Tackling Polarization

The fact that American politics are polarized today is not a revelation. Trying to understand the reasons for this circumstance is another story.

Ezra Klein, the former Washington Post economic columnist, has published his take on our current warfare in a new book, Why We’re Polarized.  Leaving the Post in 2014, he started Vox, a news and opinion website, noted for its explanatory journalism. He continues to be editor-at-large of the website.

Klein describes as the subject of his book: “How American politics became a toxic system, why we participate in it, and what it means for our future….”  Our current political system and environment he says provides fertile ground for the proliferation of lamentable polarization.

The presidential election of 2016 drew even more attention to the issue in part because the outcome was so unexpected. Clinton’s long time presence on the political stage as well as the dynamics left over from the 2008 contest between firsts: a woman v. an African American. In 2016, she and her supporters felt she was “entitled.”

Also, Trump as a candidate was viewed as an outlier; a misogynist who had never been elected to public office, nor held any position of public trust. Klein offers evidence, however, that Trump’s election performance was not that different from recent GOP presidential nominees. He attributes that to “negative partisanship.”

“We will justify almost anything or anyone so long as it helps our side, and the result is a politics devoid of guardrails, standards, persuasion or accountability.”

To which Klein poses the question, “Aren’t we better than this?”          

Polarization of this nature has contributed to gridlock when either party has attempted to govern. Hence, American voters have become frustrated as electoral victory fails to produce responsive government. A major factor in Klein’s view is our focus on personalities in the political arena. The result he says is “one election’s heroes turn into the next election’s scoundrels.”

Referring to the many different sources of polarization, Klein focuses on “political identity.” All Americans engaged in politics are engaged in identity politics according to Klein, but the term has been “weaponized” and used to disparage some historically marginalized groups and label them as overly self-interested.

In reality, as Americans we have countless identities.  Some are actually in conflict with others, while others seem to be ignored completely. For example, the white blue collar workers in the Carolinas who seem to consistently vote against their own economic interest.

Complicating our efforts to create some sense of order in our political system is the tendency to merge our political identities with our racial, religious, geographic, ideological and cultural identities. The urban v. rural divide splinters our unity as well.

Today’s America is a much more diverse nation than was the case even seventy-five years ago. Our political institutions, created for the most part nearly 250 years ago and last modified to any great extent in the 1960s, are having difficulty accommodating the fractious partisanship.

A primary objective of the framers of the US Constitution was to create a system that would prevent the consolidation of power within any branch of government or at any level. So members of the two houses of congress are elected according to a different schedule and structure and neither house is in sync with the election of a president.

As result, the question of who represent a majority of American voters is often unclear. Everyone is aware that Trump won the 2016 election in the Electoral College but did not receive a majority of the popular vote. Most probably do not realize the GOP majority in the Senate received fewer votes than did the Democratic minority.

Often we hear pleas for greater bipartisanship among our elected leaders, but as Klein notes the parties are too evenly divided to encourage cooperation. Instead, each considers minority status temporary and prioritizes seeking advantage in the next election. The result is generally gridlock.

The parity between the two parties also influences how they campaign. There is less and less emphasis on trying to persuade members of the opposition and more attention given to achieving the maximum turnout among partisans. This tends to harden the divide once the campaign is over and governance is the order of the day.

Polarization has also undermined unity within the parties. Congressional incumbents recognize that only the most highly motivated voters participate in primaries. Such voters do not view bipartisanship as a virtuous activity.  

Ironically, bipartisanship is more evident when one party has a significant majority. The minority party at that time recognized the only way to achieve any of its objectives required a willingness to compromise.

Most voters do not constantly monitor government, so parties play an essential role in a democratic political system. Since we are not likely to have an ongoing interest in every area of governmental responsibility, parties help us to manage the choices that confront us when we must choose our elected representatives.

Klein does not offer any magic bullet to reduce polarization, but he does make some suggestions worth pondering.

First, we should adopt an attitude of mindfulness.  That is that we become more sensitive to our various political identities and recognize when politicians and the media are manipulating us. Think about the white blue collar workers in the Carolinas.  

And second, we might reduce focus on national politics and become more concerned and involved with state and local politics. He cites several advantages in making local political identity more powerful:

S    1) Since we live among people more like us, politics is less polarized.

2    2) Questions are more tangible and less symbolic, discussions are more constructive and less  hostile.

3    3) We can have more impact on state and local politics than on national politics, and it feels  empowering to make a difference.

4    4) Being involved with state and local politics will make us more effective, because it’svaluable  experience and because local officials frequently become federal officials; they keep in touch  with people they’ve known along the way.

Klein finished Why We’re Polarized before the coronavirus struck the US.  Subsequent events make his recommendation to give more attention to state and local politics unusually foresighted.

US Independent Agencies Are under Threat

The coronavirus crisis has raised public concerns about the effectiveness of government in the US. It is too soon to make definitive judgments, but the right-wing element now dominating the US Supreme Court appears ready to make management of the federal government much more difficult in the future.

Dissenting opinions in two cases decided last June and comments made during a pending case heard in early March indicate a strong desire to significantly restrain the legislative role of Congress and reduce the effectuality of a frequently used institution of the modern US government: the independent agency.  Doing so would also likely deepen the political conflict between the President and the Congress as well as the deep divide between the two major political parties.

The first June decision came in a challenge to a 2006 federal law requiring convicted sex offenders to register in states where they lived and worked. Faced with some practical problems, Congress did not make the Sex Offender Registration and Notification Act (SORNA) retroactive, but it did authorize the US Attorney General to decide when and if that would be feasible.  In February 2007, the attorney general did so. Herman Gundy, who had been convicted of a sex offense in 2005 failed to register and was subsequently prosecuted.

