Trump’s ties and voter oversight

The past ten days have brought to surface a list of revelations about, and statements from, President-elect Donald Trump. These realities force Americans to inquire as to motivations of Trump and his staff in the Administration’s stance toward Russia. But more importantly, they force each of us to examine exactly how a large swath of voters allowed themselves to be swayed by foreign actors during the election itself.

To start, a briefing from leaders of US intelligence agencies and the release of an unclassified report found that Russian interference in the 2016 presidential election represented “a significant escalation in directness, level of activity, and scope of effort beyond previous election-related espionage.” Afterward, the Trump team begrudgingly admitted that Russia was behind the hacking of the Democratic National Committee and the Hillary Clinton campaign. Despite the continued and months-long stream of condemnations of the election interference from both sides of the political aisle, Trump himself seemingly never speaks ill of Russia or her president, Vladimir Putin. Notably, Putin does not appear on the New York Times’ running list of people or things Trump has insulted, while civil rights leader and Congressman John Lewis, General Colin Powell, Chief Justice John Roberts, Senator John McCain, NATO, the UN, and the Broadway musical Hamilton have all caught the President-elect’s ire. In fact, Trump often praises Putin, most recently for Russia’s response to increased US sanctions, perhaps due to Trump’s documented relationship with the man, which goes back to at least 2013.

Early last week Buzzfeed published an admittedly unsubstantiated report that Russia has substantial Kompromat on Trump: compromising material which includes evidence of legal, financial, or moral misdeeds for the purpose of blackmail, influence, or control. The material allegedly stems from Trump’s 2013 visit to Moscow during his Miss Universe pageant held just outside that city. Importantly, allegations in that report include a continuing relationship between Trump campaign officials and the Russian government. A Trump aide later confirmed that Trump's national security adviser, Michael Flynn, has been in frequent contact with Russia’s ambassador to the US in recent weeks. The FBI has since confirmed that Russia hacked the Republican National Committee during the election, as well, but did not leak whatever information was obtained.

Later in the week we learned that top US intelligence agencies expressed “high confidence” that Putin himself ordered electoral interference at the expense of Clinton, and that the CIA and FBI are investigating whether Russia financially contributed to the Trump campaign. Despite this news, Trump later expressed the possibility that he may remove sanctions the US has placed on Russia in 2014 after the annexation of Crimea and extended after the meddling in the 2016 election. Further, Trump advisers have stated that the President-elect’s first foreign policy trip will be to Iceland to meet with Putin within weeks of his Inauguration. Trump has still not released his tax returns, but we know he has continuously tried to do business in Russia in the past.

In sum, there is reason to believe that Russian officials, acting on the orders of Vladimir Putin, may have used their ability to blackmail Trump, both with the material in the dossier published by Buzzfeed and any information obtained from hacking the RNC, as leverage to gain influence with his campaign, which may include financial contributions, in order to undermine the Clinton campaign and convince the American people to elect Trump. As further evidence, since his victory, Trump has expressed his intention to re-evaluate US sanctions on Russia, his top aides continue frequent contact with Russian officials, and once sworn in he plans on immediately meeting Putin in person.

Under relevant federal law, an organization or individual, which agrees or consents to be indirectly supervised, directed, financed, or subsidized in whole or in major part by a foreign government or political party is an agent of a foreign principal, and must register as such with the Department of Justice. Further, public officials who act as agents of a foreign principal would be in violation of 18 US 219 and are subject to fines or imprisonment.

Whether the President-elect or any or his organizations, appointments, or advisors meet the legal standard to qualify as agents of a foreign principal requires more evidence beyond what is publicly available. The law requires more than a mere confluence of interests between foreign and domestic actors, but actual direction or supervision of foreign actors over domestic actors. The possession of blackmail material would be key to establishing this link. However, our intelligence agencies may plausibly corroborate the existing allegations and may yet uncover further connections between Trump, his staff, and Russia. This reality brings America to the three following questions:

First, how did we allow so many of our individual political judgments to be influenced by a foreign power? No public information implies that Russia infiltrated US election software. Instead, in November only Americans voted, but too many of us were insufficiently critical in both how we discerned factual articles from inaccurate or purposely misleading ones and how we weighed the value of the factual information, which was available. As much as we may point fingers at Trump or Putin, we too must look inward for both blame and solutions. Russia and other adversarial actors may be emboldened by the results of the 2016 election interference and seek further influence in 2020 and beyond. We the people must change if the results are to, as well.

Second, how do we convince Speaker Paul Ryan and Republicans on the Hill to use the threat of impeachment to obtain sufficient financial and other information from Trump and his staff for a proper investigation into potential coordination with Moscow? Luckily Trump’s affinity toward Russia and propensity to insult even allies have made him unpopular among his own party leaders. Nonetheless, broad and sustained political mobilization will be required to convince Congressional Republicans that impeaching a Republican president is politically advantageous for them individually and as a party.

Third, how do we prevent foreign powers from influencing our elections again? Neither our Constitution nor our laws can prevent a sufficiently large number of Americans from making gravely poor decisions. However, strengthened required financial disclosures for candidates and appointments or other transparency and ethics legislation may constrain our future potential lapses in judgment. 

Irrespective of any potential forthcoming revelations or allegations regarding relationships between an adversarial country and the man who will be our president before week’s end, our country has already ventured into uncharted waters, guided by a minority of voters who allowed themselves to be steered by a foreign power. Is the American ship seaworthy? How we act now, with Republican leaders at the helm, can only answer this question. 

The “Citizens for Constitutional Freedom” Claim to Defend the Constitution. Here’s Why They’re Wrong.

