Friday, May 8, 2020

Post Trump Reforms -- Executive Summary

Planning For Post-Trump Reforms

Executive Summary

This paper examines what might be done to reestablish and solidify American liberal democracy and our system of checks and balances if Trump is defeated in November.

The tools for reform are:

  • Constitutional amendment
  • New Legislation
  • Presidential executive action
  • New interpretation or resuscitation of existing congressional power
  • Reassertion of norms or declaration of new norms
  • Efforts to affect public opinion

Problem #1 – Attacks on oversight
Possible Solutions – Strengthen laws for disclosure of materials and witness testimony, with specific instances and time limits, expedited review by SCOTUS in executive disputes, Congress declare intention to use Sergeant at Arms and imprisonment for witnesses who do not obey subpoena.

Problem #2 – Attacks on fair electoral processes
Possible solutions – New legislation detailing forbidden foreign interference acts with stronger penalties, rewards for whistle-blowers, penalties up to decertification of election. Federal standardization by constitutional amendment of state laws on gerrymandering, voter role purging, voting methods. Reinstate pre-clearance in Voting Rights Act, reform Federal Elections Commission. Increase sanctions for election violations by officials.

Problem #3 – Abusive extension of presidential powers
Possible solutions – Many measures are suggested, including constitutional amendment requiring Speaker of House co-signature for pardons; requiring IG firings be for cause; time limits for “active” status; legislation to protect judges from intimidation; specific legislation forbidding nepotism; putting teeth into the Hatch Act; and a constitutional amendment prescribing penalties for crimes against humanity and genocide. Invention is also called for to produce presidential sanctions north of censure but south of impeachment. This problem is so important that major efforts in public education and a high-level commission should be considered.

Problem #4 – Department of Justice has come under complete control of President
Possible solutions – DOJ's norm for independence and protection of the constitution should be regularized by law, perhaps constitutional amendment, making it quasi-independent. The 1973 decision that a President cannot be indicted should be reversed. A special commission would probably be warranted.

Problem #5 – Corruption and conflicts of interest are rife
Possible solutions – Very specific new laws are required, compelling submission of tax returns and financial statements, spelling out the details of forbidden emoluments, and ethics offices need to be strengthened and reorganized to represent both legislative and executive branches with much stronger investigative abilities.

Problem #6 – Extensive inattention and incompetence in directing basic governmental functions
Possible solutions – Transparency is the key. Reports need to be full from departments to congress, and response of congress needs to be public as well. Science based agencies might have senior semi-independent science boards to enforce that science not be compromised.

Problem #7 – A coarse, mendacious, thuggish, racist, cynical and dictatorial demeanor and tone
Possible solutions – Make the Trump experience an educational opportunity to highlight the difference of democracy and autocracy, and the characteristics of a demagogue, while continuing to explore publicly the basis for the obvious resentments harbored by Trump supporters.

Problem #8 – Population of the United States widely ignorant of governmental processes and concepts
Possible solutions – Epic educational efforts required, with mandatory civics classes for three years in middle and high school, funded by federal government.

The Realities of Reform

The closest precedent for the Trump administration is probably Watergate. The strength of the Watergate reforms was their thoughtful changes of procedures and laws that have been lasting, and the fact that the perpetrators, except for President Nixon, received penalties of justice that included prison sentences. By contrast, Iran-Contra perpetrators received pardons that short-circuited the course of justice, and those transgressions have receded into memory with few consequences. Pursuing reforms with vigor, and allowing justice to take its course unimpeded, is certainly indicated, and would be more important than the risk associated with a precedent for persecuting the party out of power. We would be lucky if the post-Trump reforms were as significant as the Watergate reforms.

The longer article is here.

Wednesday, May 6, 2020

Planning For Post-Trump Reforms

It is hard not to think that the Trump administration represents a major inflection point in American history. If he is reelected, will anything ever be the same, either the specific policies (health, environment, immigration, tax, etc,), or the ability of government to act competently (COVID 19 being only the latest and most blatant example), or our very mode of government (liberal democracy vs. populist authoritarianism)? On the other hand, if he should be rejected, what steps will be necessary and possible to take us back from the brink?

