Disenfranchising an Electorate: Using Legal Language on Referendums

Popular sovereignty, the ultimate sovereignty of a people as a whole, is typically exercised by an electorate at the ballot box. Such sovereignty is above that of governments (i.e., governmental sovereignty), which might come as a surprise given how little voters actually decide. Typically, the will of the people is limited to filling public offices by selecting among candidates or write-ins. In the last few decades of the twentieth century, California effectively expanded the power of popular sovereignty by adding a number of referendum questions to the ballots, but even those questions have not come close to covering the full spectrum of major policy issues, which are typically left to the office-holders: the agents of the People. Even though the popular sovereign (i.e., the direct will of the people) can make mistakes—such as requiring a 2/3 legislative majority to pass a tax increase in California—the expansion from merely filling public offices to actually making basic public policy decisions is from a democratic perspective a good thing. The key is to go broad enough that judgement rather than technical expertise or specialized knowledge is used. This effectively franchises at least the vast majority of an electorate as nearly everyone is capable of making a judgement among competing values, whereas a small percentage of people are highly educated in any given society—even in advanced industrial states. The problem, it seems to me, lies in how the policy questions on a ballot are written. In particular, they must be written in such a way that they are understandable to the typical voter. Writing a question, whether on policy, law, or a constitutional amendment, in legalize circumvents the expansion in popular sovereignty. Such an approach defies common sense itself, and yet it the Florida legislature did just that in 2012, placing the Florida electorate in a nearly-impossible position as the popular sovereign. Perhaps the legislators knew that the incomprehensible legalize would effectively safeguard their existing power.

The full essay is at "Florida Disenfranchised Its Electorate."

Misconceptions of the E.U. Budget

Could it be that at least some of the British voters who were in favor of secession from the E.U. held misconceptions of the federal budget? If so, perhaps the antagonism was unduly harsh in the referendum.  

The full essay is at "Misconceptions of the E.U. Budget."

Inconvenient Truths

When I was a post-doctoral student, I sat in on a course on German films during World War II. The instructor was an 80 year-old German man whose parents had been forced into sending him to a Hitler Youth camp. I asked him once whether he had seen Hitler in person, and, if so, did he look like how the documentaries have him pictured. Having the respect for knowledge that should be expected from a scholar, he told me that he had indeed seen Hitler in person. The brutal Nazi dictator was authentically smiling during his visit to the Hitler youth.  I was surprised, as I had been brought up with the image of the grizzled grins and terse glares.  To be sure, the victor’s history fits the horrendous crimes committed, but at the cost of objectivity, which any historian should value. The subjective historical portrayal and the German professor’s honest answer led me to wonder what Hitler was really like as a person. Even the epitaph of monster does not fit with the notion of the banality of evil visible at the Eichmann trial in 1961. Eichmann had been responsible for making the trains run on time to the concentration camps.

About a decade after my conversations with the German professor, I met a 92 year-old American veteran of World War II.  Did the American people know of the holocaust? I asked. Only after the Japanese attack on Pearl Harbor in Hawaii, he answered. Before the U.S. went to war, the European war was something far away. When the U.S. was at war in Europe and Asia, Jewish leaders in Europe asked President Roosevelt to bomb the train tracks that were carrying the cattle-cars to the ovens. Roosevelt, the veteran said, told the Jews that he didn’t have time for that. “Wow, that’s a story!” I said in astonishment. One of the veteran’s daughters asked him how he knew this. “It was common knowledge at the time,” he replied. I had not even known that the American public knew of the gas chambers before the liberation of the camps. Even if Roosevelt wanted to be focused on military objectives because achieving them would mean winning the war, that he felt he didn’t have time to thwart the Nazis from transporting human beings to ovens astonishes me. I asked the veteran if the very language, cattle-cars to ovens applied to human beings shocked Americans during the war. He replied that “surprised” is not the right word for it. He did not characterize how he and other Americans had taken the news, which I found interesting.

The full essay is at "Inconvenient Truths."

