New Party’s Path “Forward” Requires Electoral Changes

On July 27, 2022, David Jolly (former Republican congressman from Florida), Christine Todd Whitman (former Republican governor of New Jersey), and Andrew Yang (former Democratic presidential and mayoral candidate) published an opinion piece announcing the merger of their respective political organizations into a new political party to be called “Forward.” Most third parties have failed. Here’s why ours won’t. (republished in the Perspective section of the Star-Ledger on July 31, 2022)

The new party’s goal is to “stake out” the “sensible center of our political system.” Not surprisingly its website is presently light on specific substantive policies (as is forcefully observed by Paul Waldman’s opinion Why the third-party talk from Forward goes nowhere), but does push several changes to the way our elections work (ranked-choice voting, nonpartisan primaries, and independent redistricting commissions) that would be necessary if the new party were to have any hope of electoral success.

Ranked-choice voting (sometimes called the single transferrable vote or instant runoff system) was recently used in the New York City mayor’s race and the primary for the election in Alaska to replace the late Representative Don King. The voter does not simply choose one candidate and reject the rest, the candidates are ranked from 1 to (whatever). All first-choice ballots are counted, the candidate with the fewest votes eliminated and those votes redistributed in accordance with the voter’s second choice, and so on until one candidate has a majority. Ranked choice voting is important to a new party because it avoids the perception that a vote for the party’s candidate is wasted or that the party will serve simply as a spoiler. Because ranked-choice voting allows the voter to express her true preferences without fear of her vote being wasted, I favor it.

Non-partisan primaries,((The initial op-ed announcing the new party used the term “open primary.” As I understand an “open primary,” any voter, whether registered with the party or not, gets to vote in its primary. Proponents of open primaries argue that they would discourage extremism (at the cost of preventing the party from articulating its own message), but it is also likely that it could be used to engender the nomination of unelectable candidates, much as some Democrats are reportedly doing by providing financial support to extreme Republican primary candidates.)) as explained by Forward, would have all candidates run against each other in the primary election with some smaller number advancing to the general election. This smaller number((Forward is not crystal clear on what this number would be. The examples where the system has been implemented have only the top two advance while Forward’s “solution” called for the implementation of a final five non-partisan primary system in as many jurisdictions as possible. )) could include several or no candidates from any particular political party.

As with all good-government groups, Forward opposes gerrymandering and believes that independent non-partisan or bipartisan redistricting commissions will ensure fairness. As I have previously explained, “the remedy for political gerrymandering is not simply to ban or limit the practice, but to articulate and adopt a comprehensive and coherent set of principles for how districts (if there are to be districts) should be drawn.” Until these principles are established, the delegation of the power to draw lines to independent commissions is putting the cart before the horse.

In an Evenly Divided Senate, It Takes 50 to Tango

Anyone paying attention to national politics is aware that the 2020 election resulted in a Senate divided 50/50 between Democrats and Republicans.((All right, this is technically not true as Senator Bernie Sanders of Vermont is not officially a Democrat, although he caucuses with them, chairs the Senate budget Committee, and sought the Democratic presidential nomination in 2016 and 2020. Senator Angus King of Maine is another “independent” who caucuses with the Democrats. Close enough for government work.)) Vice President Kamala Harris can vote to break a tie, giving the Democratic Party an effective 51-50 majority.((The Constitutional text providing for the vice president’s tie breaking vote does not provide for her casting vote by an affirmative provision, but by denying her a vote except in case of a tie. “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” Article I, section 3, clause 4.))

This majority is effective only so long as all 50 Democrats vote the party line. Again, anyone paying attention knows that West Virginia Senator Joe Manchin and Arizona Senator Kyrsten Sinema have refused to toe the party line on a number of votes.

It was recently announced that Senator Manchin had been negotiating with the Senate Majority Leader, Senator Charles Shumer of New York, on what is billed as an environmental (read spending) and tax package. With 50 votes (plus the vice president’s tiebreaker) the bill can be (assuming the Senate parliamentarian’s blessing) be passed through the “reconciliation” procedure.