Three days ago, a group of armed individuals took occupation of the United States Fish and Wildlife Service's Malheur National Wildlife Refuge, a federal building in remote Oregon. They did so on behalf of fellow ranchers who recently turned themselves in for setting fire to federal land. In both traditional and social media, a national debate has emerged as to how the government should address this situation, and whether those involved are protesters, occupiers, terrorists, insurgents, or a militia. While these are important discussions, at the heart of the matter is an invocation of the U.S. Constitution which has largely been overlooked.

Cliven Bundy, one of the individuals, has argued, “The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management.  These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power.” Thus, Bundy and the others view the federal government’s ownership of the land as unconstitutional. As such, they have now labeled themselves Citizens for Constitutional Freedom.

The relevant clause in Article IV of the Constitution that Bundy referenced reads, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” Bundy proffered no further explanation as to why the refuge does not fall under this language. Regardless, the acquisition of control of federal land within states has long been settled in Supreme Court cases such as Hutchings v. Low, 82 US 77 (1872) (affirming the constitutionality of Yosemite National Park) and Alabama v. Texas, 347 US 272 (1954) (“The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.”). Supreme Court decisions are law, which only can be overturned by later Supreme Court rulings or constitutional amendments, not by armed occupation.

As such, allow me to suggest an alternative label for the “Citizens for Constitutional Freedom”: criminals. Under 25 CFR 11.411 a person is liable for criminal trespass if he or she “knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure.” The refuge has now been closed, and they remain in the building. Further, they have the aggravating circumstance of possessing firearms within a federal building while committing a crime, as proscribed by 18 U.S.C. §930(b), which could land them up to five years in prison.

In the United States, processes and institutions exist for the redress of grievances. Government structures are of course not always well-functioning, and civil disobedience is a route other Americans have taken in order to initiate structural changes. However, civil disobedience does not come at the end of a gun barrel. It comes willing to accept the punishment and actions of the state as a means to show onlookers the injustice of the law. By being armed, and declaring a willingness “to kill and be killed”, these individuals present a threat to any federal authority who might arrive to lawfully remove the group from the premises.

Ensuring governmental authority remains limited is an important part of American citizenship, but the “Citizens for Constitutional Freedom” would gain more sympathy if they had a credible claim. They treat the Constitution as a legal code, expecting the document to anticipate all governmental actions in 4,543 words. However, John Marshall wrote in McCulloch v. Maryland 17 US 316 (1819) that a Constitution contains the “great outlines” of a legal system. So when we read the document looking for absolutist interpretations, “we must never forget that it is a Constitution we are expounding.”

The Constitution is not a static document, but comes to us through centuries of adjudication and interpretation. Ignoring the text and the path it has taken since 1787 renders one’s interpretation and analysis incomplete. Our political discourse would benefit greatly from more detailed and nuanced discussions around both the strengths and flaws of our foundational legal document. Committing armed trespass while making vague constitutional references injects no such detail or nuance, and only further obfuscates how the Constitution influences our interactions with each other and our government. 

You say you want a revolution. Well you know, that’s not gonna happen soon.

There’s been a lot of outrage over the recent revelations of NSA surveillance of US citizens with no reasonable suspicion of any particular individual of any particular wrongdoing. And there should be. In 2008 Obama presented himself as the anti-Bush, but between Guantanamo, drones, and domestic surveillance, he’s possibly more Bush than Bush!

While some are grappling with whether the program is legal, I view that as simply not the point. That’s not to say that assessing the legality of governmental action isn’t important, of course. But there are at least three standards by which a government action can be judged: legal, Constitution, and acceptable. Regardless of whether the program is legal, it’s simply not acceptable—and I’m very certain a majority of Americans would agree with my poorly articulated argument here. (I’ll leave the Constitutional argument for when I’m not studying for the bar exam and have sufficient time to go through the relevant case law in order to make a reasoned analysis. But our Colbert gut tells us this doesn’t feel Constitutional within the spirit of the 4^th Amendment.)

I’d venture to guess that there are several areas of dissatisfaction a majority of Americans have with the federal government, which has been unresponsive to public opinion. But this grievance, I think, crosses party lines most easily. Because of the gradual decline of civil liberties since the passage of the USA PATRIOT Act—which has continued regardless of the partisanship of either the legislative or executive branches—many want  drastic change in our federal government’s power to unilaterally collect information on citizens without individual suspicion. Such change can either occur inside the system or outside the system. The problem is that to work within the system, we must repeal all these laws and court decisions. This would need to be an act of Congress to be either signed by the president or popular enough to override a veto. (Technically a Constitutional amendment is available, but that is harder still). But we’ve had the problem, best exemplified by Obama himself, of electing people who say they’re against such programs, but vote for them anyway.  Namely, any libertarian, progressive, or small-government conservative should not be supportive of such programs on ideological grounds. And yet  here we are.

So what’s the other option? A full-scale change of the status quo—that is to say, work from ‘outside the system’. Yes, some voices have asked about a new American Revolution or an American Spring. For better or worse, that’s not going to happen anytime soon. The governmental transitions academic literature tell us that GDP-per-capita is one of most strongly correlated variables to whether transitions actually occur. That is to say that wealth is a factor in whether full-scale revolt can actually lead to change. Why? Simply because extra-systemic change, especially full-scale revolt, questions the whole system itself. We know that when you've got nothing, you've got nothing to lose, but most of us have something, and so we feel we have something to lose in the event of real revolution. Sure, if you’re unemployed, have broken spirits, or have more debt than you can ever hope to repay, you’re fixin’ for  a revolution—because you might feel you have more to gain from a possible victory than you have  to lose  from either a victory  or defeat. But when you own property, or have a family to feed or have a pension, often that status quo protects you more than exposes you to risk. This is the force of moderation. The idea of being jailed for a short time as a political activist might be romantic to those with few responsibilities, but for many that means no food on the table for their children. 

