Monday, April 24, 2017

On a New Era Dawning in the E.U. State of France

With Emmanuel Macron finishing first on the first-round of voting for the head of state in the E.U. state of France, the media declared a new era in the state politics was already a foregone conclusion. Yet the support of the political elites at both the state and federal level could be read as tempering any such landmark announcement.
With 97 percent of the vote counted, Emmanuel Macron had 23.9 percent, Marine Le Pen followed closely with 21.5 percent, “the mainstream right candidate Francois Fillon had nearly 20 percent, and the far-left candidate Jean-Juc Melenchon had 19.6 percent.”[1] The Socialist Party’s candidate came in with only 6 percent. With just 4.3 percent between Macron and Melenchon, it can hardly be said the traditional parties, except for the disappointingly ruling Socialists, succumbed to “a new era” in the state’s politics.[2] Indeed, even “before the official tallies were announced, the political establishment was rallying behind” Macron, suggesting that the political elite would have considerable pull with the independent. “There is a sigh of relief, said Jan Techau of the Holbrooke forum at the American Academy in Berlin.[3] To be sure, the E.U.’s political elite was pleased that a federalist would be in the running against the anti-federalist, secessionist Le Pen in the state’s runoff for governor on May 7, 2017. Even so, that the state and federal political elites were rallying for the “independent” candidate” could be taken as a powerful indication that news of a “new era” in the state’s was being vastly overblown by the media—whose sensationalist bias needs no explanation.
The similarity to Ross Perot, a politically independent Texan businessman who received 18.9 percent of the popular vote, had he won the U.S. presidency in 1992 is simply bad comparative politics. Besides there being no run-off beyond intra-party primaries and caucuses, no “dangerous” alternative on the far-right had a credible chance. Additionally, an electoral structure taking account of the semi-sovereign republics in the Union does not apply to a state-level system in another such union. Specifically, the Electoral College, whose electors are by state and whose allocation of electors reflects the point that each republic, no matter how small, should have a significant role, as per the fact that each state has enumerated and residual sovereignty, in the selection of the federal executive. None of this applies to a state-office race in the E.U.
Eliminating the implied category mistake in likening a state-race in the E.U. to a federal race in the U.S., Emmanuel Macron is actually closer to Jesse Ventura, who was elected head of state and chief executive of Minnesota in 1998. Although he ran affiliated with the Reform Party that Perot had founded, the independent shed that party shortly into his term. The two traditional parties in Minnesota did not cheer on his campaign, so he was not beholden to them. The case of Macron in France is more nuanced. Hence, from this comparison we may conclude that the preachment of a new era in one of the E.U.’s big states to be hyperbolic rather than substantive.

[1] Alissa J. Rubin, “Emmanuel Macron and Marine Le Pen Advance in French Election,” The New York Times, April 23, 2017.
[2] NPR news reported on the election night that the traditional parties’ demise in the first-round election signaled a new era in French politics.
[3] Steven Erlanger and Alison Smale, “After French Vote, Mainstream Europe Breathes a Sigh of Relief,” The New York Times, April 24, 2017.

Friday, April 21, 2017

On the Spread of Private Governments in a Democracy: Should Churches and Universities Have Their Own Police Forces?

In mid-April, 2017, Alabama’s Senate approved a bill that would authorize Briarwood Presbyterian Church to create a police department. At the time, the church hired off-duty police employees to provide security-- “a common practice among nonprofit organizations.”[1] With 4,000 congregants, a K-12 school and thousands of events on its land each year, church officials had difficulty finding enough off-duty cops who were available. More important than being able to make up for any shortages, the proposed law “would empower a religious group to do a job usually performed by the government.”[2] That the group is religious in nature whereas police power is governmental (i.e., “church and state”) is less important than that the “job” had come to be viewed societally, as per the quote from The New York Times, as usually performed by government. In other words, the slippery, subtle slope is itself a red flag.