However, that deal contains a tax provision reportedly opposed by Senator Sinema.

It also lacks a tax provision that could result on opposition in the House of Representatives and, more critically, the Senate — the repeal or significant modification of the limitation of the deduction for State and local taxes (sometimes called “SALT”) to $10,0000. As I noted in Some Weaknesses in NJ.com’s Arguments Against the SALT Deduction Limit, the Star-Ledger‘s website, NJ.com, has published quite a few “articles” criticizing that change and advocating for its repeal or evasion.((Many of these editorials masking as news articles have been written by NJ Advance Media’s Washington correspondent, Jonathan D. Salant.))  It seems that several members of New Jersey’s congressional delegation threatened to vote against President Biden’s “Build Back Better” legislation if it did not eliminate (or at least vastly increase) the SALT deduction limit.

Even if two or three House members vote against the “climate” bill, it would probably pass the House, but the Senate is another story. And at least one Democratic senator, New Jersey’s Robert Menendez, quoted as channeling Joe Manchin, has indicated he could be a “no” vote.

The Star Ledger Editorial Board opposes this posturing:

[U]sing the SALT issue to threaten the Build Back plan was wrong, using it to hold up the epic infrastructure bill was a reckless bluff, and using it to stop the Inflation Reduction Act would be political malpractice.

NJ lawmakers can help get Biden into the red zone | Editorial

While I profess no insight into what Senator Sinema will do, I would be shocked if Senator Menendez or New Jersey’s congressional delegation let SALT trump Biden’s environmental pepper.

Jay Bohn

August 1, 2022

Are We Done with Democracy?

In West Virginia v. EPA, one of the last opinions issued during its current Term, the United States Supreme Court ruled that Congress did not grant EPA the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.

Predictably, the mainstream media was appalled and condemned the opinion, not because of any in-depth analysis of the statutory language, but because the overturned regulation was perceived as the better public policy choice. The hypothetical reader of this blog would recognize this logic– it is what supported many of the executive orders during the rule-by-decree phase of the COVID-19 pandemic: “the governor should have the power because the governor makes better choices than the legislature” (or something like that).((See, for example, my earlier post: COVID-19 and Emergency Powers.))

In an opinion piece published on NJ.com on July 24, 2022 (2 former EPA officials: The Supreme Court has dealt a blow to our planet), the authors attack the decision from the perspective that (at least as it relates to complex matters) democracy, the Major Questions Doctrine articulated in West Virginia v. EPA should serve as a limit on administrative power, is bad.

Under the Major Questions Doctrine, never before cited by a majority opinion of the Supreme Court, there must be a clear statement from Congress from which an agency can draw the conclusion that it has been given the authority to regulate a fundamental sector of the economy. Since there was no such clear congressional authorization, the Court held that the EPA did not have the authority to implement a generation-shifting program.

Instead, citing a “consensus” developed in the 1930s, the authors assert that because the two houses of Congress “possess [neither] the expertise nor the available time,” regulatory authority should properly be vested in administrative agencies “staffed by experts.” Congressional oversight would prevent abuse of power, even though “[i]n the absence of specific statutory language to the contrary, deference would be given to each agency in defining the scope and limitation of its power, its range of activity, and the interpretation of the statutes it administers.” Wow.

This proposition is no less than the wholesale transfer of legislative power to so-called “experts.” Who decides who are the experts who get all this power? The executive of course.((One can also question whether these “experts” take their marching orders from the political folks above them.))

If Congress has neither the expertise nor he time to decide the regulatory framework in the first place, how can it effectively oversee agency actions?((The answer, I suspect, is that it cannot and isn’t really supposed to. The “oversight” exercise just camouflages the effective transfer of power.))