As such, only when a plurality of Americans feels there's more to gain in overthrowing the status quo than to lose from the attempt, will something extra-systemic actually happen. We’re a far road from Tahrir Square. Evidence of this assertion being true might be as recent as the Tea Party and #OccupyWallSt movements. While there are many other important variables I won’t consider here, note that the Tea Party worked within the structures of governance, whereas #OccupyWallSt questioned them to the core. One was strategic, the other radical. Which has had more effect on American politics, I think, is clear. (Pssst! The Tea Party.)

The tragedy, of course, is that we have been jaded by the idea of change from within. That was the actual mantra of Obama, and now he’s the exact thing we want to change. 

The Future of the Authorization of the Use of Force

This post earned an honorable mention in the Center for International Policy's Rethinking National Security blog contest. It will discuss the authorization of the use  of U.S. force beyond our nation's borders. While this issue doesn't often explicitly grab headlines, it is at the heart of many power struggles, political debates, and legal battles in Washington.

The U.S. Constitution first established a balance of power in this area. Art. I, Sec. 8 states, “The Congress shall have Power... To declare War...” This statement is supplemented with the later statement in Art. II, Sec. 2 that, “The President shall be Commander in Chief of the Army and Navy of the United States...” which is supported by the president’s authority to take care that the laws of the United States are faithfully executed. These lines are where power struggles between Congress and the President originate over the authority to use military force. It is clear that at a minimum the majority of the Constitutional Framers wanted to ensure that no individual could bring the United States to war.

However, history and circumstance have given a broad mandate of power with respect to foreign relations to the president; Congress began to become powerless in the realm of the external use of US force. During the Vietnam War public opinion ran against the foreign affairs preferences of the executive. This led to Congress passing the War Powers Resolution in 1973. This legislation requires the president to “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Moreover, the president must notify Congress with the details of military action within 48 hours of the commencement of hostilities. Hostilities cannot last longer than sixty days without express consent of Congress, with a possible extension of thirty more days. The intent of this legislation was to require Congressional approval to military actions abroad where large numbers of American forces are in harm’s way.

This background shows a historical movement away from the formally declared ‘perfect wars’ of the past between states which existed in a dichotomous paradigm of foreign relations: war or peace. The reality of modern warfare is now moving toward a more subtle paradigm, which doesn’t fit neatly into categories of war or peace, but instead creates a continuum from total war to total peace, and which often involves non-state actors. The most recent large-scale U.S. military actions have been executed pursuant to specific enabling Authorizations for the Use of Military Force (AUMFs). However, many smaller actions have no explicit Congressional authorization. For example, the American involvement in the N.A.T.O.-led military intervention in Libya in 2011 did not result from any Congressional action. Legitimate arguments have been made regarding not only the Constitutionality of such an action, but also the wisdom of the unilateral authorization of the use of force abroad by one branch of the government.

This modern patchwork approach of legislation, utilizing the War Powers Resolution, various Court holdings, and AUMFs, does not offer predictable guidelines for any of the branches of government for creating policy, determining action possibilities, or judging either policy or action. At present the use of force is no longer a property of war but a tool of foreign policy. And in the post-9/11 environment of a desperate need for security, the executive branch has been given all the power it could desire in the realm of military action and national security.

As the present AUMFs fade into history, America continues to face challenges. Questions of the use drones, the use of force toward new terrorist organizations, humanitarian interventions in conflicts such as the one present in Syria, and resource protection in the face of global climate change will dominate the future of U.S. foreign policy and military action. All of these instances undoubtedly include the use of force, but fall short of formally declared war. However, the grand structures of law—the U.S. Constitution, The Hague Conventions, and the UN Charter—continue to only recognize the black and white dichotomy between war and non-war which has not been relevant since WWII. The problem that has needed to be solved for almost fifty years now is that there needs to be a comprehensive overhaul of how we use force beyond our borders. These challenges would be best addressed by a uniform and informed national security policy. Such a uniform policy must be created to maintain citizen oversight over governmental action while continuing to protect our nation from the evolving threats of the future.

A categorical policy of the use of force should include measurable variables such as: theatre, resources, time, possible ‘collateral damage’, and mission. Different stages of force application would have different requirements within each category—with perhaps ‘war’ having the most flexible standards. While writing a law is above my job description and pay grade as a law student, the lowest category  could be something like this: Category I: 1 country involved (must go to Congress to expand), no more than 1,000 US troops mobilized or $100 million used, completed within 3 months, no congressional advice or consent required to begin. As I have no military experience I fully recognize that these numeric limitations may have little bearing on reality, but I’m merely trying to illustrate the concept. The last category would just be war, where a full Congressional vote is needed. The WPR has a similar idea, but has too few options and is wholly too vague. At times law must be vague to allow flexibility, but I feel the past fifty years of foreign relations shows that flexibility has become too great to allow for predictability or constitutionally required consent of both branches.