Briarwood Church is a virtual village, albeit a privately-held one. (source: Briarwood Church)
“Police powers are a quintessential government role,” said Randall Marshall of the ACLU of Alabama.[3] In U.S. constitutional law, the Tenth Amendment is judicially interpreted as giving the states police powers in line with the protection and maintenance of the health, safety, and welfare of the citizens.[4] In other words, the police power resides with the state governments. That the elected representatives in state offices are “closer to the people”—meaning smaller districts—means that the police power is tightly woven with democratic accountability and thus democratic legitimacy, at least in theory. That state governments delegate the power to local subunits (i.e., counties and municipalities) introduces a wrinkle in this feedback loop, especially if the county or city government is corrupted by local wealth, which is by nature pro-police qua property-protection.
Randall Marshall of the ACLU of Alabama overlooks the key governmental basis of police power in privileging the problem of church and state in his conclusion, “Giving the powers of the state to a private religious organization is a …violation of the establishment clause” of the U.S. Constitution.[5] I submit that for a government to allow a church to have employees with the powers to arrest and use deadly force is not to establish a state religion. The decisive problem is rather that a non-governmental entity—a non-profit organization—would assume a governmental role. That democratic legitimacy would be replaced by managerial prerogative is the sort of shift that is not typically transparent to translucent daylight.
The church employees would have “all of the powers of law enforcement officers” in Alabama, including “the powers to make arrests and use deadly force.”[6] They would have to be certified by the Alabama Peace Officers Standards and Training Commission, making them a real police department. The church pastor and his board of directors—private citizens, not government officials, in a private association—would be the bosses of a full-fledged police force. As troubling as this may sound, precedent exists in another domain of non-profit organizations.
Universities have their own police forces, which are accountable, in theory at least, to academic administrators (i.e., managers) rather than to a city council or mayor. In the case of state universities, their respective state governments are at a distance; typically a board of regents is the go-between. A university administration’s over-reaches can easily go under such a board’s radar—not to mention that of a state capitol. Even assuming adequate accountability, the interest of a university’s administration is not that of a state government—the former being considerably narrower in scope.
A government, unlike an organization’s board and management, stands for and protects society as a whole, so a police force answers to officials who are tasked with looking after the interests of the whole, rather than those of a part thereof. In theory, police can serve in an unbiased way between two contending groups within society, unless one of those groups is the government itself; but that group is not in society. Government as an organization differs qualitatively from organizations in society because only government represents the whole (i.e., the entire society, and thus the common good). This difference is crucial as to why giving organizations in society police forces of their own; organizational “police” are subject to a part (of society) rather than the whole and therefore something partial rather than the general good. Rather than the whole acting in its interest with respect to two contending parts of the whole, one part gains a lever over another part—a lever of such power that the U.S. Constitution assigns that prerogative to governments.
The issue at hand, whether the organizations are religious or educational (or both, as is Briarwood), is thus not the particular flavor of the organization. Even beyond whether a governmental power is misappropriated, the ultimate concern for the general public ought to be the risk of unaccountable police overreach at the expense of the members of organizations—whether parishioners, students, staff, faculty or even visitors. The risk is real because an inherent bias exists in the institutional arrangement itself, which unfortunately comes part and parcel with the misappropriation.
The troubling matter of accountability is so important because a serious, albeit unfortunately overlooked conflict of interest exists when a “police force” is beholden to an organization (i.e., its management) rather than a government, which represents the public good. Anytime such a “police force” intervenes in a conflict between the organization’s administration and its members, the “police” employees are subject to an inherent bias in favor of their bosses higher up in the organization. The bias is institutional in nature; employees are going to lean in the direction of the people who pay and direct them. A “police chief” in an organization is naturally going to side with the administration of which he or she is a part, rather than with members, and the “chief’s” subordinate employees are going to follow along even if they harm or intimidate members unjustifiably.
An organization’s management can order its “police force” to take action against “troubling” members, whereas they in turn face an “uphill climb” in convincing the administration’s “police” to take action against administrators who are out of line. “Police” employees of a church are likely to be hesitant at best to remove an irate, abusive pastor at the behest of some offended members, but those same employees would not blink an eye before removing a parishioner, who is orally challenging the pastor on a hitherto-secret regarding his salary or expenses, at the pastor’s request. This asymmetry is the fault-line in the conflict of interest. Any tense relation between an administration and the organization’s members suffers from the lack of a fair resolution mechanism because the security, or “police,” employees are subject to the institutional bias. In other words, the umpire or referee works for one of the teams.
As a result, administrators can potentially take liberties with more assurance than warranted of practical impunity, whereas the members and the general public (e.g., visitors) are potentially without the protections of liberty that are guaranteed citizens as per abuse of power by a government but interestingly not members as per abuse of power by an organization’s management or its armed “police force.”