Jay Bohn

July 28, 2022

Another insidious political reason for opposition to charter schools

For two weeks in a row, I am surprised to find myself in large part in agreement with the editorial position of NJ.com (the on-line version of the Star-Ledger newspaper). Last week it was Tom Moran’s editorial pointing out that the biggest reason that the market is not providing enough housing is the existence of municipal zoning restrictions. This week it’s the Star-Ledger Editorial Board’s opinion regarding the Murphy administration’s “sabotage” [their word] of top performing charter schools. (Murphy’s sabotage of top Newark charters reeks of politics, unfortunately, behind the paywall.)

This editorial’s explanation for the Murphy administration rejection of the expansion of a high performing Newark charter school is no doubt correct, as far as it goes:

But the truth is, beyond this rhetoric, the governor is actively sabotaging the best charter schools in New Jersey. He is influenced by the state’s powerful teachers’ union, the biggest spender on his campaigns, which seeks to block charters because the teachers at most of them are non-union.

I suggest, however, that there is at least one other insidious political reason: charter schools deprive local politicos of spoils, in the form of lucrative jobs and contracts, to lavish upon their friends and supporters.

Jay Bohn

July 25, 2022

Post script

Recently the Star-Ledger Editorial Board published another editorial along the same lines, saying of Governor Phil Murphy: “He’s dancing for the teacher’s union, which opposes charters because they are not unionized, and is finally getting its way.” The story concludes:

The facts speak for themselves: By strangling the growth of top-performing charters, Murphy is allowing an ideological position to overrule the will of parents, paying no mind to the human toll of these decisions on kids.

J.B.B.

September 11, 2022

Lack of Supply Key to Unaffordable Housing

I don’t usually agree with Tom Moran, but he’s right about this: the extraordinary cost of housing is a question of supply and demand1 and the biggest bottleneck to supply is municipal zoning.2 Indeed, I said much the same thing almost a year ago.

The problem is home rule. Municipalities use their power to adopt land use regulations to implement standards that unduly restrict the ability of the market to provide housing. Often these regulations are justified by appeals to environmental concerns or “good planning,” but the biggest incentive is economic: housing equals schoolchildren equals higher property taxes.3 Therefore, the theory goes, if residential development there must be, the best kind is expensive housing that will at least pay for the increased cost of local services by its taxes.

Jay Bohn

July 21, 2022

  1. Moran also says “the crisis brought on by the shortage of housing is a blessing [for those who already own a home.] Aside from my belief that people should buy a house to live in it, not to make a profit, the inflated cost of housing blesses only those sellers who do not need a replacement purchase and perhaps downsizers, not growing families. ↩︎
  2. Moran, however, undercuts the seriousness of his argument by hurling insults; if editorialists believe that increasing polarization is bad for the country, they shouldn’t contribute to it by use of invective. ↩︎
  3. I am not so naive to think that social, racial or “prestige” concerns have or had absolutely no role in the development and continuance of exclusionary zoning, but I do think we’d have the problem without them. ↩︎

Comments on the Parade of Horribles Said to Arise from “Independent” State Legislatures

In my last post I noted that many in the mainstream media are panicking over the prospect that the Supreme Court could decide that the Constitution means what it says when it delegates certain authority over federal elections not to the States in general but to their Legislatures. The post dealt briefly with the relevant text of the Elections and Electors clauses. and I stated an intent to address concerns about the evils the commentators believe State legislators (at least the Republican ones) will be able to accomplish in a later post. This is that post. 

Remember that the Constitution gives State Legislatures the power to regulate the “Times, Places and Manner” of Congressional elections, subject to Congressional supremacy. A state legislature may be “independent” of the State constitution, but not of federal law.

NJ.com posits: “Politicians could pass laws to purposely make it harder for people to cast ballots, unchecked by state constitutions – which are more robust than the US Constitution when it comes to protecting the fundamental right to vote.” And then, mixing two horribles together: “And this would liberate the worst gerrymanders, a practice in which state legislators redraw the boundaries of electoral districts to give their own party an unfair advantage. The popular will would be irrelevant; state Legislatures would be picking our presidents.”