Should Trump be defeated for reelection, it's not clear what steps the new administration would take. It would depend on the situation – what's happening with COVID-19 and the economy, for one thing; how the Democratic coalition shakes out, for another; and how big the Democratic victory is, for a third. But no matter what the unknowable future holds, it will be a good idea to be ready for it with plans to achieve reform.

Certainly, many, many substantive policies will need to be reversed, revised, rethought, and reestablished, and many new ones instituted. But as hugely important as that will be, I want to concentrate instead on what might be done to reestablish and solidify American liberal democracy and our system of checks and balances. Trump checks every box to qualify as a would-be populist authoritarian, so it is no exaggeration to say that what he has done is a threat to our system. (see Levitsky and Ziblatt).

We know, of course, that the constitution is really an outline, and that the functioning of our government evolved with laws and norms adopted through the years, as our people and conditions and understanding have changed. So as singular as this time feels, it's one of a series – think Civil War, Depression, Watergate. Maybe this time the adjustment won't be as big as those were, but it will quite possibly be significant.

One more point before we launch into examination of the Trump innovations and possible responses. If reforms are to be effected, it's a good idea to remember what tools are in the toolbox. I think these are the major ones:
  • Constitutional amendment
  • New Legislation
  • Presidential executive action
  • New interpretation or resuscitation of existing congressional powers
  • Reassertion of norms or declaration of new norms
  • Efforts to affect public opinion

Trump Transgressions and Possible Solutions 
Problem: Trump's attacks on oversight, by congress, Inspectors General, ethics units, and other bodies, has been devastating. He has ignored requirements to supply documents, has blocked testimony from employees and former employees, has retaliated against those who do testify, has dangled pardons for those who are non-compliant with law enforcement, has sought to publicly identify whistleblowers, has fired officials not compliant with his demand for loyalty to the person of the President, and has claimed immunity not only from indictment, but even from investigation. Congress has been hamstrung in enforcing its rights, partially because of Republican connivance, but more decisively because disputes between congress and the White House have been tied up in lengthy court proceedings, showing graphically that justice delayed is justice denied. Just the most recent incidence of escaping oversight has been his dismissal of legislative oversight on the corona virus rescue package, both by declaring he has no intention of abiding by the law, and then dismissing monitors who might be independent and replacing them with loyalists.

Possible Solutions: There are already laws on the books for disclosure of materials and witness testimony that Trump is flagrantly disregarding and contesting. These laws should be made even stronger, with time limits given along with concrete examples of what materials and witnesses congress is empowered to command, including grand jury testimony. Should there be a dispute, there should be mandatory rapid review of disputes by the Supreme Court. Congress could also declare its intention to use its power to compel directly, specifically including using its Sergeant at Arms to jail subpoena resisters. 
Problem: Trump has notoriously attacked the electoral process itself by allowing and soliciting foreign interference. A longer standing problem not directly attributable to Trump has been actions in the states to suppress the Democratic vote, such as purging voter rolls, gerrymandering, and limiting time and place for voting.

