2020 Democratic Convention — Unity and Reform Commission — Part 1

While, in one sense, it is very early to talk about who will be President of the United States on January 21, 2021, there are many people who think that process has a lot to do with results.  And the drafting of the rules for 2020 have already started.

On the Republican side, there is no public effort to re-write the rules.  Unlike the Democratic Party, the Republican party has the basic rules (which are less detailed than the Democratic Party rules) for allocating delegates to the national convention within the actual Rules of the Republican Party and require a supermajority of the Republican National Committee to change those Rules.

The Democrats, however, keep the rules for delegate selection separate from the party by-laws.  So every cycle, the rules and by-laws committee drafts those rules and submits them to the full Democratic National Committee for approval.  The starting point for these rules is the rules from the previous cycle.  However, because no rules are perfect, most contested campaigns lead to complaints about the rules.  These complaints in turn have, in most of these cycles, caused the party to appoint a commission to study whatever rules were seen as being a problem in the last cycle and make recommendations. Continue Reading...

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A Long December

The year comes to a close with its usual mix of good news and bad news.

On the 2020 presidential election, the Unity Reform Commission has completed its work.  Josh Putnam over at Frontloading Headquarters has posting summaries of the Commission’s decisions.   From the first two summaries, the recommendations seem to be moving toward more open primaries (a reversal of the party’s traditional support for closed primaries) and to make caucuses more like primaries with a preference toward using the primary if there is a state-run primary.  These recommendations will go to the Rules & By-laws Committee (which folks may remember from 2008).  The Rules & By-laws Committee will take these recommendations into account in drafting the 2020 Call and Delegate Selection Plan.  When the draft is concluded, the RBC’s draft goes to the full Democratic National Committee for approval.  If the Unity Reform Commission believes that the RBC is not fully implementing their recommendations in the draft, they can ask for the full DNC to intervene.  Presumably, the party will also begin its site selection process early in 2018.

As the site selection and the rule drafting process continues, there will probably be a lot of discussion here.  For now, it is important to be cautious about changes driven by the problems of the last cycle.  There is always a temptation to “fight the last war.”  But the problems in one cycle do not necessarily recur in the next cycle, and it is important not to do things that will probably make more problems than they fix. Continue Reading...

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To Bake or Not to Bake

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law. Continue Reading...

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Tax Cuts vs. Tax Reform

The Republicans have set themselves the goal of passing tax legislation by the end of the year.  They took a major step by passing a budget resolution this past week which authorized tax legislation as long as that legislation had a net cost of less than 1.5 TRILLION over the next decade.  As such, as long as the CBO scores any legislation as complying with that cap, it is exempt from a filibuster.

That cap reflects a significant part of the current debate inside the Republican party — do they want a tax cut (reducing the overall tax burden) or tax reform (a revenue-neutral rewrite of the tax law).  This debate will be significant because the Republican approach is that those who make the most money pay the most taxes and therefore should get the most relief.  Thus, their proposals will be very top heavy on who gets the relief and the deductions most at risk will be those that benefit the middle class.

First, some Taxes 101 to set the background.  Both at the corporate level and at the personal level, calculating taxes begins with defining income.  Then there are certain authorized deductions from income that lead to a smaller income that qualifies as “taxable income.”  There are then income brackets in which you pay x% for the first $Y amount of income, than pay a slightly higher rate on the additional income above that amount (and just that additional income).  (E.g., If the top tax bracket is 40% and kicks it at $500,000, the taxpayer is only paying 40% on the income above $500,000 — so on an income of $700,000 that 40% only applies to the last $200,000 of income and the first $500,000 is taxed at a lower rate. )  After taxes are computed, the taxes can be reduced by tax credits. Continue Reading...

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Fall Elections

In most of the world, the practice is to limit the number of races being contested on any given election day.  Thus, regional elections are held on a separate day from national elections.  In the U.S., however, most states opt to hold state elections on the same day as national elections.  Thus, in most states, the election for governor either falls on the same day as the mid-term election or on the same day as the presidential election.  In a small number of states, however, the election for governor occurs in an odd-year.

Two states — Virginia and New Jersey — hold the election in the year after the presidential election.  (Three states — Kentucky, Louisiana, and Mississippi — hold the elections in the year before the presidential election.)  Both New Jersey and Virginia have a tendency — not absolute, but a tendency — to elect a governor from the party not in the White House.  In New Jersey, the last time that the party in the White House won the governor’s race was 1985.  In Virginia, while the party in the White House won in 2013, the last previous time that the party in the White House won was 1973.  There are a lot of reasons for these results — including. similar to the problem that the party in the White House faces in mid-term elections, the simple fact that governing is much harder than running for office, so supporters of the party in power tend to be disappointed with the actual fruits of their victory while those out of power tend to be angry and motivated.

As things currently stand, things are looking very good for the Democratic candidates in New Jersey.  Aside from New Jersey’s normal Democratic lean and the tendency for the party not in the White House to win, the Republicans nominated the current Lieutenant Governor, making it hard to separate the current Republican ticket from the corruption of the current administration of term-limited governor Chris Christie.  The Democratic candidate, Ambassador Phil Murphy, leads by double digits in every poll this fall.  While some of the polls show enough undecided voters to leave a theoretical opening for the Republican candidate, the race in New Jersey is not particularly close. Continue Reading...

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The Future of Redistricting

At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander.  Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion.  Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.

This case has its roots in the framing of the Constitution.  The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county).  When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”).   The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament.  In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.