On the Unitary and Imperial American Presidency

In December 2009, Abdullah II, King of Jordon, dismissed the prime minister and replaced him with a palace aide and loyalist, dissolved Parliament, and postponed legislative elections for a year.   For all the defects of a representative democratic system, it is far superior to autocratic rule, especially by a dictator.   It is natural for people to resist preemption. “The nature of humans is they want democracy,” said Ali Dalain, an independent member of the Parliament that was dissolved. “One person cannot solve all problems and cannot make everyone happy, so people must share in determining their fate.”[1] These quotes are revealing from the standpoint of the American notions of the unitary executive and the imperial presidency.    

The full essay is at "The Unitary and Imperial U.S. Presidency."

1. Michael Slackman, "Jordan's King Remakes His Government," The New York Times, December 22, 2009.

Should Health Care Be a Right?

In the Spring of 2019, President Trump promised that a Republican alternative to "Obamacare" would soon be unveiled; the majority leader of the U.S. Senate, Mitch McConnell, quickly informed the president that the prospects of such legislation passing the Democratic-controlled U.S. House were zilch. This virtually guaranteed that health care would be play a salient role in the upcoming 2020 presidential race. The underlying question, I submit, has been whether health care ought to be a right, which the government would be obligated to ensure. Such a right would obviously not be one of those that hold government back (e.g., the right to liberty). Whether a right ensured by government or holding government back, the nature of a right is such that it is to be respected by others, whether individuals, organizations, or the state. Such respect, being an obligation, constrains those others. Hence, health care as a right has been controversial in the U.S. 

The full essay is at "Survival of the Fittest."

Dorian Gray: Evil or Immoral?

The Picture of Dorian Gray, a Gothic and philosophical novel written by Oscar Wilde, was first published in 1890. The first motion picture, taking the same title, came out in 1945. Relative to The Secret of Dorian Gray (1970), the initial adaptation of the book can seem quite restrained, or Victorian, even though the novel had been controversial in its day. The 1970 film is awash in the sexual revolution, and is thus also affected by its times. The next film adaptation, Dorian Gray (2009), goes back to a classy nineteenth-century Dorian. The emphasis is on sexual immorality, albeit different than in the sexual revolution in the next century. The film largely departs from the plethora of religious symbolism and language in the 1945 film, though unlike in the 1970 film, a spiritual realm is not presumed to be an antiquated notion. Instead, the 2009 film substitutes supernaturalism for religion, especially in the climax. 

The full essay is at "Dorian Gray."

Undermining the Dodd-Frank Act: An Incessant Desire for Profit

In the Dodd-Frank financial reform Act of 2010, financial firms in the U.S. are required to set aside higher reserves to cover losses on trades of securities, including those that “swap” the risk of default of a given security, such as bonds based on subprime mortgages. Almost immediately, the Wall Street bankers set about minimizing the new hindrance.  

The full essay is at "Undermining the Dodd-Frank Act."

Jack Lew at his confirmation hearing for U.S. Treasury Secretary. Lew had been the chief operating officer at units at Citibank.     NPR

On the Gravitational Pull of Clearinghouses in Congress after the Financial Crisis

Lest it be assumed that the Dodd-Frank financial-reform Act, which became law in 2010, two years after the financial crisis, would render it less probable that taxpayers would again be faced with having to bail-out financial institutions even without strings attached in order to keep the financial system intact and the American economy from collapsing, Gretchen Morgenson of The New York Times wrote two years after the Act's passage that “failing to confront the too-big-to-fail question is a serious oversight.”[1] For one thing, disproportionately increasing the amount of money that the biggest banks must hold against a rainy day once again neglects the possibility that every bank is having such a day on the same day and so none of the banks will loan to other banks (i.e., the commercial paper market). When a financial system itself is sick to the extent that it cannot stand, all the heavy dominoes may topple, one after another, even though each has more support. Secondly, widening the too-big-to-fail category enables more financial institutions to engage in risky bets because the expanded net could limit any eventual downside. Sure enough, Morgenson points out that the legislation “actually widened the federal safety net for big institutions. Under the law, eight more giants were granted the right to tap the Federal Reserve for funding when the next crisis hits.”[2] Those institutions, including the Chicago Mercantile Exchange, the Intercontinental Exchange, and the Options Clearing Corporation were even able to avoid the penalties for failure specified in the Act. The clearinghouses had successfully argued that even though only banks had been allowed to borrow from the Fed’s discount window, the clearinghouses are not financial institutions; rather, they are financial utilities. So, should they fail, they should not have to be “wound down” by regulators. This is essentially having it both ways and getting away with it. To explain this comfortable arrangement, we would need to look under the hood, so to speak, where I suspect we would find an exclusive world wherein vast private wealth is itself political power even apart from any attendant lobbying activity.