Possible Solutions: Legislation should supply clarifying and precise language for the constitutional prohibition on foreign interference, and sanctions other than impeachment should be prescribed for violation, including fines and jail for perpetrators, rewards for whistle-blowers, and possibly even including decertification of the election. Stronger laws and probably a constitutional amendment are needed for the federal government to intercede on state-run elections and set standards. New evidence and arguments need to be brought to the Supreme Court to reinstate pre-clearance established by the Voting Rights Act. The Federal Elections Commission needs to be resuscitated, with steps taken for appointment of commissioners with long terms, high ethics, and a new process of appointment. Sanctions for election law violations by officials or those associated with officials need to be increased, including jail terms. 
Problem: Trump's concept of presidential powers is so extreme, even in the era of the Imperial Presidency, as to constitute a qualitative change that many have rightly judged to bring the powers of the office close to those of a king. Typical has been his misuse of the pardon; his use of demotions, transfers or dismissals of Inspectors General and those who testify against his will; transfer of monies illegally from one intended use to another (from defense to the wall); overuse of the “acting” status; tolerance of violations of the Hatch Act; not to mention blatant nepotism. These are just examples. 
Possible Solutions: Many individual acts of reform, bolstering the clear intent of the constitution, are possible. For instance, reforming the presidential pardon by requiring a cosignature from the Speaker of the House is an attractive option. Requiring that demotions, transfers, or dismissals for IG and other posts to be “for cause” would be protective, as well as giving fired IG's a private right of action to sue for reinstatement, which would force the President to show cause for the action in court. Putting a time limit on officials serving with “acting status” should be considered. Legislation on Presidential intimidation of judges and suborning defiance of judicial decisions should provide a basis for indictment. Forbidding federal employment of relatives of the President and high officials unless they were in place beforehand could be enacted. The Hatch Act should be strengthened with significant penalties prescribed. Adding prohibition of crimes against humanity (children in cages, defying international law on asylum) and genocide, and making that a basis for both impeachment and indictment in the United States and in the International Court of Justice, would be an admirable constitutional amendment.

More generally, it seems that we need to invent penalties for presidential infractions north of censure but south of impeachment in an era when “name and shame” cannot deter the shameless. An example might be that, should a president be found culpable of a significant deviation from law, but one that did not reach to the level of meriting removal from office, that a monitor be appointed who would have real time access to the actions in question and real time ability to transmit this information to congress, which would then have the ability to suspend the President's authority in that field. This would be an extreme change from the present, and might not work out, but something has to be invented to provide something more forceful than shaming and less extreme than impeachment. We don't know now what that something might be. 
This issue of abuse of power, however, is one where extensive individual repairs and bolsters might not be enough. Beyond individual fixes lies the more general issue of the gestalt of the Presidency and the gestalt of the interactions of the branches of government. Maybe a commission is needed to highlight how things should work, to make the norms very clear. A high-level commission with a report to the nation, then endorsement by both houses of congress and the President, might have a lasting effect. Commentaries on basic documents and prescriptions for action based on those documents has precedent in many religions.

Problem: The Department of Justice has become a political arm of the President to excess. Especially since the appointment of William Barr, it has misrepresented the Mueller Report and discredited its findings, it has dismissed long time high career employees for fabricated reasons, and it has opposed and ignored House of Representatives notices and requests in a most political way. It has acted increasingly and startlingly as a personal arm of the President, and indeed both Trump and Barr have expressed sentiments indicating that that is the way it should be.

Possible solutions: Although it is a relatively modern innovation for DOJ to be regarded as non-political, the new post-Watergate norm of DOJ's working for the constitution and the people rather than the President should be institutionalized, maybe even by establishing it as a quasi-independent body. Legislation rejecting the 1973 DOJ finding that the sitting President cannot be indicted would be an essential step. This matter of the norms of DOJ attitudes and actions is so important that it, too, could well be the subject of a special commission, which would then produce a document that would guide actions in the future, although not by specific rules.

Problem: Out and out conflicts of interest and corruption are rife in the Trump administration, many of them abetted by nepotism. Financial documents such as tax returns have not been submitted as is customary, financial statements have been so lax as to have necessitated innumerable filing of additions (with no penalties for the “incompleteness”), relationships with foreign entities with extensive prior and current relationships with the President and his family and other officials have been extensive and secret. Presidential properties have benefited from US government payments, and staying at Trump properties has apparently been de rigueur for those who would do business with the government. Ethics violations have been rife, and ethics officials have been summarily replaced by loyalists. The Department of Justice has been inactive in this sphere. 
Possible Solutions: Tax returns and detailed financial statements need to be required on an ongoing basis of all top officials, and then be available publicly. High public officials in all branches should be forbidden from trading in individual stocks. Other activities need to be specifically delineated as prohibited, with illustrative examples, many of which would be available from this administration. Stronger investigative efforts independent of the President need to be institutionalized. Ethics officials are now spread out among agencies, many can be dismissed at the President’s pleasure, and the President is insulated by having a White House ethics operation that, if staffed by loyalists, insulates the President from true investigation. Legislation might instead establish two separate Commissions on Ethics, one in the Department of Justice and the other in Congress, with a strong liaison between them, and with connections to the IG’s and independent means of enforcement. Independence and transparency would be key.