By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed).  Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting.  In simply requiring redistricting, the U.S. Constitution was ahead of its time.  Now, most countries that use a first-past-the-post system also have periodic redistricting.  The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines.  The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process.  And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting. Continue Reading...

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The Republican Civil War — Alabama Edition

The next seven days is one of those weeks that happen from time to time when there are a lot of events competing for the attention of political wonks — the German elections, the “long conference” at the Supreme Court, perhaps a vote on the latest Republican effort to repeal Obamacare, perhaps even more news on the Russian involvement in the 2016 elections and the Trump campaign’s connections to those illegal acts.  The most significant event, however, might be the Republican runoff in the Alabama Senate special election.

Over the years, a recurring topic on this blog has been the internal divisions in the Republican party (and to a lesser degree the divisions in the Democratic party).  The run-off in Alabama pits a conservative “Establishment” candidate (interim Senator Luther Strange) against the Tea Party/Trumpist candidate (State Supreme Court Chief Justice Roy Moore).    It is not possible to describe all of the wacky things that Justice Moore has done over the year that violated his oath of office (some of which got him removed from office the first time).  A Senator Moore would actually make Ted Cruz and Rand Paul look normal.

While Trump — perhaps seeing a need to at least pretend to work with the Republicans in D.C. — is supporting Senator Strange, but Breitbart and other parts of the Trump machine are supporting Justice Moore.  Current polls are showing Justice Moore with a comfortable (but not necessarily safe given how difficult it is to predict turnout) lead. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part III (Remaining Cases)

In Part I and Part II, we looked at the cases that have already been scheduled for an argument.  This post will look at the cases for the remainder of the term.

As of this point in time, the Supreme Court has not yet announced the schedule of the cases that will be argued in December.  (The December argument session actually begins the Monday after Thanksgiving, November 27.)  There are six available dates for argument and ten cases available.  (To get to ten available cases, the Supreme Court granted review in the middle of August to replace one case that was dismissed.)  It is possible that some of the ten cases may end up in January, particularly if they do not accept many cases over the next several weeks for January.  (The briefing schedule typically requires at least three months between the Supreme Court granting review and the argument.  As such, the January argument docket will come from the cases already granted and the additional cases added between now and October 16.)

As with the previous posts, some of the cases available for argument in December are somewhat technical issues that will not get a lot of public attention. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part II (November Arguments)

In Part I of this year’s Supreme Court preview, we took a look at the ten cases set for argument during the first two weeks of October.  Currently, for it’s six-day November argument session (which actually begins on October 30), the Supreme Court has eight cases.

Unlike October in which seven cases have the potential to generate headlines or impact elections or major policy issues, November looks a lot less intense.  The first week is one of those technical weeks that matter mostly to the parties and the attorneys who practice in an area — two cases dealing with the procedure for federal habeas practice (the review of state court decisions by the federal courts), one case deals with bankruptcy issues, and one case deals with the tolling of state law claims while a related federal claim is pending.  The second week starts with another two technical cases — another bankruptcy issue and a case on the disclosure requirements for companies that have publicly traded stocks and bonds (focusing mostly on when an incomplete disclosure is misleading).

The last two cases — set for November 7 and November 8 — respectively are the big political cases of the November argument session.  The first case (Patchak) involves what appears to be a growing trend — Congress passing laws to deal with pending cases.   In this case, after federal courts had found that plaintiff’s had raised colorable claims (i.e. ones that, if true, would entitle him to relief), Congress passed a law directing that the courts to dismiss the case.  While Congress does have some authority to change the laws governing certain types of claims or the procedural rules that apply to claims, the rules are a little bit less clear when Congress tries to direct the judgment in a specific case.  Adding to the complicating factors, the case involves the U.S. government taking land into trust for a tribe.  While the merits of whether the land properly belongs to the tribe is technically not the issue at this stage of the case, that may play some role in the analysis. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part I (October arguments)

It’s mid-September which means that the Supreme Court will soon be returning to Washington for this year’s term.  The Supreme Court, for the most part, controls what cases it will schedule for full briefing and oral argument.  For this fall, the Supreme Court has a total of twenty-eight cases (actually a little more, but several cases have been consolidated) available for argument over seventeen argument days.  They have posted the schedule of cases for October and November with the remaining cases likely to be scheduled for December (although some may be heard in January).  It is unclear if the low number of cases is the product of the time that it took to fill the vacancy on the Supreme Court or is the continuation of the long-term trend under the last three Chief Justices to gradually reduce the number of cases heard.    However, the numbers tend to support the “reducing the docket” theory.  While the January “holdover” cases are slightly low (only three), the number of cases on which the Supreme Court granted review in February and March are close to average.  The real “below average” months are the months after Justice Gorsuch took the bench.

This part will look at the cases currently scheduled for argument in the  “October” session beginning on October 2.  As in past years, I will be focusing mostly on the “political” case, those dealing with elections or with heated public policy issues.  These cases aren’t the entirety of the Supreme Court docket.  A lot of the Supreme Court docket deals with resolving conflicts over the interpretation of interpretation of federal statutes or handling criminal justice issues.  These cases do not get a lot of media attention, but they do matter to the persons impacted by them.

Of the ten cases on the October docket, three deal with immigration issues.  Two of the cases (Dimaya) and (Jennings) are rearguments from last year.  The belief is that these cases were probably 4-4 splits, but that might not be the case for Jennings. Continue Reading...

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