CNN seems mostly concerned about gerrymandering. FiveThirtyEight, while strongly concerned about gerrymandering as well, quotes an official of the Brennan Center that acceptance of the independent state legislature doctrine “would be a voter suppressor’s fever dream.”

First, it occurs to me that the language in these comments tends toward hyperbole. Indeed, in general it is all about the evils of Republicans. I doubt there would be the same fever pitch of concern if a majority of state legislatures were in control of the Democrats.

Second, the articulated concerns about gerrymandering do no more than identify the natural desire to advantage one’s group as evil without suggesting what should replace it. As I said more than a year ago:

[T]he remedy for political gerrymandering is not simply to ban or limit the practice, but to articulate and adopt a comprehensive and coherent set of principles for how districts (if there are to be districts) should be drawn. Only then can there be manageable objective standards by which to evaluate any particular redistricting scheme.

Some Weaknesses in Current Arguments Against Gerrymandering

Third, I guess I’m getting tired of election regulations and deadlines being treated as mere suggestions by the executive and judicial branches. Certainly, the idea behind democracy is for those eligible to do so to be able to vote, but that doesn’t mean that all inconveniences must be removed. As I’ve said before, “I believe that the method for voting most likely to impress the voter with the significance of the act is the traditional one, showing up at a polling station on one specified day.” I would also allow for absentee voting, but I would prefer that there be a good reason. In-person voting allows for vigilance against fraud; removing an election official from the process eliminates this safeguard.((I know that there are those who will say that there is little to no vote fraud, so raising its prevention is merely an excuse for vote suppression. But then again, do you remember that in 2020 a Mercer County freeholder (title since changed to commissioner) delivered an absentee ballot for a friend who died before the ballot was delivered? I never did hear how the “investigation” turned out.)) But when “voting by mail” becomes the norm, concerns arise about the timely receipt of the ballot. Election law may require the ballot actually be received by the time the polls close, but judges find excuses to extend that deadline in a purely arbitrary fashion. (What is the legal basis for adding three as opposed to two or four days?((Indeed, it brings to mind the biblical story of Abraham’s bargaining with God to save Sodom and Gomorrah. Genesis 18:20-32.))) The postmark takes on a legal significance beyond its station.((Most alternative voting systems still require that the vote be cast no later than election day. If the postmark becomes the deciding factor in whether a vote is counted, the postal clerk gains the power to allow otherwise ineligible votes to be counted. As the postal service is a federal agency, I foresee difficulties in prosecuting the clerk who offers to “pre-date” the postmark for money for election fraud.))

If your state legislators are going to destroy democracy without the watchful eye of judges interpreting robust constitutional protections, maybe you’re electing the wrong legislators.

Jay Bohn

July 18, 2022

Furor Over “Independent State Legislature” Ignores Constitutional Text

Recently I’ve been seeing many news articles/editorials/analyses((For example: This Supreme Court case could be the ultimate coup for Republicans – and the death of our democracy (NJ.com-clearly marked as an editorial); Why Republicans want to redefine one word in the Constitution (CNN-an analysis); Supreme Court case could reshape redistricting. What it means for Pa. elections (Morning Call-“Pennsylvania news”), How The Supreme Court Could Turbocharge Gerrymandering — Just In Time for 2024 (FiveThirtyEight, but with none of the usual statistics), and How an upcoming Supreme Court case could upend 2024 election laws, lawsuits (behind USA Today’s paywall; also appears on MSN.com). The intellectual inspiration for many of these articles may be an “explainer” published by the Brennan Center for Justice: “The ‘Independent State Legislature Theory,’ Explained.” )) in which the authors wring their hands over the Supreme Court’s grant of certiorari in Moore v. Harper and what they call the “independent state legislature” doctrine or theory.((I’m not sure it’s first use of the term, but the name “independent state legislature doctrine” was used by Michael T. Morley in his article The Intratextual Independent “Legislature” and the Elections Clause, 109 NW. U.L. REV. ONLINE 131, 147 (2015).)) These articles take strong positions on the merits of the theory, which they warn that this case could lead to the destruction of our democracy, without (for the most part) any consideration of the constitutional text. I expect a good deal of the concern is that some of the arguments asserted to challenge the validity of President Biden’s election were based upon this theory and the usurpation of the Legislature’s authority by governors and courts premised upon states of emergency declared in response to the COVID-19 pandemic.((See 167 Cong. Rec. H77-H78 (daily ed. Jan. 6, 2021) (statement of Rep. Scalise); 167 Cong. Rec. H79 (daily ed. Jan. 6, 2021) (statement of Rep. Jordan).))