More commonly, the board and pastor of a church and the administration of a university are likely to look the other way as members feel uncomfortable or even subtle intimidation on a daily basis due to an excessive “police” presence enabled by the bias in favor of the organizational leadership. That is, an organizational “police force” is not likely to be managed in such a way that the protection of the organization’s property and enforcement of its rules and even local law is balanced against the prerogative of members to feel at ease while at the organization.  Unfortunately, the risk of damage or violations of rules or laws cannot possibly reach absolute zero, so police forces, whether local or of organizations, are going to try to maximize their presence—caring less about member comfort in the process.
In short, giving non-profit organizations powers that are quintessentially governmental is inherently problematic, for to do so creates private governments without democratic legitimacy or accountability. Accordingly, universities and churches should be allowed to have security employees, who are empowered to guard the assets and enforce organizational rules yet without weapons and the power to arrest. Instead, they should be able to the local police rather than assume such governmental powers themselves. Otherwise, I fear the perpetuation of private governments—even at state universities!—with little or no real accountability. In a democracy, such a sordid spread should be a matter of concern rather than indifference or support.


[1] Ian Lovett, “Alabama Church Wants Police Force,” The New York Times, April 17, 2017.
[2] Ibid.
[3] Ibid.
[4] “Police Power,” Encycyclopaedia Britannica (accessed 4/18/2017)
[5] Ian Lovett, “Alabama Church Wants Police Force,” The New York Times, April 17, 2017.
[6] Ibid.

Saturday, April 8, 2017

The Strategic Use of Regulation in Government: A Proposal to Split-Up the Big Banks

The strategic use of regulatory reform is no stranger to businesses—especially to the strongest both financially and, relatedly, politically. Such proposals of more regulation are crafted not to benefit the macro economy or even the industry; rather, the point is to enhance a dominant firm’s competitive advantage over rivals. It follows that such proposals are not counter-factual to the thesis that republics are susceptible to the gravitational pull of plutocracy, the rule of wealth. A case in point is the U.S. Trump Administration’s consideration of a legislative proposal to reinstate the main content of the Glass-Steagall Act, which had separated commercial and investment banking such that a bank could not do both.
Gary Cohn, former number two at Goldman Sachs, talking to U.S. senators on behalf of the Trump Administration.
(source: Andrew Kelly, Reuters)

The full essay is at Strategic Use of Regulation.

Monday, April 3, 2017

How to Craft a Non-Partisan Constitutional Court: The Case of the U.S. Senate Confirming Justices

In interpreting a constitution, justice is best carried out when the justices are non-partisan rather than politically ideological. To be sure, every living and breathing human being has a political ideology, even if implicitly. Even so, the institutional process by which justices are chosen can mitigate this point by being oriented to non-partisan candidates. In other words, a system can be designed so as to minimize the likelihood that a partisan of one political party or another will sit on a constitutional court. The confirmation of Neil Gorsuch to sit on the U.S. Supreme Court can provide some insights in this regard.

