Minority rule: Why our undemocratic republic must give way to something else

The founders favored indirect democracy reflecting the will of the majority.

Previously published at WGBHNews.org.

If something can’t go on forever, then it won’t. And so it is with the current state of our democracy, which awards disproportionate power to an ever-shrinking slice of the electorate. Today the president, the Senate, and the Supreme Court reflect the will of a minority of voters. The majority is left out in the cold. At some point that has to change, even if it’s not at all clear how it’s going to happen.

Now, some of you are already sharpening your sticks and getting ready to poke holes in my argument. We’re not a democracy, you’ll say. We’re a constitutional republic. Well, you’re half-right. Living in a constitutional republic means that our democratic rights are sometimes exercised indirectly, and that there are certain protections that the majority may not take away from us. What it’s not supposed to mean is that some people’s votes counts more than others.

I’ll return to that argument later on. But first, as Kai Ryssdal says, let’s do the numbers.

The executive branch. After what happened in 2016, our undemocratic method of electing the president is well known, widely understood, and, at least among Democrats, widely reviled. The Electoral College is a vestige of the past and, as I’ve written before, an artifact of slavery: it gave slave states a louder voice in presidential elections by counting each slave as three-fifths of a person even though they had no right to vote.

That obscenity is long gone. But voters in small states still have more power than those in large ones. Why? In addition to casting an electoral vote for each House district, every state gets two bonus votes (reflecting its two senators) regardless of size. How unfair is that? In tiny Wyoming, each elector represents about 194,000 residents, whereas in giant California the number is 697,000. It is the equivalent of each Wyoming voter’s ballot being counted 3.6 times while those of California residents are counted only once.

Until George W. Bush won the presidency despite losing the popular vote in 2000, the idea that the winner of the popular vote could lose the presidency seemed like a 19th-century anachronism, conjuring up images of Rutherford B. Hayes, known to his contemporaries as “His Fraudulency.” Then came 2016, when Donald Trump won despite losing the popular vote to Hillary Clinton by the not-insubstantial margin of 2.8 million votes. With more and more Democrats and liberals moving to blue states, the gap may only get worse.

The legislative branch. The anti-democratic nature of Congress is most obvious in the Senate, which is marred by the same small-state bias as the Electoral College. Each state, as we know, elects two senators regardless of size. To use our previous example, California’s Democratic senators, Dianne Feinstein and Kamala Harris, represent more than 39 million people, whereas Wyoming’s two Republican senators, John Barrasso and Mike Enzi, represent just 580,000.

That is an absurd situation, far worse than what prevails in the Electoral College, which at least is partly based on population. One consequence of the large-state/small-state divide is that millions more Americans vote for Democratic Senate candidates than for Republicans. For instance, Dylan Matthews noted in Vox several years ago that the 46 Democratic senators who were seated in 2015 had received 20 million more votes than the 54 Republicans. (The Democratic total included two independents, Bernie Sanders of Vermont and Angus King of Maine, who caucus with the Democrats.)

As with the Electoral College, the two-senators-per-state arrangement was rooted in the need to grant greater power to the slave states in order to bring the union together. Today, given that most small states are Republican and most large states are Democratic, Republicans gain a huge advantage.

House districts, at least, are based on population. But gerrymandering by Republican-controlled governorships and legislatures has had its effect there as well. In 2016, for instance, Republicans won 241 of the 435 total House seats, beating the Democrats by 55.4 percent to 45.5 percent. Nationwide, voters favored Republican House candidates by the much slimmer margin of 49.1 percent to 48 percent. That raises the specter that, even if Democrats had received more votes, Republicans still would have won more House seats.

The judicial branch. With the confirmation of Brett Kavanaugh as the ninth justice, the Supreme Court now includes two members who were appointed by a president who lost the popular vote — that is, President Trump. (George W. Bush appointed Chief Justice John Roberts and Justice Sam Alito only after his 2004 re-election, in which he won both the popular and electoral votes.)

Moreover, both of Trump’s nominees were confirmed by senators who received far fewer votes than the senators who opposed them. Michael Tomasky recently observed in The New York Times that in the case of Trump’s first choice, Neil Gorsuch, the 54 senators who voted to confirm him received 54 million votes whereas the 45 senators who were opposed won more than 73 million. That’s a margin of 58 percent to 42 percent against confirmation. The Kavanaugh confirmation vote broke along similar lines. Indeed, Philip Bump of The Washington Post estimated that the senators who voted to confirm Kavanaugh represented just 44 percent of the population.

In other words, reproductive rights, same-sex marriage, and other liberties are now at risk because of two justices who were appointed by a president who lost the popular vote, and who were were confirmed by senators who received far fewer votes than those who were opposed. Is this any way to run a democracy in the 21st century?

And yes, let’s get back to that democracy-versus-republic argument. What does it mean to live in a constitutional republic rather than a democracy? It means that we don’t make laws directly — we let Congress do it. It means there are certain rights that even a majority can’t take away from us (except through a constitutional amendment), whether it be freedom of speech, the right to bear arms, or the right to a speedy and public trial by jury.

