What's happened to us (or, what explains the allure of a Donald Trump candidacy)?

The candidacy of Donald Trump takes me back to law school.  I will never forget the day we discussed Shaw v. Reno -- the North Carolina racial gerrymandering case -- and the professor called on the guy in the back.  The guy in the back had not done the reading.  And upon every question, his answer was the same: "I don't know."  But there was something about the way the guy in the back answered the questions.  He must have seemed convincing enough.  And the case must have been confusing enough.  The professor liked those answers just fine.  

I bet the guy in the back must be a successful litigator somewhere.

This is the way I think about the Trump candidacy.  How could any of this happen? I don't know.  How could a person with no political experience get this far?  I don't know.  How could a person with such a checkered past get this far?  I don't know.  How could a person with as many bankruptcies and divorces speak for the "moral majority"?  I don't know.  How could a person recently labeled a racist by an influential columnist get this far?  I don't know. 

I could go on.

These are the questions that journalists and political scientists are now asking.  They are interesting questions.  As I think about the Trump candidacy, however, my mind goes back to the founding of the United States and the many fears and concerns that occupied the minds of the founding generation.  They feared precisely this, populism and what might amount to mob rule.  They feared direct democracy.  They feared the union of citizens "actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  This is where checks and balances came in, and federalism, and separation of powers, and the Senate, and the Electoral College.  You can add to this list the rise of the party system and its disciplining influence on the impulses and passions of the masses.  

You can read many accounts of what has happened to the Republican party to get us to where we are today. I am more interested in a separate question: isn't Trump's the very candidacy that our constitutional structure is designed to avoid?  It is tempting to go back through time and compare the 2016 election cycle  with prior cycles (1964 is a popular example, and the Goldwater candidacy).  But I agree with those who argue that Trump is sui generis. His candidacy is unique.  And it raises the question:  What has happened to us?  Is this who "We the People" are, at out core?  Is the Trump candidacy a reflection of our basest instincts?  

Unlike the guy in the back, we know the answers to these questions.  

Mitt Romney and Path Dependent Processes

Mitt Romney often justifies his moderate record as governor of Massachusetts (and subsequent leap to the right) as a deviation since he was the governor of a democratic state with a legislature that was, at the time, 85% democratic.  In the primaries, he has been criticized extensively for “flipflopping, or changing positions on issues such as abortion and health care and not being “a true conservative.”  But I wonder the extent to which the other candidates for the Republican nomination and the press are discounting the effect of path dependence on Romney’s alleged “shift” to the right in reviewing his record as governor. 

The fact that Romney became governor of a state that is historically democratic in almost every respect except the governorship limits his ability to govern to the right.  This is reflective of a state that has been a Democratic stronghold for years, but has voters who are willing to vote for moderate Republicans for at least some state offices.  Path dependence is relevant here because the investment in the rules, process and norms by Romney’s predecessors and prior legislatures into Massachusetts government over the past 250+ years make deviations by modern day officials very costly.  Even if we just consider the past century, Democrats have invested more into this governing framework than Republicans just by virtue of the fact that Democrats have won more elections.  While the governorship oscillates between Democrats and Republicans, the Democrats have (and have had) a supermajority in both Houses, meaning that legislation can be passed over the governor’s veto if the governor is a Republican.  Because of path dependent effects (and an overwhelmingly Democratic culture), there is a strong status quo bias that makes it difficult, if not impossible, for Republicans like Romney to shift the Massachusetts government to the right.  At best, all Romney could have done (if he wanted to get anything done) is govern in the middle.

Now you may argue that this has little to do with Romney being for abortion, on one hand, and then against it, on another.  Or passing universal health care in Massachusetts and then threatening to defund a similar program on the federal level.  Maybe it does not, but I think that it is worth recognizing that, in assessing Mitt’s policy positions, he was a red governor in a blue state and this fact did affect his ability to govern to the right.  At the end of the day, you may still conclude that he is a "flipflopper," but standing up for “core conservative principles” does not mean much if nothing gets done.  Governance requires compromise.