The basic premise of the independent state legislature doctrine is that the United States Constitution confers certain authority upon State “Legislatures” which thereby act as agents of the federal government. Pursuant to the Constitution’s Supremacy Clause (Article VI, clause 2), the States cannot reallocate or limit this authority granted to the Legislature. Therefore, the Legislature’s exercise of this authority is not subject to substantive provisions of the State Constitution. This theory was hinted at, but I doubt had its genesis, in Chief Justice Rehnquist’s concurrence in Bush v. Gore, 531 U.S. 98 (2000).

The present argument involves two provisions of the Constitution. The first, called the “Elections Clause,” is in Article I, section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The second is in Article II, section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The text source for these quotations, including spelling and capitalization, is the National Archives.)

Proponents of the independent state legislature doctrine argue that these two provisions mean what they say, the Constitution gives State Legislatures the power to establish rules (subject to Congressional supremacy) to govern Congressional elections in the State and the absolute power to determine how the State’s presidential electors will be chosen, all subject to the provisions of the United States Constitution.((As an example of such a provision, section 1 of the Twenty-Fourth Amendment states: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”))

Opponents who consider the text at all read “Legislature” to involve a State’s entire law-making function, including not just the potential of a veto by the governor, but also popular initiative and referendum, and perhaps much else.((Most of the articles I cited in note 1 do not bother with the constitutional text; all of them are more concerned about the evils they believe State legislators (at least the Republican ones) will be able to accomplish. I plan to address those concerns in a later post.)) They do have some support from relevant precedent. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), a 5-4 majority of the U.S. Supreme Court construed the Election Clause to countenance a voter initiative that had amended the State constitution to transfer the Legislature’s power over congressional redistricting to an independent commission.((The law review article cited in note 2 was published while this case was pending and substantively argued against the result the Court ultimately reached.))

Jay Bohn
July 14, 2022

Property Tax Reductions Won’t Last Without Controls on Spending

Everyone wants to reduce property taxes. Unfortunately, the suggested “solution” is often replacing property taxes with some other tax, essentially taking from a different pocket, hopefully of someone else’s pants. There are certainly arguments that other funding sources are “fairer” or better for other reasons. That’s not really the point of this post.

I am worried that if we adopted a plan to reduce property taxes, say by doubling or tripling the income tax to fund all schools, the other levels of government that depend upon the property tax would all too soon pick up the slack. Therefore, any significant structural change must include limits on spending by these other governments.

Jay Bohn
February 28, 2022

Free Speech, but Not for All Ideas

The French philosopher Voltaire is quoted as having said, “I disapprove of what you say, but will defend to the death your right to say it.” Many modern American institutions do not share this view.

A couple decades ago I first heard the term “political correctness,” then in the context that universities, which you would think are the haven for all sorts of ideas, were inhospitable to certain ideas, usually described as “-ist”: e.g., racist, sexist. More recently these content-based restrictions on speech have been justified by the asserted need to provide “safe spaces” for those offended by the ideas.

How often have we read of a public employee expressing some idea only to be met with the employer promising an investigation and asserting that those ideas “do not reflect our values”?

NJ.com recently reported that the mayor of Bloomfield was trying to prevent the opening of a Chick-fil-A restaurant in the local Garden State Parkway service area . (The same article was published in the Star Ledger on January 15, 2022.) The objection was not to the quality of the food but to the political views of the company’s leaders. The article quoted the mayor as saying: “Bloomfield is a diverse community accepting of all races, religions and sexual orientations, which is the antithesis of what this chain stands for.” The company can have, and perhaps express its opinions, but we’re going to punish it for them.