The U.S. Senate Judiciary Committee meeting on Gorsuch's nomination on April 3, 2017. (NYT)

With the U.S. Senate’s Judiciary Committee having voted 11-9 along party lines to advance Gorsuch’s nomination to the full Senate, Sen. Chris Coons of Delaware voiced his intent to join the planned filibuster against the nomination. He said he wanted to “ensure the process to fill the next vacancy on the court is not a narrowly partisan process, but rather an opportunity of both parties to weigh in and support from members of both parties.”[1] A narrowly partisan process could be expected to produce a narrowly partisan justice, or at the very least to enable such a nominee to get through. In contrast, making support from a sizable number of senators from the minority party a requirement would make such a nomination unlikely. Instead, nominees whose views do not mirror those of one party would easily manage through the requirement. Were such nominees justices on the Court, its own decisions would be less likely to reflect familiar ideological differences wherein there are “conservative” and “liberal” justices. Instead, their more salient differences would be on judicial philosophy, which does not line up on the more political fault-lines such as “liberal” and “conservative.”

In the U.S. Senate, the filibuster requirement of 60 votes (in the 100 vote chamber) would ensure that a successful nominee gets at least some support from the minority party. In terms familiar in the E.U., the requirement of a qualified-majority vote—a “supermajority”—ensures that a choice is more widely accepted than would be the case on a more narrowly partisan basis. Ideally, both parties should confer with the U.S. President so he or she nominates someone who is acceptable to both parties. Then it would be very improbably that the justices sitting on the U.S. Supreme Court would be ideologically partisan (i.e., identify themselves as liberal or conservative). To a good jurisprud, those labels should mean little, especially in the legal context of interpreting law. My point is that a system or process of selection can be designed such that such judges tend to be the ones who get through unscathed.

Saturday, April 1, 2017

A Legislature Court: A Conflict of Interest Averted in Venezuela

Fundamentally, a court differs from a legislature, so it would be strange were a state’s supreme court to take it upon itself to act as the state’s legislature as well. In late March, 2017, Venezuela’s Supreme Court did exactly that, ignoring the qualitative difference between interpreting contested law and legislating. The court wrote that lawmakers in the legislature were “in a situation of contempt,” and that as long as that situation lasted the justices would “ensure that parliamentary powers [are] exercised directly by this chamber, or by the body that the chamber chooses.”[1] Understandably, Julio Borges, the head of the legislative Assembly, exclaimed, “They have kidnapped the Constitution, they have kidnapped our rights, they have kidnapped our liberty.”[2] Luisa Ortega, the Attorney General,” wrote that the court’s decision represented “a rupture in the constitutional order.”[3] This was true both in regard to the basic, or fundamental distinction between judicial review and legislating and democracy itself.

 The president and Chief Justice of Venezuela. An presidential over-reach? (Source: Reuters)

It was no mere coincidence that Borges’s party was not that of the state’s president. Importantly, both the legislators and the president had been democratically elected (assuming fair elections). To make this point, Borges added, “The people chose us through a popular vote.”[4] So for the justices to declare that legislative powers could be exercised directly by the court represents an affront to representative democracy.
Tellingly, in the wake of popular protests, the Court reversed parts of its decision only days later. In an address, the court’s chief judge insisted that the “decisions of the court have not divested the Parliament of its powers.”[5] The Court had suppressed parts of the prior decision to nullify the legislature and allow the court to write laws itself.  The chief justice said the Court is “only an arbiter” and thus should not be in conflict with other branches of government.[6] I would add that a court should not take on the functioning of another branch, for besides the risk to democracy itself, jurisprudence is qualitatively different than law-making and execution of the law. Interpretation of a law presumes that the latter has been promulgated and enacted for there to be a conflict over it. Additionally, to both enact and interpret the same law would occasion a conflict of interest wherein the judicial interpretation would favor the legislative intent. In fact, the interpretation could simply be a continuation of the intent!  So in the end, the separation of powers not only protects democracy, but also prevents a conflict of interest in governance.

[1] Nicholas Casey and Patricia Torres, “Venezuela Muzzles Legislature, Moving Closer to One-Man Rule,” The New York Times, March 30, 2017.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Nicholas Casey and Patricia Torres, “Venezuelan Court Revises Ruling That Nullified Legislature,” The New York Times, April 1, 2017.
[6] Ibid.