While of course this is possibly unconstitutional, the Constitution specifically erects shared powers of war and war making. This is merely updating that sharing. In this context it remains important to understand the values and reasoning behind our Constitutional system: the president must have the ability to act quickly when needed, and Congress must agree to large-scale actions on behalf of the American people and to consent to the use of their money. Unfortunately law and policy change like a punctuated equilibrium—with very few punctuations. Moreover, Americans are generally afraid of drastic policy change, and thus won’t demand wholesale reform in these areas. This is partly why the Constitution has been amended so few times. However, this is a deeply important issue in both constitutional law and national security policy. It is my hope that the conversation on this topic continues to evolve. 

Are Obama’s Drones Coming For Americans?

This post was written for PolicyMic and can be found here.

Earlier this week, NBC News released a leaked Justice Department white paper which makes a legal case for drone strikes on Americans. Organizations such as the American Civil Liberties Union and the Center for Constitutional Rights have since denounced the document.

The white paper itself is 16 pages of unsurprising legal argumentation, echoing the reasoning that Obama administration lawyers, such as Eric Holder and Harold Koh, have been putting forth for years. Basically, it is a legal memo which says that the U.S. government can kill a U.S. citizen in a foreign country if:

1) the person is a senior leader of Al-Qaeda or an associated force,

2) an informed, high-level official of the U.S. government has determined that the person poses an imminent threat of violent attack against the U.S.,

3) capturing the person is continuously infeasible, and

4) the operation to kill the person is conducted consistent with applicable laws of war.

These words bring forth obvious and important questions: who qualifies as a “high-level official,” what constitutes an imminent threat, and at any stage is another branch of government involved?

While these questions remain unanswered, the memo mentions the usual suspects of national security law: the Fifth Amendment of the U.S. Constitution, the 2001 Authorization for the Use of Military Force (AUMF), Common Article 3 of the Geneva Conventions, Hamdi v. Rumsfeld, Mathews v. Eldridge, Ex Parte Quirin, etc. Thus, the arguments are not legally thin and are not wholly unfounded — which is perhaps most worrisome part of the memo.

The expanse of executive power in the field of national security can be traced back to Abraham Lincoln. And yet neither Bush nor Obama have shut down domestic newspapers (as Lincoln did) nor placed thousands of Americans in concentration camps based on no evidence whatsoever (as FDR did). However, one could reasonably argue that America has witnessed a new period of executive power in national security law since the terrorist attacks of September 11, 2001.

The past two administrations — with due credit given to the generally complicit Congress and Supreme Court — have written executive orders, pushed through legislation, and successfully argued legal cases which has created an extensive body of national security law. At times, this is partially due to practicality (as you cannot have 100 senators conducting a war) and partially due to constitutional law (the president is the commander in chief). But the result is a new legal regime which is frighteningly deferential to the judgment and sole power of the executive branch.

While I don’t think Obama will send drones into U.S. airspace or to attack vacationing Americans abroad, I feel the legal determination presented in this white paper has gone far enough to threaten the constitutional protections of due process of U.S. citizens. Remember that no court convicted U.S. citizenAnwar al-Aulaqi of any crime; he had no opportunity to appeal the predator drones which eventually took his life while he was in Yemen.

As a country of laws, we must find a way to protect our liberties without giving them away in the process. 

GOP Vote Rigging 2013: Why the Republican Plan to Gerrymander the Electoral College Could Destroy Democracy

This is a post I wrote about electoral reform in the U.S. for PolicyMic which can be found here.

Electoral reform has crept into the fore of American politics again, as President Obama told the nation in his recent second inaugural address; "our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote." This statement was in reference to various changes in voting laws made and proposed throughout the country, primarily by Republicans, in preparation for Election Day back in November 2012.

Now that 2012 is over, about a week ago Republicans got started working on changes for 2016.

While both parties engage in shameless gerrymandering, Republicans have generally pursued two extra forms of electoral changes. First, they have sought to disenfranchise populations which reliably vote Democratic (minorities, college students, etc) by making voting requirements increasing and often unreasonably burdensome. Second, they have recently begun seeking to change the way states which often lean Democratic in president elections award their Electoral College votes.

Both types of changes present serious concerns to democracy. The first should be obvious — systematically creating disproportionate burdens on portions of the citizenry is inherently anti-democratic. On this point, former Secretary of State Colin Powell (R) recently stated, "the Republican Party should be a party that says, 'we want everybody to vote,' and make it easier for people to vote and give them a reason to vote for the party, and not to find ways to keep them from voting at all."

The second tactic — the change in the way individual states award Electoral College votes — is a bit subtler. At present, each state decides how to award their Electoral College votes. All states, save for the small Nebraska and Maine, presently engage in a "winner-take-all" system. Those two states award their vote by congressional district — and this is 'reform' being sought currently by Republicans across the country. While this may sound benign enough, the consequences could be deeply troubling. If Republicans in states like Virginia, California, or New York succeed — states that have gone blue in the national elections but have a lot of red in their legislatures — those states would also distribute their electoral votes by congressional district. What's the desired result? When a Republican wins a "red" state, the candidate would get all the votes. But when a Democrat wins one of these "blue" states, the candidate would only get a portion of the state's vote, leaving the Democrat to a sizeable disadvantage nationally.

While I have written elsewhere about the problems with the current system, Columbia University statistics and political science professor Andrew Gelman writes of the 2012 election, "Romney needed about 50.5% of the national two-party vote to have had a 50/50 chance of winning in the Electoral College." He notes that this is certainly a bias that should be fixed. However, Professor Gelman continues, "in contrast, the bias that would ensue if the electoral vote were conducted via congressional districts — that would be huge."