As Harvard Law School professor Lawrence Lessig wrote two years ago, the “we’re a republic” retort favored by defenders of the Electoral College is nonsense. The founders defined a “republic” as a representative democracy rather than a direct democracy, not as a non-democracy. James Madison, Lessig pointed out, said that “in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.” (Lessig, I should add, is the force behind an intriguing idea to reform the Electoral College.) That doesn’t mean the minority gets to rule while the majority gets to shut up. It means the majority exercises its will indirectly rather than directly.

Writing in Philly.com, columnist Will Bunch offers some useful ideas to reform our anti-majoritarian system, ranging from abolishing the Electoral College to ending the two-senators-per-state arrangement.

Bunch goes so far as to compare our current situation to the run-up to the Civil War. “Let’s once again radically fix the way America does its business — this time, before a civil war breaks out,” he writes. That strikes me as hyperbolic, but maybe he’s right. We are facing a crisis of legitimacy We do not have a government of the people or for the people when any — or, as is now the case, all — branches of government exercise power against the wishes of most Americans. Because the status quo can’t be maintained, it won’t be. The only question is how we’ll fix a system that is irredeemably broken.

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The Supreme Court confirmation process is broken. Here’s how to fix it.

Robert Bork. 2005 photo via Wikimedia Commons.

Previously published at WGBH News.

Recently I proposed to fix our state elections by adopting ranked voter choice, moving the primaries to June, and making them nonpartisan. (You’re welcome.) Today I’m back with the exponentially more difficult task of repairing our broken Supreme Court confirmation process. My plan, I think, is simple and logical. But I’d be the first to concede that it has virtually no chance of happening.

Let’s begin with this: Judge Brett Kavanaugh will almost certainly be confirmed once the FBI has finished its quickie investigation. Senate Republicans have been pining for an ultraconservative like Kavanaugh for years, and they’re not going to let credible allegations of sexual assault, false testimony about his role in the George W. Bush administration’s torture policy, and a career spent immersed in the culture of misogyny to stand in the way.

What’s next? Democrats may take over the Senate in the November election, and they’ll be spoiling for a fight. It’s more than possible that they will reinvestigate Kavanaugh and maybe even impeach him. He has given them plenty of reasons to do so. But that’s the road to chaos, and it would lead to an endless cycle of retribution. That cycle has to be stopped, and on terms that recognize what a terrible choice Kavanaugh was while leaving both parties a chance to regain their dignity.

The way to do that is to let Kavanaugh take his seat on the court (assuming the FBI doesn’t find something new and explosive or at least two Republicans decide they can’t abide him) and then look to the future. I’d do this in three steps.

1. McConnell must apologize. The root of all this madness is Senate Republican leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia. McConnell’s alleged reason was that the next president should make that choice, even though Obama had nearly a year left in his term. It was an outrageous and shocking breach of protocol, and Democrats remain rightly incensed.

Republicans like to cite the Senate’s defeat of Robert Bork, chosen by President Reagan in 1987, as the original sin that led to today’s dysfunction. That’s ludicrous. Bork was granted a hearing and was rejected for what opponents considered his extreme views. Six Republicans were among those who voted no. That’s the way it’s supposed to work. Since that time, nearly every justice nominated by Republican and Democratic presidents alike has been approved by a wide bipartisan margin.

McConnell needs to acknowledge publicly the damage he did to the Senate and negotiate an agreement that neither party will try such a maneuver again. Leaders of both major parties should restore the 60-vote margin needed to avoid a filibuster, which would encourage presidents to choose consensus candidates for the court rather than extreme ideologues. In other words, they need to return to “regular order,” the breakdown of which the late senator John McCain cited when he voted against repealing the Affordable Care Act.

2. The court should be temporarily expanded. In writing about the lunacy that the Senate may fall into if the Democrats seek revenge for Garland, some have predicted that they may try to expand the size of the court in order to offset the conservative majority. As with the possible impeachment of Kavanaugh, that seems likely to set off an endless series of tit-for-tat actions.

But by temporarily expanding the court by one seat, from nine to 10, Congress could acknowledge the outrageousness of what happened to Garland and send a clear message that it won’t happen again. Appoint a 10th justice now, and the next time a justice leaves the court, let it shrink back to nine.

3. Trump should nominate Garland. Temporarily expanding the court from nine to 10 justices accomplishes nothing if President Trump simply chooses another candidate from the list that the Federalist Society has provided him. Trump should be part of the negotiations over how to fix the process. And he, McConnell, and Senate Democratic leader Chuck Schumer should all agree that the 10th justice will be none other than Judge Garland. Garland, a moderate, would be an ideal consensus choice; before McConnell nixed him, some Republican senators had said he was someone they could support.

Trump, needless to say, would have to demonstrate that he is capable of acting for the good of the country rather than simply indulging his animal instincts. It’s not likely. Then again, nothing I am suggesting here is likely.

The tragedy is that extreme polarization and partisan warfare are tearing down every institution of government, including the Supreme Court. I think the record is clear that Republicans are to blame far more than the Democrats. But they both need to be part of the solution — if there is to be any solution.

