Home Depot lost the credit card data of 50 million customers, J.P. Morgan lost the account information of several million customers, and Sony Pictures was hacked.

In 2014 the US Office of Personnel Management was hacked by Chinese spy Yu Pingan, who stole about 22 million records of people working in government, and who had applied for security clearances.

In 2015 Hilton Hotels was hacked for the credit card information of all its chains across the country.

In 2016, (probably) Chinese hackers managed to steal the U.S. National Security Agency’s own prime hacking tools and has been using them against us.

Also in 2016, the SWIFT banking system was hacked (perhaps by the North Koreans) who got $81 million from the Bangladesh Central Bank’s account in the New York Federal Reserve.

In 2017 the Chipotle Restaurant chain was hacked for the credit card information of its customers all across the nation.

In 2018 Marriot hotels lost the information, including credit card information, on an estimated 500 million customers. Also in 2018 in the US alone T-mobile, Quora, Google, Saks and Lord & Taylor, and Facebook had major cyber security breaches.

In 2019 hackers breached at US Customs and Border Protection database, getting about 100,000 faces and license plates. Also in 2019, Capital One lost the credit card information of tens of millions of its customers.

And then in 2020 we had the major hacking that has been in the news lately. And these are only the major hackings; there have been tens of thousands of minor ones. And only the ones we know about.  – the FBI estimates that we have probably detected only something like 10% of the hackings that have occurred.

Faced with this decade of debacles, one would have thought the US government and US corporations would have gone on a war footing and massively beefed up their cyber security. If they did, whatever they did has clearly been ineffective, as the current hacking scandal shows.