 The full essay is at "Clearinghouses in Congress."

1. Gretchen Morgenson, “One Safety Net That Needs to Shrink,” The New York Times, November 3, 2012.

U.S. Attorney General Barr's Decision on the Mueller Investigation of President Trump: On the Invisible Personal and Institutional Conflicts of Interest

On March 24, 2019, U.S. Attorney General William Barr sent to Congress his summary of Robert Mueller's report on whether President Donald Trump's 2016 campaign had colluded with the Russian government and whether the president had obstructed justice. According to Barr, Mueller had found no evidence of collusion. As for obstruction, Barr wrote that Mueller "did not draw a conclusion one way or the other as to whether the examined conduct constituted obstruction."[1] On this point, Mueller himself had written that 'while this report does not conclude that the president committed a crime, [the report] also does not exonerate him."[2] Mueller had laid out evidence and arguments on both sides of the question of obstruction, and Barr determined that the "evidence fell short of proving [that the president] illegally obstructed the Russia inquiry."[3] The New York Times went on to call this "an extra-ordinary outcome."[4] Barr did not detail his reasoning in deciding the matter of obstruction. According to the New York Times, he "appeared to be focusing on the question of whether investigators could prove that [President Trump] had 'corrupt intent' in instances where the available evidence about his motivations was ambiguous."[5] But in focusing on a lack of evidence that the Trump campaign reached any agreement with the Russian government on sabotaging the election, legal experts said," Barr "left out other reasons the president may have had for wanting to stymie a wide ranging investigation: It could uncover other crimes and embarrassing facts."[6] In other words, Barr's parameters may have been too narrow. The way Barr framed the contours for his decision might not have been an accident, given his personal conflict of interest. More important than this, I submit, is the continuing institutional conflict of interest facing the Justice Department in investigating its boss, the chief executive.

The full essay is at "Investigating Personal and Institutional Conflicts of Interest."

1. Eli Watkins, "Barr Authored Memo Last Year Ruling Out Obstruction of Justice," CNN.com, March 24, 22019.

2.Mark Mazzetti and Carol Benner, "Mueller Finds No Trump-Russia Conspiracy but Stops Short of Exonerating President on Obstruction," The New York Times, March 24, 2019.

3. Charlie Savage, Mark Mazzetti, and Katie Benner, "Barr's Move Ignites a Debate: Is He Impartial?" The New York Times, March 26, 2019.

4. Ibid.

5. Ibid.

6. Ibid.

McDonald’s Over-Reach: Blending a Restaurant and a Coffee Shop

In spite of essentially flat sales in the U.S. in February 2013 from the same month in 2012, McDonald’s CEO, Don Thompson, said he was confident that the people at the company had sufficient experience to “grow the business for the long term.” Even assuming that a business can be grown as if it were a geranium plant, the claim can be critiqued both in regard to the underlying assumption regarding “growth” and that of long-term viability. Fusing a restaurant with a coffee shop can be said to be an over-reach that had blended the company too much, at least at the store level.

The full essay is at "McDonald's in a Changing Environment."

Monetary and Fiscal Policy and Structural Reform: Each Had a Role to Play after the Financial Crisis

With fiscal policy hamstrung by public debt in both the E.U. and U.S., monetary policy was a major beneficiary of the financial crisis of 2008 and the ensuing state-debt crisis that stammered on at least until 2013 in Europe. Lest it be concluded that central bank policy had reached an unassailable peak of salvation, the expanded role actually made its limitations transparent, at least in financial circles.