With newly seated Justice Brett Kavanaugh recused, the Supreme Court in a 5-3 decision rejected Gundy’s argument that it was unconstitutional for Congress to allow the attorney general to decide when to apply the registration requirement to sex offenders convicted prior to enactment of SORNA.  Justice Elena Kagan wrote the opinion for the majority asserting that “... if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

Being more specific, Kagan pointed out that feasibility issues are frequently left to executive officials, citing as an example a statute authorizing the Secretary of Housing and Urban Development to “require to the greatest extent feasible, the employment of new and improved technologies, methods, and materials in housing construction under (HUD) programs.”

In a lengthy and sharply worded dissent Justice Neil Gorsuch claimed the SORNA gives “the nation’s chief prosecutor…the power to write his own criminal code governing the lives of a half-million citizens.” He was joined in his dissent by Chief Justice Roberts and Justice Clarence Thomas.  Although Justice Samuel Alito voted in support of the majority opinion, he indicated a willingness to revisit the question of congressional delegation of it legislative powers if the issue arises in another case, a prospect heightened by Kavanaugh’s apparent views.

The second June decision came in a case involving James Kisor, a Vietnam veteran suffering from post-traumatic-stress disorder. Kisor’s request for VA benefits had been rejected because of an interpretation by the Department of Veterans Affairs of its own regulations. His appeal to the US Circuit Court had been denied on the basis of a long standing deference doctrine which directs courts to defer to an agency’s reasonable reading of its own regulations. 

Again, the majority opinion was written by Justice Kagan, but this time it consisted of several parts. With regard to the basic question of Kisor’s request for benefits, it was unanimous that the case be returned to the circuit court for further proceedings with the inference that the lower court had given unwarranted deference to the VA’s interpretation of its regulations. But the deference doctrine itself barely survived by a 5-4 vote.

In her opinion Kagan argued that the Supreme Court had in the past made it clear the doctrine, known as the “Auer deference,” based on the Auer v. Robbins (1997) decision, has limits and should not apply in every scenario. She also added that the principle of stare decisis (precedents should not be overruled unless there was a good reason to do so) was relevant in this case, pointing out that overruling Auer would impact a long line of precedents. Justices Stephen Breyer, Ginsburg and Sotomayor joined all of Kagan’s opinion, while Chief Justice Roberts supported much of it in a concurring opinion.

Justice Gorsuch disagreed with the majority’s willingness to stand by the deference doctrine. In his concurring opinion, joined in full by Justice Clarence Thomas and in part by Justices Alito and Kavanaugh, he wrote, “it should come as no surprise that several members of this court, along with a great many lower court judges and members of the legal academy, have questioned Auer’s validity and pleaded with this court to reconsider it.”

An indication of the root of the dissenters’ concern was Gorsuch’s declaration, “The explosive growth of the administrative state over the last half-century has exacerbated Auer’s potential for mischief.” Obviously, Gorsuch and his colleagues see reining in the authority of government agencies as a means of restraining congressional legislative initiative.

The pending case heard in March addresses the structure of the Consumer Financial Protection Bureau, an independent agency set up under the Dodd-Frank Act in the aftermath of the Great Recession. Sen. Elizabeth Warren originated the idea while a professor at Harvard Law School. In its nine-year history the bureau has retrieved about $12 billion for consumers.

As has been true with most independent agencies, Congress intended to shield the bureau to some degree from politics. Generally, this has involved creating a commission of several members with staggered terms of more than four years to provide oversight of the agency in question. Commission members are nominated by the President with advice and consent of the Senate. The President can only remove commission members for cause, not political preference. The Federal Reserve, the Securities and Exchange Commission and Federal Communications Commission are among the many agencies that operate in this manner.

With CFPB, Congress assigned governance to a single administrator, appointed by the President with advice and consent of the Senate for a five-year term, removable only for cause. While Republicans and major financial institutions have argued this arrangement is an infringement of presidential authority, lower courts have upheld the agency’s structure, citing Supreme Court precedents.

The pending case, Seila Law v. CFPB, was brought by a California law firm under investigation for abusive telemarketing practices in its debt-relief business. Plaintiff’s attorneys are arguing that the bureau's structure unconstitutionally insulates it from the President’s control and should be shut down. Although the Trump administration has endorsed the investigation of Seila, the Solicitor General is not defending the CFPB design. This has required the Supreme Court to appoint for that purpose Paul Clement, a well-respected lawyer with considerable experience before the court.  

During the March hearing Clement used the example of the Federal Reserve to explain the intent of Congress in creating independent agencies, “…we don’t want the president to juice up interest rates right before a presidential election.” He also offered a more immediate example, observing that some “are trying to make a political football out of dealing with a pandemic disease. So maybe Congress decides…let’s have the head of the CDC (Center for Disease Control) be protected by for-cause removal because that’ll make sure people get good advice and it doesn’t become political.”

 

Based on what we know about the viewpoint of the right-wing bloc on the Supreme Court, Clement’s arguments may fall upon deaf ears. Justice Kavanaugh probably summarized their perspective, “The problem really reveals itself when a new president is stuck with a holdover CFPB director who may have ‘a wildly different conception of consumer financial protection.’”

Who knew that in a modern Western economy dependent upon consumer spending that there would be “wildly different conceptions of consumer financial protection.”

Since 1887, with the creation of the Interstate Commerce Commission, the federal government has relied more and more upon independent agencies to manage matters of national importance. Under laws passed by Congress these organizations have been charged with both regulation and enforcement in significant areas of public concern . If the Supreme Court imposes blanket prohibitions upon Congress in the exercise of its power to legislate through delegation, it will severely reduce the effectiveness and efficiency of our government and open the door to constant and capricious challenges to responsible governance.