Electoral reform is often a dry, complicated subject. But make no mistake about its importance. Elections are the very processes by which We The People express our views, and as such require more attention from our generation. While our national (and many state) election laws are antiquated and in need of real reform, we must be vigilant of the consequences of those reforms. Concerns of fairness, accuracy and access should characterize electoral reform, not partisan maneuvering. That might smack of naiveté and idealism, but maybe it has to — our democracy depends on it. 

Small Nation, Big Questions: Bahrain After the Arab Spring

This paper about the background and future of the ongoing tensions in Bahrain can be found here.


Abstract:      

This paper will discuss the political and social climate in Bahrain one year after the Arab Spring came to the country on February 14, 2011. The paper is divided into three main parts in order to give background and context. First, the paper will discuss the various iterations of inequality in Bahrain. Second, the governmental and international responses to the 2011 unrest and government crackdown on protests will be discussed. Lastly, a discussion will intend to tie the themes running throughout the paper together and discuss the future of Bahrain.

Assault Weapons Ban: Democrats Need Better Messaging to Pass the Bill

This post about messaging and issue framing with respect to gun control can be found at PolicyMic.

I feel that there are three ways to view policy: what is objectively right or wrong, what is legally or structurally possible, and what is in line with public opinion or the perception of other relevant actors in the system of governance. The first, then, is philosophy, the second is law, and the third is politics.

This post will only concern politics, which Democrats generally haven’t done well at the national level since Bill Clinton left the presidency. However, right now should be a Democratic golden era.

The Democrats recently affirmed their control over the presidency and the Senate. The House is a bit more difficult for Democrats, as gerrymandering has resulted in the Democrats needing over 7% more votes than the Republicans nationally in order to control the House.

The nation’s changing views on gay marriage benefits the Democrats and the nation’s changing demographics looks to do the same, too. Issues like immigration reform and the DREAM Act have begun to push a majority of Latinos into the Democratic camp, shown by Obama’s win of the Latino vote this past fall. Even the fiscal cliff — in the economic realm of policy where Republicans are most often trusted — has gone the way of the Democrats, as far as politics is concerned. That’s because a majority of Americansblame the Republicans for the mess in the first place. This is of course reminiscent of the 1995 government shutdown, which was ultimately also blamed on the Republicans by the American people.

In theory, Democrats have also been dealt an easy hand on gun control. The recent tragedies of gun violence have led to both knee-jerk reactions and honest reflection on the legal status of guns in our country. Real politics is insensitive and dirty and so the debate has shifted in favor of those arguing for gun control. Politics is about perception, so in this post, the actual content of Senator Feinstein’s Assault Weapons Ban is of little import — just as the content of, say, the USA PATRIOT Act was not important at the time of passage. In politics, what’s only important is what the American people think the law stands for. We’ll let the lawyers and philosophers decide what’s right and wrong or what can or cannot be done.

What the Democrats must do is convince the American people that this piece of legislation both protects their children from future gun violence while allowing responsible gun owners to continue to have their Second Amendment rights. Their first problem is the name used in the media. The "PATRIOT Act" is positive and affirming. The "Assault Weapons Ban" is negative and brings forth images of Pelosi and Feinstein taking guns away from people. However, since it uses the term "Assault Weapon," it can succeed if framed properly.

Congressional Democrats better read PolicyMic because here are their keys to political victory: only say two phrases when discussing either this piece of legislation or gun control in general. "We want to protect the American people and our children from gun violence," and "We support the Second Amendment rights of responsible gun owners." That’s it.

This debate is the Democrat’s to lose, and complicating the message will only make the party look divided and unsure of where it stands. The Democratic Party doesn’t need to convince the National Rifle Association about gun control, only those on the fence or undecided about the issue. Those individuals can give the Democrats the political clout on this important issue. 

Sandy Hook Shooting Asks Deeper Questions Than Gun Control

This post on conceptions of security and liberty can be found at PolicyMic.

First, my thoughts are with those who lost loved ones yesterday in Connecticut. No words I write should be construed as to detract from the enormous pain these families must bear. I also wish to post to not be thought of as 'politicizing the issue,' as I hope only to raise relevant questions.

In the wake of 9/11, many Americans felt understandably vulnerable. One solution was presented in the USA PATRIOT Act and governmental actions of domestic surveillance. Few progressive voices (very few in Congress) decried this legislation in particular as eroding fundamental rights in favor of a raised sense of security. The right of privacy, they argued, can be inferred in the Fourth Amendment. Over the next decade progressive proudly proclaimed that 'those who would sacrifice liberty for security deserve neither.' The conservative response was that without life, liberty itself is useless, and that the 'smoking gun' of another terrorist attack would be in the form of a mushroom cloud.

The security argument prevailed over the liberty argument here.

In the wake of the various shootings across the country this past summer, many Americans feel understandably vulnerable. One solution presented by a few progressive (very few in Congress) is to increase restrictions on gun ownership, as most of the guns used were legally purchased. The right to bear arms, conservatives have countered, is explicitly mentioned in the Second Amendment. Conservatives might further contend that 'those who would sacrifice liberty for security deserve neither.' Progressives might respond that the 'smoking gun' but be another mass shooting of innocent Americans.

I am not trying to suggest that these situations are perfectly analogous. I am only hoping to draw out that they both boil down to arguments of liberty and security. How one sees the issue beyond that may be a product of political leanings, emotional bias, or legitimate fundamental differences in the cases presented. The dialogue we have as a society should not be narrowly construed as gun rights or national security, but a deeper question of what are our fundamental rights and under what circumstances, if any, is it acceptable to derogate from them.

In Plato’s Apology Socrates shows us that we must remain humble. As such I don’t propose that I’m wise enough to know any answers. I can only ask the questions.