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Brett Kavanaugh has thrived in a culture that embraces sexual harassment

Judge Brett Kavanaugh (right) meets Sen. Chuck Grassley. Photo via Wikimedia Commons.

Previously published at WGBHNews.org.

Brett Kavanaugh’s accuser now has a name and a harrowing story to tell. Over the next few days, we can expect an avalanche of news stories and cable talk about Christine Blasey Ford and whether her allegations are enough to topple the Kavanaugh nomination.

But there’s a broader context to all of this, and journalists would be negligent if they fail to explore it. Simply put, Kavanaugh has been in close proximity to, and in some cases has benefited from, a culture of sexual harassment and assault his entire life.

The best known example is Kavanaugh’s work for the grand inquisitor himself, Kenneth Starr, the independent counsel who exposed Bill Clinton’s sexual relationship with Monica Lewinsky. Both then and now, the focus has been on Clinton’s sleazy, exploitative behavior. But his affair with Lewinsky was nobody’s business until Starr concocted a bizarre legal theory that it would shed light on Paula Jones’ sexual-harassment lawsuit against Clinton — thus dragging a secret sexual relationship into the public sphere and transforming it into a perjury trap for Clinton.

Kavanaugh was a full participant in what amounted to an unforgivable assault on Lewinsky’s character. You may have heard that Kavanaugh drafted a series of questions that the president would be required to answer under oath. The questions say much about what was rattling around in Kavanaugh’s mind. Here is one of them: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?”

Clinton may have been the subject of the investigation, but Lewinsky suffered the most. To this day she is an object of pity and derision, despite her admirable attempts to speak out and reclaim her life. Many years later Starr, in what was surely one of the most satisfying ironies of our time, resigned in disgrace from the presidency of Baylor University for covering upinstances of sexual assault involving the school’s football team.

If Kavanaugh’s assault on Monica Lewinsky was his most notorious brush with sexual harassment, it was by no means the only one. Earlier this year Kavanaugh said he had no knowledge of dirty jokes and naked pictures of women that appeals court judge Alex Kozinski shared with his law clerks. Kavanaugh was among those clerks, and was apparently one of Kozinski’s favorites, as the mentor introduced the mentee to the Senate in 2006 when Kavanaugh was nominated for an appeals court judgeship.

“Kozinski’s sexual comments — to both men and women — were legendary,” wrote another ex-Kozinski clerk, Heidi Bond, at Slate. “When I first arrived in chambers, the outgoing clerks suggested that we should watch ‘The Aristocrats,’ a documentary about a notorious dirty joke, to prepare ourselves for the upcoming year. Kozinski’s email list had hundreds of participants, and some of the jokes he shared were incredibly off-color.” Yet Kavanaugh, when asked about the matter, replied: “I do not remember any such comments.”

His reputation in ruins, Kozinski retired. Kavanaugh, as he had following the Starr investigation, skated away.

There is more. Kavanaugh’s opposition to abortion rights is not necessarily related to his toleration of sexual harassment, of course. But some of his actions stand out. Despite Kavanaugh’s denial, White House records show that he was involved in the nomination of Judge William Pryor of Arkansas to an appeals court position. Pryor is a notorious culture warrior, calling Roe v. Wade an “abomination” and harshly criticizing homosexuality. As an appeals court judge himself, Kavanaugh ruled against a 17-year-old undocumented immigrant’s request for an abortion, a decision that one of his colleagues called “unconstitutional” and “wrong.”

We are already hearing that Kavanaugh’s actions as a minor should not be held against him all these years later, regardless of how reprehensible they were and regardless of the lasting harm that Christine Ford said was done to her psyche. Surely there is something to the idea that the actions of an adult should be taken more seriously than those of a minor. There’s a line to be drawn, even if you might draw it in a different place than I would.

But consider that, just a few years after his alleged assault on Ford, he joined a secret club at Yale called Truth and Courage that was devoted to heavy drinking and was “organized around having sex with coeds,” according to Kristin Sherry, an alum who was interviewed by BuzzFeed News.

Or consider that Kavanaugh is on the verge of joining the Supreme Court thanks to the patronage of President Trump, who has bragged about sexually assaulting women — boasts that have been corroborated.

In the days and weeks immediately following Kavanaugh’s nomination, the mainstream consensus was that he was a fine fellow, but gosh, he’s awfully conservative. The sheen has worn off. There is a coherent story to be told about Brett Kavanaugh, and it is ugly — the story of a child of privilege whose rise has been constructed, in part, on the degradation of women. Are the media capable of telling that story? We’ll see.

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Beyond ‘Fear’: An ex-New York Times critic explains the cultural rot Trump exploits

Previously published at WGBH News.

We are in the midst of a book-inspired frenzy over Donald Trump’s the cruelty and mendacity. The legendary journalist Bob Woodward’s latest, “Fear: Trump in the White House,” has renewed our anguished questions over how this petulant, foul-mouthed racist could be elected president.

But though Woodward has described the what and the how of the Trump presidency, we must look elsewhere for the why. Trump did not spring out of nowhere; we had been slouching in his direction for a long time. As former president Barack Obama put it the other day: “It did not start with Donald Trump. He is a symptom, not the cause.” But a symptom of what, exactly?