The full essay is at "Post Financial Crisis Coordinated Action."

Weak Corporate Governance at UBS Amid a $2.3 Billion Trading Loss in 2011

UBS chief executive Oswald Gruebel resigned on September 24, 2011 over the $2.3 billion trading loss by one of the Swiss bank’s traders, Kweku Adoboli. Kaspar Villiger, UBS's president, said the board regretted Gruebel's decision but had decided to accept it. "Oswald Gruebel feels that it is his duty to assume responsibility for the recent unauthorized trading incident," Villiger was quoted as saying in the statement. "It is testimony to his uncompromising principles and integrity."[1] In presumably not pushing for the CEO’s resignation because of the magnitude in the lapse of risk management in the system, the bank’s board of directors did not take the initiative in holding the management accountable. Accordingly, shareholders have reason to be concerned about the protection of their owner’s equity, at least in terms of corporate governance providing accountability on the management. The culprit may be corporate governance itself, which as structured may proffer too much power to the CEO.

The full essay is at "Weak Governance at UBS."

1. “UBS CEO Oswald Gruebel Resigns Over Rogue Trading Loss,” The Huffington Post, September 24, 2011. 

Structural Reform and Economic Sustenance in European Austerity

Speaking at the World Economic Forum in Davos, Switzerland on January 25, 2013, Mario Draghi, president of the European Central Bank(ECB), said the bank’s program to buy the bonds of heavily indebted E.U. states had been “very helpful” in reducing the perception that the euro was on the verge of collapse. He also pointed to the structural reforms that heavily indebted states had enacted as “now bearing fruit.”[1] He urged those governments to continue to implement structural reforms so those states could take advantage of the ECB’s low interest rates and easy credit to banks. In short, the strategy of the ECB was to use monetary policy as leverage for long-term-oriented structural reforms at the state level. Political risk analysts listening to the central bank official likely came away with a more optimistic stance on the long term prospects for the E.U. economy.

The full essay is at "Structural Reform and Economic Sustenance."

 1. “Davos: ECB’s Draghi Says ‘Real’ Economy Still Stagnant,” Deutsche Welle, January 25, 2013.

                                                                                                       

Pruning Back an Ideological "Re-Definition" of Socialism

Should language lose its integrity for ideological purposes? On Fox News in the wake of the passage of Obamacare, Brit Hume and Newt Gingrich, a former Speaker of the U.S. House of Representatives, both (re)defined socialism as “government control of private property.” Their rendering falls short, however. According to the Random House Dictionary (via Dictionary.com), socialism is “a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole” (italics added). Whereas government regulation of privately-owned means of production and distribution involves some of the control being in the hands of the community as a whole through its government, socialism includes the vesting of both ownership and control with the government. 

The complete essay is at "Socialism Redefined."

Including Voter Judgments on Broad Policies in Elections: An Expansion of Active Popular Sovereignty

Days after the 2018 Congressional elections in the U.S., the Minority Leader and soon-to-be Speaker of the House of Representatives, Rep. Nancy Pelosi, declared, “Healthcare was on the ballot and healthcare won.”[1] As the new Democratic-controlled House worked on a budget the next Spring, Pelosi was still insisting that healthcare was what that election was about. Perhaps she based her statement on exit polls in which most voters claimed that they had voted chiefly the basis of candidate positions on healthcare. This does mean, however, that the voters voted on healthcare, for as only a choice of candidates could be made, the voters were left with inferring or even hoping that the favored candidate would act on, or at least stay with, his or her position on the issue. I contend that the next leap in the theory and practice of representative democracy could be to no longer keep an electorate, the popular sovereign, limited to selecting among candidates.

The full essay is at "Expanding What Voters Can Vote On."

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[1] Kimberly Leonard, “Nancy Pelosi: ‘Healthcare was on the ballot and healthcare won,” The Washington Examiner, November 7, 2018.