May peace be upon you and your family.

The Most Interesting Statistics and Points We Learned From Election 2012

This post was written for PolicyMic.com and can be found here.

As the election-related coverage dies down, what are the notable take-aways from election 2012? What trends, whether they be in the electoral process, voter turnout and campaigning, or voting technology and media, should we observe? Many signs point to the fact that more and more, politics is becoming a numbers game.

Here are five facts about the election you might have overlooked amidst all the punditry and politics.

1) The past three presidents (Clinton, Bush, and Obama) have all won two elections each.

The last time this happened were presidents Jefferson, Madison, and Monroe. Is this just an isolated occurrence, or an indication of an increased incumbency advantage for the president? Also noteworthy in this election is that little changed in the House or Senate with respect to balance of power. Does this foreshadow an increased incumbency advantage in Congress, too?

2) This race cost about $6 billion, a $700 million increase from 2008.

Beyond the narrow questions of Citizens United, a broad national discussion must be had regarding possible legal efforts toward capping campaign spending. Despite the exorbitant amounts of money, the candidates only campaigned in 10 states. We can share a sigh of relief that America didn’t experience another Florida circa 2000, but we need to have a serious discussion about our electoral system. It’s a horse-and-buggy system for an internet age.

3) The Obama campaign circa 2008 used innovative tools to identify and target potential voters, as it likely did in 2012.

Speaking of the internet, in 2008 the Obama campaign was able to collect vital information on thousands of potential voters, donors, and volunteers through complex, ground-breaking technology. The campaign was able to accurately identify how different groups of people communicated, being able to literally draw lines on the map and message groups specifically both on the internet and on foot. The campaign knew exactly how much money to spend in any given area and to what end that expenditure would lead. There’s no reason to think this year’s campaign was any less sophisticated.

4) On the prediction side, Nate Silver FiveThirtyEight.com and the New York Times missed only one state in 2008 and predicted each state accurately in 2012.

While I don't mean to suggest that Silver's methods are flawless, I do think that the accuracy with which we has been able to understand the past two elections has been impressive. The prospect that our preferences are predictable given certain inputs is important. Politics has been de-mystifying for decades now, and I think the past decade has seen rapid improvement in understand how we work. Politics is indeed becoming a science, not an art.

5) Our better technology and understanding of elections are wonderful.

They allows us to fundamentally understand how we as humans work in society — what drives us, what motivates us, what makes us change our  minds or dig in our heals. While we must remain humble and understand how much we don’t know, technology is improving our ability to understand humankind as the political animal that we are. What was above the doorway to the Oracle of Delphi? Know Thyself.

But what is occurring is that we are failing to change our laws to stay up to date with current realities and understandings. Our Constitutional system is designed to allow for patchwork problem-solving — lest we act too brashly. But this allows law to lag behind reality, which at times becomes problematic. The U.S. Constitution (and our election laws generally) is not a sacred. It was meant to be changed and altered.

In these endeavors, let us be measured, but let us be bold.

The Social Contract Revisited

Hello! By using America’s services, protections and opportunities, you agree to the following rights and obligations, and any policies, laws or amendments thereto that may be agreed upon through explicit legal processes. Provisions are made for updates in the future, and you will be able to find the most current version of this agreement in state and federal law.

Do you remember seeing that language at birth? No? What about at 18 years old, the age of adulthood in the US? No? That’s odd…

What is a contract?

Contracts wasn’t my favorite class in law school, to be honest. I claim no authority in the field. But a contract is really just the creation of one or more legal obligations between parties.

A common mistake is to assume that contracts require explicit consent. All product ‘terms and conditions’ are forms of contracts, and simply by using the product are you considered to assent to such terms and conditions. We all probably make hundreds of contracts each day. For example, let’s say you sit down at a buffet, the waitress brings you water, and then you begin to fill you plate. A bloated hour later you are full. How would it go over if you simply strolled out of the establishment without paying? Probably not well. A contract was formed through your actions and the tacit understanding that an exchange would occur: food for cash. You didn’t sign anything and the waitress didn’t make sure you explicitly understood that monetary compensation would be expected when you finally tapped-out.

In theory, the law would step in and require you to pay for the buffet if such a suit were brought to court. Why? Because you gained a benefit, conferred by another, without offering compensation in a circumstance when compensation was reasonably expected. In a term of art, you were unjustly enriched.

What is a state?

A state is a legal structure which has a population and a monopoly on the legitimate use of force within its territory. Why would anyone cede the ability to unquestioningly use force to some legal structure? Let’s ask the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

So people would theoretically enter into a state to secure life and liberty. And the state claims only power which comes from the people within it. That’s fine and dandy, but if a body is given power, it would likely abuse it in some way, wouldn’t it? It might even go so far as to disregard its original purpose. What do we do when this happens?

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So when a government destroys liberty instead of securing it, the people have the right to change it or get rid of it all together. That unrelated concept of a contract is beginning to sounds familiar; rights, obligations, and remedies for breaches. But how do we know when a breach occurs, when to oust the state?

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

This is really just a recommendation and then a warning: Don't get rid of your government for stupid reasons, but to be honest people have a predisposition to tolerate a government that sucks rather than to get off the couch and change it.

OK, this state thing sounds like a contract, but I didn’t agree to it!

Oh, you did—you just don’t know it yet.