On January 18, 2022, the United States Supreme Court heard argument in Shurtleff v. Boston (transcript available here). For almost two decades the City of Boston had a program whereby groups could request to raise a flag on a City-owned flagpole in front of City Hall for a brief time. (The City’s own flag usually flew on that pole.) During this period there were hundreds of requests from various groups; all were approved — until the petitioner’s group requested permission to fly the “Christian flag” for one hour. The request was denied. As expressed by the City’s attorney during oral argument, “[T]he City … will not put up a flag that is discriminatory, offensive, or that supports religion.”

Clearly, many disagree with Voltaire and believe that free speech does not apply if they disapprove of what you want to say.

Jay Bohn
January 20, 2022

COVID-19 and Emergency Powers III – Still Not Much Has Changed

Two weeks ago I revisited the topic of an early April post regarding emergency powers. The impetus for the recent post was ABCNews.com’s article on a decision of the Kentucky Supreme Court regarding legislation which had limited that governor’s emergency powers. Inspired a an article entitled, “Most States have cut back public health powers,” on the front page of yesterday’s Express-Times, have much the same to say.

The article, sourced from Kaiser Health News, reports that 26 states with Republican legislatures “[took] away that powers that state and local officials use to protect the public against infectious diseases.”

The federal and state constitutions all provide for some form of separation of the legislative and executive powers. In this post I am going to consider state emergency declarations. By constitutional provision or legislation, the governor is often given the authority to declare an “emergency” and to exercise some degree of the legislature’s powers. There is no doubt that in March 2020 the new and rapidly spreading COVID-19 pandemic was an emergency. While it is still a crisis and we cannot go back to normal, I no longer consider it an emergency that requires (or even permits) legislators to sit back and accept whatever the governor decrees. The legislature is not prevented from meeting and has had ample time to assess the pandemic and consider the policies that the state should adopt to address it. Allowing the governor to rule by decree under the guise of a continuing emergency is a threat to democracy.((Let me be clear: My objection is to the process, not the substance. For example, I do not oppose, indeed I encourage, a legislatively-imposed mask mandate enforceable under the state’s criminal law (and not making store-owners the primary enforcers) and a widespread vaccine mandate, without a testing opt-out.))

While each limitation on executive emergency authority should be examined on its own merits (and there is insufficient detail in the article to do so with regard to any particular limitation), the real objection that the traditional news media has to limitation on emergency powers is that they believe that the particular policy choices made by governors are wiser (after all, they are “guided by science”) than those made by legislators.

In recent years the media have pushed as a guiding principle of political decision-making that the process must be transparent.((There is a quote, often but possibly not accurately attributed to Otto von Bismark along these lines: “No one should see how laws or sausages are made.”)) The legislative process is (or certainly should be) significantly more transparent than the executive decision-making process.

In New Jersey the governor has repeatedly tightened and loosened various restrictions, all in the name of science, but never explaining how the particular restriction (e.g., public gatherings limited to ten or to twenty-five) was related to a specific fact about the current state of the pandemic.

There is some information available about Pennsylvania’s initial lock-down order and Governor Wolf’s order that all non “life-sustaining” businesses be closed because there was a lawsuit challenging that restriction and the governor’s staff had to provide discovery on the process by which the orders were drafted. As the federal district court found:

The record shows that Defendants never had a set definition in writing for what constituted a “life-sustaining” business. Rather, their view of what was, or was not, “life-sustaining”
remained in flux. [citation omitted] Finally, the record shows that the definition of “life-sustaining” continued to change, even after the waiver process closed.

County of Butler v. Wolf, Civil Action No. 2:20-cv-677, opinion issued 9/14/20, p.49.

In the near future I intend to comment upon the amazing fact that we seem not to have learned any lessons from early COVID experiences.

Jay Bohn
September 20, 2021