Attempting to give us some answers is Michiko Kakutani. Her new book, “The Death of Truth: Notes on Falsehood in the Age of Trump,” provides some much-needed context to help us understand what happened to our democracy. The tools wielded by Kakutani, the former weekday book critic for The New York Times, are deep reading and cultural criticism. The result is not entirely satisfying. But she does offer some provocative observations the about social changes that made Trump not just possible, but inevitable. She writes:

It is unlikely that a candidate who had already been exposed during the campaign for his history of lying and deceptive business practices would have gained such popular support were portions of the public not somehow blasé about truth telling and were there not more systemic problems with how people get their information and how they’ve come to think in increasingly partisan terms.

Some of Kakutani’s targets are familiar. The internet, she argues, is partly responsible for a rise in anti-intellectualism that manifests itself in contempt for expertise and an embrace of “the wisdom of the crowd.” In an online universe in which scientific knowledge is too often regarded as elitist, anti-vaxxers and climate-change deniers flourish in their ignorance.

Kakutani is also sharp in her observations about how the media have shifted from a few outlets speaking with authority to a myriad of competing voices catering to every conceivable ideology, with audiences increasingly trapped inside filter bubbles determined by algorithms that we don’t understand.

Oddly enough, Kakutani blames some of these cultural changes on postmodernism, an academic theory generally associated with the left. The essence of postmodernism, Kakutani explains, is that “there are no universal truths, only smaller personal truths — perceptions shaped by the cultural and social forces of one’s day.” This type of thinking, she argues, has since been adopted by the right. It certainly can be seen in President Trump’s use of the term “fake news” to describe journalism he doesn’t like, or in the toxic fiction that Fox News and Breitbart are simply conservative counterparts to the Times and The Washington Post. But it’s hard to draw a connection between an esoteric academic theory and the outrageous conspiracies promoted by the likes of Alex Jones.

The firehose of disturbing news that comes out of the Trump White House on a daily basis is overwhelming. Bob Woodward’s book was preceded by a similar if less credible book by Michael Wolff, “Fire and Fury.” Many of the details offered by Woodward, in turn, were almost immediately confirmed by an anonymous op-ed piece in the Times, written by a “high official” in the administration. The talk these days is of the 25th Amendment and “Crazytown,” of documents filched off Trump’s desk to prevent him from signing them and of obscenity-laced rants demanding that his generals assassinate adversaries like Syrian dictator Bashar al-Assad.

At such a chaotic moment, Kakutani’s broader perspective is invaluable. She opens with Hannah Arendt’s warning that totalitarianism arises not from committed ideologues but from “people for whom the distinction between fact and fiction … no longer exist.” And she closes with the late media scholar Neil Postman, who is rapidly becoming the Tocqueville of our era. Postman’s 1980s classic, “Amusing Ourselves to Death,” predicted much of what is unfolding today by examining the effect of television on the public discourse. Kakutani quotes Postman: “Our priests and presidents, our surgeons and lawyers, our educators and newscasters need worry less about satisfying the demands of their discipline than the demands of good showmanship.”

Trump is nothing if not a showman — literally, as he has transitioned from reality-show star to reality-show president. There is little that is real or truthful about reality shows, and there is little that is real or truthful about the Trump presidency. In Kakutani’s telling, the lies that are at the heart of this malign enterprise are not a problem that could be corrected but, rather, their defining feature. It is a dispiriting conclusion, but these are the times in which we live.

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How June primaries, the instant runoff and nonpartisan elections could revive democracy in Mass.

WGBH News photo by Meredith Nierman.

Previously published at WGBHNews.org.

The Massachusetts primaries were a success — if by “success” you mean there was no obvious Russian interference, there were enough ballots for everyone, and none of candidates came to blows in the parking lot outside the local Elks hall.

But notwithstanding the excitement of Ayanna Pressley’s surprising win over longtime congressman Michael Capuano, you would have been hard-pressed to find an outbreak of civic engagement.

Secretary of State Bill Galvin had predicted that turnout would be around 15 percent — a pathetic figure that’s pretty much standard for primaries, and one more obstacle for challengers hoping to unseat better-known incumbents. Moreover, in the hotly contested Democratic primary for the 3rd Congressional District, Daniel Koh was leading a 10-candidate field early this morning with less than 22 percent of the vote. In other words, more than 78 percent of voters wanted someone else to succeed U.S. Rep. Niki Tsongas, who’s retiring.

Minuscule turnout and razor-thin victories by candidates who are supported by barely one-fifth of those who bothered to show up are deadly to the body politic. But it doesn’t have to be that way. With a reform-minded spirit and a willingness to try something new, we could reinvent elections in Massachusetts. Here are three ideas that could restore competition as well turn nonvoters into voters. What are we waiting for?

Move the primaries to June

Galvin didn’t have to designate Sept. 4 as primary day. But he didn’t have any good choices. Given when the Jewish holidays fall this year, he couldn’t have scheduled the primaries for either of the following two Tuesdays. But who says the primaries have to be held in September?