No doubt investigations will find illegal activities in the Trump administration. But just as important are those activities that are legal but shouldn’t be. This would be a perfect time to attack this issue head-on, and to pass very specific laws making illegal specific acts and practices, and prescribing financial and incarceration penalties. It would seem that many younger members of the House might be perfect members of a committee with this mission.

Problem: Beyond disagreeing with prior objectives of governmental officials, the Trump administration has often simply declined to do its duty in operating them (see The Fifth Risk by Michael Lewis). The simple ability and will to operate the functions of government has been deficient as never before.

Possible solutions: Transparency might help with this: all cabinet departments report their activities to Congress each year. Congress might be compelled to issue a responding document where they must go on the record as accepting some and rejecting other contentions, and the documents would be public property. Furthermore, the departments dealing with science might be required to have professional panels of senior respected officials who would sit in scientific judgement on the department and be able to accept information from internal personal on an anonymous basis, with public disclosure of their findings, and powers of inquiry. 
Problem: The coarse demeanor, unbridled mendacity, elevation of thuggish behavior, racism and support of white supremacy, and preference for dictators as friends and preferred allies is informal, not illegal, but very destructive. The moral ideals of a nation are important, even when we know that hypocrisy is a frequent companion. Cynicism is the enemy of good government and a progressive future. The problem here is that the Trump base often thrills to this rebellious quality of Trump, and many of them feel that his posturing embodies many of their own resentments of their life’s frustrations.

Possible solution: It would be a mistake to bless the election and move on without examining this phenomenon. It should be taken as a learning and educational opportunity, rather than simply a chance to condemn and boast that “we won.” Finding a way to examine and meet the grievances directly, finding a way to respond to those who represent these issues in a less-threatening and more decorous way, and strengthening laws that prevent intimidating and hateful behaviors and supporting them with fines and arrests, would be an admirable pincer movement. 

Problem: Large parts of the public are either ignorant of the basics of civics education, or are inattentive. Democracy requires that voters have information on which to base their votes, and that they be educated to know how to judge this information. They need to know what a President is required to do and how he or she might be prepared to do that, and they need to know how our liberal democracy works in theory and practice. They need to know how a democracy differs from an autocracy, and the definition of a demagogue. 
Possible solution: In a country where perhaps a majority of citizens cannot name the three branches of government, and where civics education has drastically declined, nothing short of a major effort at civics education is necessary. This effort might include a requirement of civics and American history classes for three years in middle school and high school, with the Department of Education leading the efforts to produce the necessary materials and supplying generous funding, national awards for excellence, and special teacher stipends.. There are a myriad of programs that can be imagined. The project needs to be made a high priority and acted upon.

The Realities of Reform

These are just ideas of what might be the elements of a Post-Trump reform. Who knows what will be possible and which items will receive the highest priority when conditions change? Reforms will be dependent on the will of the people as expressed in the November election, and events as yet unforeseen.

It’s always a good idea to visit “the last time this happened.” The most obvious analogy to our present situation might be Watergate. There are obvious similarities in both the flouting of laws and norms, as well as Presidents with deeply flawed and aggressive personalities. In both cases, the Republican party stuck with their chief, until the endgame in Watergate, and we don’t know the endgame yet with Trump. 
Trump’s deviations from a “normal” President, however, are more extreme than with Nixon, both in the extent of the official violations and the extremity of the personal qualities. Whereas Nixon was highly capable and experienced, and accepted the game as it was generally played, Trump has no basic abilities beyond that of a showman, and is acquisitive to the extreme, as Nixon was not.