Just like at the buffet, a contract was formed through your actions and the tacit understanding that an exchange would occur. What actions? Voting, paying taxes, or benefitting from services paid for by taxes, etc. all indicate a use of the service provided for in the contract and tacit consent of the contract itself. By partaking in the state’s services, protections and opportunities you have been enriched at the cost of the other parties in the contract. It’s a quid pro quo, a reciprocating duty: you must uphold you end of the bargain. Elizabeth Warren put it nicely (paraphrased):

You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea? Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

If you don’t like this contract, there are of course ways out. Otherwise, it would be coercive! First, the Declaration of Independence notes, supra, when you have the right to destroy the whole contract. Second, the Constitution explains the processes for changing the specific terms while maintaining the contact generally. Third, you can stop benefitting from the contract, and thus your reciprocal obligations would no longer be required. Yes, I’m suggesting moving out of the country.

Note: The Westphalian state/social contract paradigm has shifted since the time of the Declaration of Independence due to the philosophy embodied in the Responsibility to Protect. Previously the contractual relationship was only the business of the state and the people within its territory. But now the UN has asserted the right to be involved in this relationship. This is quite new, but we have seen a growing trend of humanitarian and military interventions in situations which ordinarily would have been viewed as wholly domestic issues. 

Some problems with social contract theory

First, no person has a choice as to what political system into which that person is born. Individuals become beneficiaries (or victims) of state probably immediately. Thus affirmative action must be taken to change the terms or change contracts. But how would we remedy this? The choices are limited: anarchy, governance with no claims of the consent of the governed, or to create a stateless land of wild children, who upon a certain age would be required to choose a state to enter. Antarctica is a bit too cold this time of year for that, I think.

Second, there are opportunity costs to leaving a given territory. Even if someone studied all the social contracts out there, and picked their favorite one, there are costs and hurdles to getting there. This is especially true for the economically disadvantaged, who are more ‘stuck’ with a state in which they often have decreasing voice. But relocation is pretty common. If nothing else, history is the story of human migration. If you’re an American, unless you're full Native or fully descended from those brought here unwillingly, your ancestors made this exact choice.

Third, at times it is effectively contract of adhesion. There are so many parties to the contract that any change requires a large number of parties to agree or any change. Each individual is only 1 in over 300,000,000 parties, and like most contracts, you can’t unilaterally change its terms.

Fourth, one might argue that a contract without explicit consent is in itself presumptuous or immoral. There is some ground here, but that would solve nothing. For each contract we presently enter unknowingly, there are almost just as many that we simply click through or sign on because they are too long or we aren’t interested. The social contract is no different.

There are probably others, too…

Thoughts

Even if you view the social contract as a noble lie, it at least serves as a useful understanding of why it is deplorable for individuals to choose to ignore the opportunities and advantages that have been provided to them with taxpayer money and try at every corner to get out of any reciprocating obligation.

I understand, and am sympathetic to, disagreeing with almost everything that a government does and feeling that government has not upheld the values in the founding documents. I often admire movements like the Tea Party and Occupy because they are actively trying to change the contract for those very reasons. Alternatively, with the services and opportunities provided in other countries, I completely understand leaving the US for greener pastures.

But it is wholly unfair to continue to reap benefits provided through government services, then act as if you don’t—only to make yourself feel justified in trying to not pay your fair share back into the system. Don’t think what is presently asked is fair? You can work to change that, too—but keep in mind the costs of what you have gained a la the Warren quote above. While many states go so far as to require periods of national service, all I ask from Americans is to recognize benefits derived, to not be so bitter about reciprocating, and to please work to change the system for the better, should you choose to remain.

The current electoral and political system in the US is approaching, if not already in, a state of complete dysfunction. That is not to say it is irreparable, of course. But what we need, more than ever, is a citizenry who will roll up their sleeves and invest time and money into getting America back on course by either fixing our current institutions or abandoning them for wholly new ones. If you would rather leave, that’s fine. But we have neither the time nor the inclination to deal with individuals who wish to cheat the system by gaining from its outputs and yet have no desire or intent to pay back into the system their fair share.

A quick note on Hinchey’s retirement

Maurice Hinchey announced today that he will not seek re-election in 2012. I was once an intern for Representative Hinchey, and have fond memories of the people with whom I worked and I share values which much of Hinchey’s voting record. I for one will miss his presence in politics. His retirement from Congress will likely have interesting consequences on redistricting in New York, as the state redraws the Congressional map.

This may prove to be a strong move for Democrats. The next Congressional election coincides with the presidential election—which means that voters will be strongly influenced by which party they vote to the presidency. While Obama’s poll numbers and approval rating are both mixed right now, betting on an Obama win is smart money—presidential incumbency advantage has been so strong that we’ve had a single one-term president since 1980. So if Obama does win, that makes 2014 is 2nd mid-term election—a historically dangerous one for the president’s party (think 2006 for the Republicans).

Thus, by Hinchey retiring, New York politicians won’t have to protect his seat from redistricting. This year, New York will lose 2 seats in the House of Representatives—such loses usually end up endangering newly elected representatives. Thus by not seeking reelection, Hinchey will protect younger incumbent Democratic seats elsewhere in the state from the redistricting process this year, and giving them one more term of incumbency going into what would be likely be a difficult 2014.

Hinchey's current district may look nothing like it does now by the end of next month. Presently the 22nd snakes around the Pennsylvania border to cover cities like Ithaca, Binghamton, Kingston, Poughkeepsie, Middletown, and Newburgh. The district is currently packed, that is, it snakes around to contain all the democratic areas in one district. In fact, the currently blue 22nd is in a sea of red: the 19th to the south, the 20th to the east and north, the 24th to the north and the 29th to the west are all held by the GOP. So, my guess is that the current 22nd will be cracked—so that Ithaca and Binghamton will no longer be connected to Ulster County, Sullivan County, and the surrounding areas. This will be done to protect Democrats elsewhere in the state.