If you’ve been paying attention to primary contests in other states, you know that voters have been casting ballots all summer. The stretch between the July 4 and Labor Day is traditionally a time when many people set politics aside and concentrate on more compelling matters, such as the beach. That’s why I’d move the primaries to sometime in mid- or late June. New York does it with federal offices; you may recall that Alexandria Ocasio-Cortez’s unexpected victory in the primary for a congressional seat came on June 26. I would do the same in Massachusetts for both federal and state contests.

On the face of it, you might think a longer campaign is something to be avoided. Here’s why I think that’s wrong. A late-June primary would mean that candidates could run hard for two or three months in the spring, at a time when voters might be paying more attention. Televised debates would get bigger audiences. Challengers would be able to make their case in the high-attention months of April, May, and June rather than in the dog days of summer.

The switch would help general-election challengers as well. State Rep. Geoff Diehl, an obscure Republican, and former Patrick administration official Jay Gonzalez, a little-known Democrat, now have an eight-week sprint in which to make the case that they should defeat two popular incumbents — U.S. Sen. Elizabeth Warren and Gov. Charlie Baker, respectively. The challengers should have had the summer to put their campaigns together rather than fending off challengers from their own parties.

The good news is that both Galvin and his Republican opponent, Anthony Amore, support moving the primaries to the spring, as did Galvin’s Democratic challenger, Josh Zakim. So does The Boston Globe’s editorial page. To many this is one reform idea whose time has come.

Adopt the instant runoff

I’ve been arguing for this since 2000, and there are reasons to believe it might finally happen. Maine has adopted it. Cambridge has been doing it in municipal elections for years. The Boston Globe has endorsed it. The goal is to get past our winner-take-all elections, in which whoever comes in first is handed the victory, even if he or she attracts far less than a majority.

The instant runoff, also known as ranked choice, gives voters an opportunity to indicate their order of preference. If no candidate receives a majority of first-place votes, the last-place candidate is eliminated, and her supporters’ second-place votes are awarded to the remaining contenders. Candidates continue to be eliminated in this manner until someone has a majority. And if no candidate has a majority after the second-place votes are counted, the process is repeated with voters’ third choices, fourth choices, and so on. It’s like having a series of runoff elections, except that voters only have to go to the polls once.

The advantage of this is that the eventual winner might be someone who has more broad support among the electorate than the candidate who finishes first with less than a majority. As I’m writing this, Daniel Koh is just a little more than 600 votes ahead of Lori Trahan in the Democratic primary for the 3rd Congressional District, with a margin of 21.7 percent to 20.9 percent. A recount looms. In a 10-candidate field, though, it’s impossible to know which of them would prove to be more popular with voters who backed another candidate. For that matter, the consensus choice might be someone else altogether. The instant runoff would provide the answer.

For more information about ranked-choice voting, visit the website of the the nonprofit organization Voter Choice Massachusetts.

Switch to nonpartisan primaries

I’ll admit that I’m not as enthusiastic about this idea as I am about June primaries and the instant runoff. But despite Republican Charlie Baker’s popularity, Democrats have long had a stranglehold on politics in Massachusetts. Democrats control every statewide office except the governorship — both U.S. Senate seats, all nine congressional seats, and overwhelming majorities in both branches of the state Legislature. Consider that Pressley, following her exciting win over Capuano, will not even face a Republican opponent in November. That’s not healthy for democracy.

Nonpartisan primaries would simply mean that the top two finishers would face each other in the general election. They might be two Democrats, a Democrat and a Republican, two independents, a Democrat and a Libertarian, or whatever. Among other things, such a system might lead to the emergence of more moderate Baker-style Republicans, as right-wing candidates would no longer be assured of a spot on the November ballot simply by virtue of winning the Republican primary.

Nonpartisan primaries have been adopted in California. They have also long been in effect in cities like Boston, where both the mayor and the city council are elected without regard for party affiliation.

I would not eliminate party labels. But nonpartisan primaries could lead to more competition — especially for entrenched Democratic incumbents who coast to their party’s nomination and then face token Republican opposition (if that) in November.

The fact that not just Pressley but also challengers to several longtime legislators were successful shows that democracy in Massachusetts still has a beating pulse. But we can do better. And these are not the only ideas to improve our elections. Weekend-long voting would make it easier for many people to get to the polls than the one-day Tuesday ritual. Dividing the state into, say, three congressional districts instead of nine, with each district electing three people, could give a boost to Republicans and minority parties.

After Tuesday’s low-turnout exercise in what is supposed to be participatory democracy, though, changing the way we hold primaries and moving past winner-take-all ought to be the first order of business.

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A couple of laments about our undemocratic primaries

Photo (cc) 2008 by Dan Kennedy.

A couple of laments about the Massachusetts primaries, which will be held next Tuesday, the day after Labor Day.

First, voters traditionally don’t tune in to politics until after Labor Day. Secretary of State Bill Galvin had no good options given the timing of the Jewish holidays this year. But the Sept. 4 date gives a huge advantage to incumbents who might otherwise be in trouble, including Galvin himself. I don’t like the idea of an August primary, which a number of states have adopted. But why not several months earlier? New York holds its primaries in June. Sounds good to me.