In addition, the times are different. In Nixon's time the United States was much stronger internationally than now, still rising in power and wealth, and the palpable sense of decline of preeminence was not present. In Nixon's time children could still expect to do better than their parents as a matter of course. In Nixon's time the Republican party was more moderate, dark money was not so much of a factor then, and Nixon's world didn't have a rise of authoritarians who celebrate their form of government as superior to the stodgy old liberal democracy of the United States and the West. And in Nixon's time, white people were still a strong majority in virtually all parts of the country.

Despite these differences, Watergate is probably the most useful guide our thinking. The effort to reform after Watergate was profound.
(The Watergate reforms) sought to restore faith in the U.S. political system by combating the corrupting influence of money in politics; promoting ethics and transparency in government; protecting people against abuses of government power; and limiting certain extraordinary exercises of presidential authority.” Berger

In addition to the strength of these reforms – which included the establishment of the IG system, by the way – the imprisonment of so many of the Nixon officials was shocking and impressive, even though the course of justice for Nixon personally was diverted by President Ford's pardon. Nothing says “wrong” like jail. The image of Watergate still reverberates, the headlines are still striking, the stench is still in the air. And the reforms, by and large, have stuck.

A cautionary object lesson in the opposite might be how Iran-Contra was resolved when George H. W. Bush accepted the suggestion of Attorney General William Barr and preemptively pardoned the conspirators, thus also exculpating himself. The shame and the lesson were lost as an example to the public, and the illegal usurpation was not even mentioned when President Bush died. The difference in how Watergate and Iran-Contra were handled and what their impact was, is striking and informative.

Will there be active reforms that contradict the trends of the Trump era? Will there be a V-bottom, and will liberal democracy rebound even more robustly? Will active investigations and pursuit of miscreants of the Trump era resemble those of Watergate, if not for prison sentences, then at least for claw-backs of ill-gotten gains? While some say we don’t want to be a Banana Republic where political opposition is jailed, immunity for miscreants would be a worse message. Given the extent of the Trump depredations, this is likely to be a full employment program for investigators and lawyers, but it is hard to think of a just alternative to intense discovery, reparative actions, and very active reform.
Or, possibly, will a new coalition in power decide that they like the system Trump has instituted, and find the new executive freedom to act congenial? In that case they might concentrate on reversing policies, instituting new ones, and going easy on reverting to checks and balances. It seems unlikely, but it's possible.
They say that history doesn’t repeat itself, but it rhymes. Or, as Marx said about the 18th Brumaire of Louis Bonaparte in perhaps his most cited quotation: “History repeats itself, the first time as tragedy, the second time as farce.” Farce may be funny and ironic, but it can also be very, very sad.

We shall see.

Budd Shenkin

With the help, corrections, and suggestions of David Levine, who is not responsible for deficiencies, of course.

Monday, May 4, 2020

Do You Need To Pay For Health Care To Value It?

I had an exchange of opinions (respectful, I think) on Twitter with a Georgia-based consultant who says he has run many practices. He's very pro High Deductible Health Plans, and talks about how patients only value what they pay for, along with advancing the old "skin in the game" argument.

It then struck me -- so many of my patients were Medicaid and didn't have "skin in the game."  Yet I think we had an excellent relationship and I have no doubt about their appreciation.

It seems to me that it's the relationship, and the patient's understanding that you care, and that you are trying, and that you have respect for them, that is the crucial element.  The patient's paying is like another way of attacking it, that substitutes for that relationship.  Because if you pay for it, there's a cognitive incentive for you to value something, because you figure if I paid for it I had better value it or it's wasted money.

So looked at that way, the skin in the game argument is taking advantage of the cognitive error of sunk costs (I think that's what it's called) in lieu of establishing a caring relationship.

I don't know, maybe gets at part of the truth some of the time.  Certainly doesn't work for everyone and every relationship.

Budd Shenkin