What does this mean for Hinchey’s home Ulster County? My best guess would be that it will get split between the 19th and the 20th. If that happens, it may be a long time until another Ulster County Democrat gets to Washington.

A short note about reapportionment and democracy

As you likely know, the decennial census counts the population of each state and distributes seats given to each state in the House of Representatives for the next decade. The census purports to do this proportionally. However, the data show that this is not done proportional enough, at least not to meet our modern conception of democracy.

The 2010 census has told us that the most populous state is California with 36,961,664 people. As such, the state has been given 53 representatives in the House. Wyoming is the least populous state with 544,270 people, getting only 1 representative in the House. Thus, in the House, Wyoming has 544,270 people per vote while California has 697,390 people per vote. Each representative’s vote in the House is equal. As such, 544,270 Wyomingites are equal to 697,390 Californians. Wyomingites have 1.28 times greater voice than Californians in the House. Following that formulation, in the Electoral College Wyomingites have 3.64 times greater voice than Californians do; 2.8 times less democratic than the House!

            What’s worse is the Senate. Now, the whole reason for the Senate is to give each state equal voice in the federal government. The original Constitution gave the power to appoint Senators to the state legislatures, meaning the voice being distributed was quite literally to the states, not the people. Due to the 17^th Amendment, we now popularly elect senators. Since each state gets 2 senators Wyomingites get 67.9 times greater voice than Californians in the Senate!

It’s clear that the structure of our bicameral national legislature favors less populous, usually agrarian states. This is unsurprising considering the mostly rural past of this country. But just like all of electoral engineering issues there are trade-offs and big political implications.

·         Without giving the least populated states inflated power, California and a few other large states could dominate national politics. However, one could counter that those states deserve to benefit from such domination; they have the population to back it up.  

·         Also, the least populous states often favor more conservative politics, likely giving Republicans unrepresentative power on Election Day.

·         Pork projects and subsidies are currently often found in states with low populations; think Bridge to Nowhere and Ethanol subsidies.

Lastly, note that the Constitution only reads, “[t]he Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…” In 1790 the U.S. population was 3,929,214, and the 1787 document allots for 65 representatives, giving 60,449 people per representative. In 2010 the national population is 307,006,550. However, the number of representatives has remained constant at 435 since the passage of the Permanent Apportionment Act of 1929. Thus, we now have 705,762 people per representative.

My purpose for pointing out such numbers is to show that each generation must look at the decisions made by generations past We must recognize that the old adage of ‘one person, one vote’, is overly simplistic and misleading. If the spirit of the saying was ever true, it certainly isn’t now. Note that gerrymandering and corruption needn’t be invoked. In the final analysis, the only thing holding our nation to our skewed system is ourselves.

Why Democrats will likely lose seats this Midterm, and that’s OK

So, many commentators have been rambling about how the Democrats will suffer genocide in DC this year at the hands of voters. Well, they’re probably right that the Democrats will lose seats. The question is, does that mean anything? Well, I’m here to tell you it doesn’t. With few exceptions, the president’s party loses seats in at least the House and often the Senate after his first midterm election.

That’s just how the American electorate operates. The one thing they hate more than Congress doing nothing is Congress doing too much. Americans are uncomfortable with any party having too much power.

Below is a chart showing how many seats the president’s party has lost during his first midterm elections.

Year	Prez.	Party	House	Senate
1946	Truman1	Dem	-54	-11
1954	Eisenhower	Rep	-18	-2
1962	Kennedy	Dem	-4	+3
1966	Johnson2	Dem	-48	-3
1970	Nixon	Rep	-12	+1
1974	Ford3	Rep	-49	-3
1978	Carter	Dem	-15	-3
1982	Reagan	Rep	-27	0
1990	Bush	Rep	-8	-1
1994	Clinton	Dem	-54	-8
2002	W. Bush	Rep	+8	+2

You will notice that the ‘Republican Revolution’ in 1994 wasn’t all that impressive when viewed historically, and wasn’t as big as 1946 for the Republicans. Importantly, since then, Democrats have chipped away at the lead created that year, and took control of both Houses in 2006.

You’ll also notice that 2002 seems to be an important exception, and it certainly is. The only time a post-WWII president has gained seats in the House during his first midterm election conveniently took place just over a year after September 11, 2001. Coincidence? No. The nation was stirred into patriotism and stood behind the president, his party, and the military operations in Afghanistan occurring at the time.

What’s my point? Well, so what if the Democrats lose a few seats here and there. Knowing the collective and historic nature of the American electorate, one couldn’t expect anything else. Especially since the Democrats had big gains in both 2006 and 2008. It’s simply time for the pendulum to swing the other way. From a governance point of view, it may matter how many seats the Republicans pick up, but otherwise this year will simply be another reminder of how fickle the American voter can be.

Nonetheless, no matter who or what you support, go to the polls and vote.

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1. Harry Truman took office after the death of Franklin Roosevelt. Since he took office in April of 1945 he had plenty of time before the next midterm elections of 1946. So the 1946 elections are counted here as his presidency’s first midterms elections.

2. Although Johnson took office in 1963 after the assassination of Kennedy, it was after Kennedy’s midterm elections. He was elected in his own right in 1964. As such, 1966 is counted here as his presidency’s first midterm elections.

3. Gerald Ford also took office on short notice. However, he took office in August of 1974, in time for a midterm election. As such, the 1974 elections are counted here as his presidency’s first midterms elections.