Second, winner-take-all elections are fundamentally anti-democratic, especially in multi-candidate fields. No one would be surprised if the winner of the Democratic primary in the Third Congressional District, where Niki Tsongas is retiring, got 20 percent of the vote — or less. For that matter, U.S. Rep. Mike Capuano, who faces a tough challenge from Boston City Councilor Ayanna Pressley in the Seventh, won the Democratic primary with just 23 percent when he was nominated for the first time in 1998 with a 10-candidate field. At the very least, the top two finishers should meet in a runoff. Even better, adopt the instant runoff so that voters can rank candidates by their order of preference.

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Remembering John McCain: Barreling through S.C. on the Straight Talk Express

John McCain in Portsmouth, New Hampshire. Photo © 2007 by River Bissonnette.

Previously published at WGBHNews.org.

We lost a great American on Saturday. Sen. John McCain was a complicated man, but his integrity, courage, and fundamental decency were beyond reproach. In February 2000, I covered the South Carolina showdown between McCain and George W. Bush for The Boston Phoenix. Bush had just lost the New Hampshire primary to McCain and was hanging on for dear life. Bush defeated McCain in South Carolina and went on to win the presidency. I think I had more fun reporting this story than just about any other I can remember. Today, courtesy of the Northeastern University Archives, WGBH News republishes my story in full.

GREENVILLE, S.C. — The Straight Talk Express — a bus that’s expanded into a three-vehicle caravan since John McCain’s unexpectedly large victory in New Hampshire — has just pulled up in front of City Hall. A crowd of people has gathered, waiting expectantly for the candidate. Among them is Geno Church, a city employee who’s holding his 5-year-old daughter, MacKenzie, so she can get a closer look. She points to a huge sign on one of the buses that says “McCain” and asks, “Daddy, why does that sign say ‘Media’?”

Out of the mouths of babes and all that.

The McCain campaign is many things. An insurgent effort by an underfunded challenger against an establishment candidate — George W. Bush — who’s been anointed with more than $65 million in contributions. A crusade to clean up a hopelessly corrupt political system. A book tour to promote “Faith of My Fathers,” which, McCain jokingly but carefully notes at every stop, was published by Random House and is available from Amazon.com for $24.95. (It’s working: “Faith of My Fathers” was Amazon’s 36th hottest-selling book as of Tuesday.)

Above all else, though, the McCain campaign is a media moment. The press has fallen hard for McCain, harder than it fell for Bill Clinton in 1992, harder than it fell for Gary Hart in 1984 or George McGovern in 1972. Aboard the Straight Talk Express, it’s clear that the reporters believe they’re in the midst of something historic — something akin, perhaps, to the 1960 campaign of John F. Kennedy, the last time a war hero with a sense of humor and a proclivity for mixing it up with the press ran for president.

“It’s kind of a running dialogue that goes on on the McCain bus. The extraordinary thing about the McCain campaign is that everything is on the record. I’ve never seen anything like it,” says veteran Boston Globe reporter Curtis Wilkie. Wilkie — one of the characters who pops up in Timothy Crouse’s classic on the 1972 campaign, “The Boys on the Bus” — calls McCain’s dealings with the media something of a “throwback” to the days when “you didn’t have nearly as many press people running around, and in general the candidates were more accessible.” And for the press, there is no higher value than accessibility.

It’s not that the press is consciously in the tank for McCain, or that he escapes all critical scrutiny. The beat reporters say they’re careful not to let their easy access to the candidate twist their coverage. But the cumulative effect of McCain’s blunt candor, his nonstop, on-the-record chatter, his sense of brio and his insouciance, has been to create an aura of goodwill in which the candidate — unlike perhaps any other national politician — automatically receives the benefit of the doubt.

Collectively — with, of course, certain exceptions (Time magazine broke from the pack last week with excellent pieces on McCain’s ultraconservative ideology and lack of a substantive agenda beyond campaign-finance reform) — the media have concluded that McCain is capable of transcending his unremarkable career in the Senate, his run-of-the-mill influence-peddling, and his doctrinaire conservatism to reform a political system that has grown hopelessly corrupt and out of touch with average Americans. Are they right? Continue reading “Remembering John McCain: Barreling through S.C. on the Straight Talk Express”

Giuliani’s ‘truth isn’t truth’ gaffe was a howler. But it was also taken out of context.

Previously published at WGBHNews.org.

There is nothing reporters and pundits love more than a mind-boggling gaffe. Rudy Giuliani achieved what you might call Gaffe Apotheosis on Sunday when he lectured Chuck Todd that “truth isn’t truth.”So let’s savor it, make memes out of it (Todd told us we should!), and throw it in the faces of President Trump’s allies whenever they repeat the falsehoods that spew forth from this administration. But let’s not pretend we don’t understand the perfectly reasonable point that Giuliani was trying to make.

As is the case with many political gaffes, the full effect of Giuliani’s howler depends on taking it out of context. The former New York mayor, now a member of Trump’s legal team, was asked by “Meet the Press” host Todd why the president won’t simply sit down and answer questions from special counsel Robert Mueller.

