You Can’t Get There From Here
This week California Governor Gavin Newsom signed a bill that requires every presidential candidate to provide five years of tax returns in order to appear on the primary ballots in that state. To the average citizen, this would seem like a common sense idea that would codify into law the post-Nixonian custom that provided some assurance to the electorate that the candidate was not beholden to criminal and/or foreign elements. The new law would seem to be in a similar category to other good government measures such as requiring candidates to report campaign donations and spending. But the discussion about the constitutionality of this new California law not only highlights the legacy deficiencies of our democracy but is also illustrative of the basis of the fight among Democrats between the structural reform favored by progressives and the incremental reform of moderates.
According to the renowned constitutional scholar Lawrence Lessig, the California law is clearly unconstitutional. Lessig does agree that passing a law that requires the disclosure of sources of income would be constitutional but that denying ballot access for refusal to do so would not. He cites the law striking down congressional term limits on the grounds that the qualifications for office in the Constitution contain no such provision. Lessig believes that this law effectively creates a similar bar to ballot access that is simply not supported by the Constitution.
Lessig does, however, note that the courts have upheld laws that restrict the loser of a major party’s nomination from running as an independent, that ban write-in voting, and that require a minor party candidate to get at least 1% of all primary votes in order to appear on the ballot. Similarly, the Ninth Circuit recently upheld California’s law that requires independent candidates to collect signatures from 1% of registered voters in order to appear on the ballot. Those decisions and the fact that simply complying with this minimal requirement for tax information would allow ballot access are what lead other legal scholars such as Lawrence Tribe to think that this law would pass constitutional muster. But Lessig dismisses those prior decisions as being part of the states’ responsibility “to make sure the election functions in a reasonable and effective way”. He believes that requiring tax returns goes far beyond that function.
Election law expert Rick Hasen actually wrote about this possibility over two years ago when a number of states were considering such a law. Like Lessig, he considers that the prior ruling on term limits is potentially limiting but, unlike Lessig, believes that the bizarre nature of how we actually elect presidents may actually be more controlling and provides the leeway for this law to pass constitutional muster. There is no right to vote in the US Constitution and when we vote in presidential elections, we are not actually voting for the candidate but for state electors who have pledged to cast their Electoral College vote for the person who gets the most votes in that state, with the exception of Maine and Nebraska which allocate their Electoral College votes by congressional district.
Hasen cites Article II of the Constitution which states that “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”. This gives the states broad powers over how the electors who actually choose the president are selected. In fact, the Supreme Court has already ruled that the individual state legislatures may take back the ability to choose the state electors from the voters and simply select those electors themselves. Hasen’s theory is that “[I]f a state legislature can take back from the voters the right to vote at all for president, it may be able to use ballot-access laws to limit the candidate choices presented to voters”.
Lessig counters that argument by pointing out that the California law is limiting ballot access to the respective parties’ primaries and cites another Supreme Court decision which states that “[t]he States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to National Political Party Conventions were left to state law each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result”.
Whether the law is constitutional or not is something that will eventually be decided by the Supreme Court, perhaps before the California primary next March. Considering that this law will probably only effect President Trump, it would seem highly likely that the Court’s conservative majority, at a minimum, will strike it down. But there is one thing that all of the aforementioned legal experts do agree on and that is, if constitutional, this law could open up a Pandora’s box of retaliatory measures. Lessig posits red state legislatures requiring a birth certificate or an affirmation that the candidate is or was not a member of the Communist party in order to gain ballot access. Hasen worries that red state legislatures can simply require that their state electors to simply vote for the Republican candidate no matter what.
All of this prompts one to ask if this is any way to really run a democracy. It seems absurd that we pretend we are a democracy when there is no constitutional right to vote. It seems ridiculous that the voters do not really elect the president, the most powerful office in the country, but instead vote for some unknown functionaries who pledge to follow the wishes of the majority of the voters in the state but are not actually required to do so. It seems insane that we call ourselves a democracy yet select the president based on an arcane and sclerotic system that was developed 230 years ago, was designed to bribe smaller states to join the Union, and is a legacy of slavery, rather than determining the outcome by which candidate actually gets the most votes. It was only a freak of demographics and history that the popular vote winner was so infrequently denied the presidency because of the Electoral College over those two centuries. And we have actually sunk below banana republic territory when our government is forced to admit that foreign actors have infiltrated our electoral system to such a degree they had the capability to switch votes even though it has no specific proof that was actually done, basically admitting that the vote tallies can not really be trusted. And none of this is excused by simply saying we are a democratic republic.
But even beyond all these critical flaws, have we now reached a point where we can’t even implement something as basic as codifying the norm of requiring a presidential candidate release their taxes without fear of what amounts to the political equivalent of nuclear retaliation from the extremists in the Republican party. Donald Trump is an aberrant President, a criminal who has committed felony campaign violations and multiple counts of obstruction of justice, violates the Constitution and the Emoluments Clause every day, and has destroyed many of our governing norms. But as the withdrawal of the Ratcliffe nomination illustrates, Trump is only as aberrant and tyrannical as the Republican party allows him to be. The party created the environment in which Trump could rise and the party is his enabler.