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 

“Our whites are so much better than their whites” (or still waiting on my apology from Ann Coulter)

Imagine that it is 1998 and the House has filed articles of impeachment against Bill Clinton for perjury emerging from his affair with Monica Lewinsky.  A political pundit, who happens to be African-American, remarks that Bill Clinton is being persecuted because of his efforts to help minorities in this country, and that efforts to impeach him are consistent with conservative goals to effectively “end” the middle class in this country and relegate minorities to permanent underclass status.  This unnamed pundit ends his comments by observing that the efforts of Bill Clinton to help minorities and his persecution by conservatives is indicative of the fact that “Our whites are so much better than their whites.”  

What would follow these comments is the immediate resignation of this pundit from the network and an apology to all who were offended.  This fact pattern is obviously a spin on Ann Coulter’s recent defense of Herman Cain, who is currently under fire for sexual harassment allegations made against him while he was the head of the National Restaurant Association.  She noted that “there is nothing liberals fear more than a black conservative” and she observes that, ““Our blacks are so much better than their blacks” because “you have fought against probably your family, probably your neighbors. . . that’s why we have very impressive blacks.”

Despite the controversial nature of these comments,  I suspect that there will be no apology or resignation, but here is why there needs to be an apology for a couple of reasons.  First, I think Ann Coulter is continuing a theme that Herman Cain himself started – that African-Americans who support the Democratic party have been brainwashed into doing so.  This view of African Americans as passive participants in politics, reinforced by a cowherd mentality, is a statement that in and of itself suggests a hierarchy within the race that is reinforced by Coulter’s remarks.  In other words, “the talented tenth” vote Republican and are rich because they “choose” not to be poor.  This is not a theme that the Republican Party, who has already been accused of being anti-gay and pro-death, wants to run with going into 2012.      

Second, Coulter’s statements bring to mind many of the divisions that were present during the Antebellum period – notably, the division between house slaves and field slaves as a result of the fact that house slaves were treated better and therefore more loyal to the master than field slaves.  That is why her statement, which claims possession over African-American conservatives and references the dissension caused in African-American families when an individual family member decides to vote Republican, is so troubling.  In fact, the reason I started this post with “Our whites are so much better than their whites” is because I want readers to get a sense of how ludicrous it sounds when a minority claims ownership over a group of white people and how this would be discrediting to the speaker, but how troubling and disturbing it sounds when a white person claims ownership over a group of minorities because it harkens back to a historical truth.  Coulter paints African-American conservatives as the “house negros” who are brave and loyal because they dare to stand up to the “field negros” who would betray the master.  This makes her comments dangerous in a way that demands a response, either from Fox News, the so-called “liberal” media, bloggers, Bill Maher, Herman Cain --- someone needs to remind Ann Coulter that this is 2011, not 1811. 

Pennsylvania's Mis-Adventures with the Electoral College

The Republican Party is hard at work in Pennsylvania. Under a new bill now making its way through the state legislature, the state would change its long-standing practice of awarding Electoral College votes under a winner-take-all system and instead would award them by Congressional districts. Why would Pennsylvania Republicans take this new route?  According to Dominic Pileggi, the Senate majority leader, “The goal is to have the votes in the Electoral College more closely reflect the popular vote . . . [and] [t]his is one way to do that.”

Really.

Last week, I was asked by the Washington Post to host an online session on this issue.  The questions were many and I couldn't possibly get to all of them in the time allotted.  Two themes immediately emerged.  One was the notion that Republicans were rigging the rules of the game for political advantage. A second was that Democrats were no better and would do the same thing if they could get away with it.  

The political calculation is easy enough to discern. Republicans are assuming that they will lose the statewide popular vote, something they have done since 1988.  But this is not a slam-dunk as a question of politics.  In going to a districting system, the state is simply shifting electoral incentives and will force candidates to campaign differently.  Whether this makes sense as a question of partisan politics thus requires a crystal ball, and Republicans clearly do not have one.  

It is hard to get worked up over this.  This is precisely what we would expect from a state where one party controls both the governorship and the state legislature.  And yet, it is hard not to be cynical about it. The question of how we elect a president is fraught with much difficulty. This is not an easy question, and the American nation has struggled with answers from the time of the founding.  While I am agnostic whether the Electoral College should be amended or even abolished, I am far more confident in the view that political expediency should play no role in this debate.