“I am not going to be rushed into having him testify so that he gets trapped into perjury,” Giuliani responded. “And when you tell me that, you know, he should testify because he’s going to tell the truth and he shouldn’t worry, well that’s so silly because it’s somebody’s version of the truth. Not the truth.”

Todd: “Truth is truth.”

Giuliani: “No, it isn’t. Truth isn’t truth.”

Giuliani knew instantly that he had stepped in a big, steaming pile, and he tried ineffectively to push back. The damage was done. But think about what Giuliani was saying: If Trump answers questions under oath, he’ll say things that contradict what others have said under oath. And that could set up Trump for a perjury charge. Giuliani expanded on that point a short time later, arguing that if Mueller had to choose between Trump’s sworn statements and those of former FBI director James Comey, Mueller would choose Comey, whom Giuliani identified — or, should I say, derided — as “one of his best friends.”

Now, set aside our knowledge that Trump has spoken falsely more than 4,000 times since he became president, and that Giuliani has a credibility problem of his own. Giuliani was actually making sense in saying that Mueller would have to choose between competing versions of the truth, and that he might be disinclined to believe Trump. But the inartful (OK, idiotic) way he expressed himself is all we’ll remember. This is mostly Giuliani’s fault, but it’s partly the media’s as well. Because this is what we love.

Want some more examples? Before Sunday, perhaps the most memorable gaffe by a Trump official was uttered by Kellyanne Conway, who used the phrase “alternative facts” in an interview with the very same Chuck Todd. Appearing on Jan. 22, 2017, Conway sought to explain White House press secretary Sean Spicer’s obviously false claim that Trump’s Inauguration Day crowd was the largest in history. Conway didn’t push back as hard as Giuliani did when challenged by Todd. But, later in the interview, she said Spicer was simply relying on different sources of information.

“I don’t think you can prove those numbers one way or the other,” she said. “There’s no way to really quantify crowds. We all know that. You can laugh at me all you want.” Yes, I understand that the small size of Trump’s crowd is factually beyond dispute. But Conway’s spin was reasonable, if wrong. She was not invoking Orwell.

On a more serious level, Hillary Clinton has been castigated for years over a disingenuous reading of her Benghazi testimony before a Senate hearing in 2013. “Was it because of a protest or was it because of guys out for a walk one night and decided they’d go kill some Americans?” Clinton said. “What difference — at this point, what difference does it make?” How callous! But as PolitiFact observed in analyzing Clinton’s testimony, she continued:

It is our job to figure out what happened and do everything we can to prevent it from ever happening again, Senator. Now, honestly, I will do my best to answer your questions about this, but the fact is that people were trying in real time to get to the best information…. But you know, to be clear, it is, from my perspective, less important today looking backwards as to why these militants decided they did it than to find them and bring them to justice, and then maybe we’ll figure out what was going on in the meantime.

The journalist Michael Kinsley once memorably defined a gaffe as an inadvertent statement of the truth. Sometimes, though, it’s a deliberate statement that you think won’t become public. That was the case in 2008, when Barack Obama told a group of his supporters what he thought of Clinton-leaning voters in poorer industrial cities: “They get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”

Four years later, Mitt Romney said at a fundraiser that 47 percent of the electorate would vote for Obama because they “are dependent upon government,” “believe that they are victims,” and “pay no income tax.” Both Obama and Romney spoke as they did because there were no reporters present, but their damaging remarks became public anyway.

For politicians and public figures, the solution to the gaffe challenge is obvious: Don’t step on your message with language that will seem clumsy, dumb, or insensitive if it’s taken out of context, as happened with Giuliani, Conway, and Clinton. And don’t speak your mind on the assumption that the media aren’t listening, as was the case with Obama and Romney. These things have a way of becoming public knowledge.

But there are lessons for the media, too. No one imagines that they should stop reporting gaffes, especially when they play out on live television. But even as Giuliani was making a mess of his interview, he was also saying something newsworthy: that Trump shouldn’t speak to Mueller for fear that he’ll be charged with perjury even if he speaks truthfully. You can agree, you can disagree, or you can denounce Giuliani’s statement as an outrageous attack on the rule of law. What the media shouldn’t do is overlook it in favor of cheap — if well-deserved — mockery.

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Up with Hannity: Analyzing Kavanaugh with Trump’s most vociferous defender

Sean Hannity. Photo (cc) 2015 by Gage Skidmore.

Previously published at WGBHNews.org.

Monday was a big day for Sean Hannity, the conspiracy-minded Fox News Channel host. After all, it’s not every day that the president of the United States — even one you’re as close to as Hannity is to Donald Trump — schedules the unveiling of his choice for the Supreme Court in order to give you a ratings boost. According to Gabriel Sherman of Vanity Fair, some White House staff members believed Trump did exactly that. Sherman tweeted that Trump may have chosen 9 p.m. at the behest of his sleazy new communications director, Bill Shine, the former head of Fox News.