It was the Republican party that decided to oppose Obama on every front, even rejecting the Grand Bargain that would have given them the entitlement reform they supposedly craved, and strove to make him a one-term president. It was the Republican party that blocked Obama’s judicial nominations in unprecedented fashion that has now allowed those position to be filled with Federalist Society hacks. It was the Republican party that refused to even provide Merrick Garland with a hearing. It was the Republican party that refused to defend our country from attack, not only refusing to join a bipartisan statement condemning Russia’s attack on our elections but also threatening to turn that statement into a partisan fracas. It is the Republican party that is blocking efforts today to strengthen our election security, once again choosing party over country. It was 12 Republican Senators who just broke four Senate rules in order to move a bill that would legalize the kidnapping of children and throwing them into concentration camps on the southern border. And it is the combination of the fealty to a document that never imagined high-capacity automatic weapons along with largely Republican intransigence that allows innocent Americans to be essentially massacred on an almost daily basis.
And beyond the Republican sabotage of our own governing institutions, the planet itself is faced with the existential threat of climate change that will require a radical restructuring of the way the world economy works. That restructuring will come either from human decisions or by the force of nature itself. But the Republican party still lives in the bubble of climate change denial and is currently actively subverting measures to mitigate its damage.
This history is why progressives almost puke when Joe Biden says of Republicans “With Trump gone, you’re going to begin to see things change. Because these folks know better. They know this isn’t what they’re supposed to be doing”. Brad DeLong perhaps summed up the Obama years best, saying, “Barack Obama rolls into office with Mitt Romney’s health care policy, with John McCain’s climate policy, with Bill Clinton’s tax policy, and George H.W. Bush’s foreign policy. He’s all these things not because the technocrats in his administration think they’re the best possible policies, but because [White House adviser] David Axelrod and company say they poll well. And [Chief of Staff] Rahm Emanuel and company say we’ve got to build bridges to the Republicans. We’ve got to let Republicans amend cap and trade up the wazoo, we’ve got to let Republicans amend the [Affordable Care Act] up the wazoo before it comes up to a final vote, we’ve got to tread very lightly with finance on Dodd-Frank, we have to do a very premature pivot away from recession recovery to ‘entitlement reform’. And did George H.W. Bush, did Mitt Romney, did John McCain say a single good word about anything Barack Obama ever did over the course of eight solid years? No, they fucking did not. No allegiance to truth on anything other than the belief that John Boehner, Paul Ryan, and Mitch McConnell are the leaders of the Republican Party, and since they’ve decided on scorched earth, we’re to back them to the hilt”.
What candidates like Warren and Buttigieg realize that the moderates like Biden and Hickenlooper either refuse or pretend not to acknowledge is that there is no “other side” to negotiate with. The problem will not go away with Trump because Trump was never the real problem. It was the Republican party that enabled Trump to be where he is today that is the source of the problem. And chances are it will get actually worse after Trump goes away because a more competent demagogue will be ready, willing, and eager to take his place (cough Josh Hawley, Tom Cotton cough).
As DeLong notes, “Until something non-rubble-ish is built in the Republican center, what might be good incremental policies just cannot be successfully implemented in an America as we know it today”. For example, expanding the ACA by adding the public option may poll better than Medicare for all right now but the idea either one will get through the Senate, even if Democrats regain control of that body, without repealing the filibuster is pie-in-the sky thinking. After all, Republicans at least nominally support the ongoing lawsuit to declare the ACA in its entirety unconstitutional. Similarly, even the most conservative common-sense gun reform will only pass by ending the filibuster.
When the Confederacy seceded, Lincoln did not go around saying we can find a way to compromise with the South about slavery in order to keep them in the Union. He’d already tried that, putting unfounded faith in supposed Southern loyalists, and it obviously didn’t work. Instead, he based the campaign to restore the Union largely around the idea of preserving democracy as he so eloquently expressed in the Gettysburgh Address when he declared a “government of the people, by the people, for the people, shall not perish from the earth”. The Obama era has shown that the Republican party has seceded from its responsibilities as a governing party or part of a governing coalition. Its sole purpose is to maintain whatever power it can by exploiting the inequities of our current electoral and political systems and the racial divisions in our country.
Biden was right about one thing at the debate when he tried to say that four years of Trump would be an aberration but eight years of Trump would result in the America we know no longer existing, even though he botched line. Every Democrat on stage would agree with that. And that is why progressives like Warren would rather go down fighting for our principles and our democracy than trying to play a game of inside baseball in order to win in 2020 with no real vision or plan for confronting the underlying problems that got us here in the first place.
Pete Buttigieg eloquently expressed that in the first debate when he summarized “When will we outgrow the Electoral College and become a nation where the people pick our President? Why are we loath to adjust the size of the House of Representatives, or act to ensure that voter registration is made either universal or obsolete? Who can rebut the premise that every American citizen ought to have two senators and a real member of Congress? And why are we afraid to push a constitutionally guaranteed right to vote?…Without such fundamental reform, we can’t fix the democracy deficit that helps give rise to fanatical congressmen and abusive presidencies. Such bold proposals also hold the key to something we will need in order to hold the attention of a new generation: an agenda that would mean as much in 2050 as in 2020. This is no time for meek plans, and Democrats who still fret over finding a meaningful party ‘message’ should remember that it’s encoded in the very name of our party. After all, we are Democrats not least because we are ‘democrats'”.
The answer, of course, is that we will never get there unless we actually fight for that day. And perhaps we could also force presidential candidates to release their taxes without worrying that Republicans will abuse the process for doing so for purely partisan purposes. Or will that still be too much to ask.