Despite this propitious opportunity, Hannity didn’t really deliver the goods, prattling on for an hour with his usual talking points and his usual guests. He didn’t quite come off as bored, but his anger and his enthusiasm seemed rote. Indeed, there was a play-acting quality to the proceedings in general. Both Republicans and Democrats know that the president’s choice, Court of Appeals Judge Brett Kavanaugh, is pretty much a lock to win confirmation.

Still, three themes emerged that I suspect we will hear over and over during the next few months.

The first is that we are a “constitutional republic.” President Trump made that point in his opening remarks, and Hannity repeated it several times. That might seem like a statement of the obvious. So why keep bringing it up? I suspect it’s because we are in the midst of a prolonged period of minority rule. A number of articles have been published recently documenting growing restiveness among the powerless majority.

Consider: Trump is president because for the first time in more than a century the winning candidate captured the Electoral College despite losing the popular vote by a wide margin. (Remember, the contest between George W. Bush and Al Gore ended in a virtual tie.) That’s not all. By 54 percent to 42 percent, voters favored Democratic candidates for the U.S. Senate in 2016. And the Republicans’ victory in House races paid off in numbers disproportionate to their razor-thin margin of 49 percent to 48 percent.

No, that’s not the way we count votes in Senate and House elections. But it does show that Democrats have been shut out of power even though voters prefer them. Mitch McConnell’s deeply corrupt refusal to allow a vote on President Barack Obama’s Supreme Court nominee, Merrick Garland, only served to underscore this anti-majoritarian trend. So expect to see a lot of talk in the weeks to come from Hannity and other Trump supporters that the United States isn’t really a democracy, and why that’s a Good Thing.

The second talking point I noticed is that the right wants to cast Democrats as opponents of fair play by declaring their opposition to Kavanaugh before giving him a chance to make his case. For instance, conservatives are having some fun with a statement from the Women’s March, clearly written before the Kavanaugh announcement, saying that if “XX” is confirmed it will be “a death sentence for thousands of women.”

“They would object to anyone this president nominated,” Fox News’ Shannon Bream told Hannity. “They’re going to come after him because that’s what they do,” added Jay Sekulow, a lawyer who’s a veteran of right-wing causes as well as a member of Trump’s legal team. Hannity himself warned his viewers that “the smearing, the besmirching, the fear-mongering … this all-out effort to Bork Judge Kavanaugh” has already begun. Hannity added: “They are going to lie to you. That’s what they do. You have to rely on your heart and mind and do your own research.”

Here’s the problem with the notion that the instant opposition to Kavanaugh is somehow unfair: During the campaign, Trump put out a list of 11 judges from which he said he would choose. The list was later expanded to 25. Hannity and his guests referred to the list several times Monday night as an example of how “transparent” Trump has been. Well, you can’t have it both ways. Democrats and liberals have known for many months that Kavanaugh could be picked. It would have been a surprise if they weren’t prepared with an instant reaction to every XX on the list.

The third talking point may prove to be the most substantive, especially if there’s any chance of persuading a few Republicans opposed to runaway executive power to vote against Kavanaugh. (Ha ha! I can’t believe I just typed that.) Hannity made several uneasy references to Kavanaugh’s arguing in a 2009 law review article that a president should not be subject to criminal or civil proceedings while in office, and he noted that this was a reversal of Kavanaugh’s earlier position.

In fact, Kavanaugh did a complete flip-flop. Back when he was working on Kenneth Starr’s inquisition into the great crime of whether Bill Clinton had lied about oral sex, Kavanaugh believed that the president should not get a “break,” as he put it. Now, though, Kavanaugh thinks the president should be held harmless until after he leaves office.

“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote in the Minnesota Law Review. “To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during his deposition in the [Paula] Jones case if nothing else.”

Now, of course, we have another president facing legal jeopardy on a variety of criminal and civil fronts, from possible collusion with the Russian government to the alleged use of his charitable foundation for personal gain. It’s not difficult to understand why Hannity and his guests on Monday stepped carefully around Kavanaugh’s change of heart, even if they are secretly delighted.

Democrats, on the other hand, wasted no time in picking up on that point. On MSNBC, Sen. Elizabeth Warren said that “Donald Trump got the trifecta” — a nominee who would likely vote to overturn Roe v. Wade, kill off the Affordable Care Act once and for all, and, if necessary, help Trump “if he gets into serious legal trouble.”

That one of Bill Clinton’s persecutors may emerge as a defender of Trump’s possible legal offenses is in some cosmic sense an apotheosis of hypocrisy, even if on a personal level Kavanaugh’s reversal was sincere. I don’t expect Hannity and his crew to defend that hypocrisy effectively. But I have no doubt that they’ll defend it loudly, repetitively, and disingenuously, which in the age of Trump is all that seems to matter.

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Dr. Vox explains how Trump has exposed the right as a collection of grievances

Important thread by David Roberts of Vox on how President Trump has exposed the right for what we knew in our hearts it was all along: an inchoate collection of grievances uninterested in policy or ideas. He’s also got some smart things to say about what’s wrong with The New York Times’ conservative columnists, who are monolithically anti-Trump. Start here:

Roberts’ views are somewhat related to my recent WGBH News column on the irrelevance of the anti-Trump right, although I hold them in higher regard than he does.

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