The Daily Parker

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Second look at the federal electors story

In the articles I linked earlier today, one noted at 10th Circuit decision about so-called "faithless electors:"

The 10th U.S. Circuit Court of Appeals ruled Tuesday that the Colorado secretary of state violated the Constitution in 2016 when he removed an elector and nullified his vote because the elector refused to cast his ballot for Democrat Hillary Clinton, who won the popular vote.

The Electoral College system is established in the Constitution. When voters cast a ballot for president, they are actually choosing members of the Electoral College, called electors, who are pledged to that presidential candidate. The electors then choose the president.

Electors almost always vote for the popular vote winner, and some states have laws requiring them to do so.

But the split decision by a three-judge panel on the Denver appeals court said the Constitution allows electors to cast their votes at their own discretion. "The state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right," the ruling said.

Colorado's current secretary of state, Jena Griswold, decried the ruling Tuesday in Colorado but did not immediately say if she would appeal.

"This court decision takes power from Colorado voters and sets a dangerous precedent," she said. "Our nation stands on the principle of one person, one vote."

Except that the Constitution doesn't. Instead, it says that the states choose their electors, and the electors vote for president. The entire point of that system is to remove the people from the equation entirely. To have the people choose the president would require a Constitutional amendment, which will never happen, for the simple reason that the states who would lose their disproportionate power in selecting the president would have to vote for the amendment.

What we can say, however, is that the American Left hates the Electoral College right now. This has more to do with the rightward shift of small states than any actual policy differences, of course. But twice in the last 20 years, the winner of the popular vote lost the electoral vote. In both cases the popular winner was a Democrat, and the electoral winner a hard-right Republican.

Unfortunately, the system is working as designed. It's supposed to give disproportionate power to smaller, more-agricultural states. In one of history's ironies, New Jersey proposed having each state get one vote in Congress. Today, New Jersey is 100% urban, according to the Census Bureau, and Wyoming has the most power per person in the country. (Let me tell you how happy I am that a bunch of old, white ranchers has almost 8 times my voting power per person in the Senate and about double my power in the Electoral College.)

I also found it interesting that the dissenting judge in the case would have held that the electors simply had no standing to sue, because the court could grant them no relief. I'm glad the other two let the case go forward. And I'm interested to see if it makes a difference in 2020.

Mid-morning link roundup

So much to read, so much eye strain from the fluorescent lights:

And finally, this year's Punderdome competition took on food; the audience ate it up.

Three unrelated articles

First, New York Times film critic A.O. Scott takes a second look at the 1999 film Election:

The movie has been persistently and egregiously misunderstood, and I count myself among the many admirers who got it wrong. Because somehow I didn’t remember — or didn’t see— what has been right there onscreen the whole time.

Which is that Mr. M is a monster — a distillation of human moral squalor with few equals in modern American cinema — and that Tracy Flick is the heroine who bravely, if imperfectly, resists his efforts to destroy her. She’s not Moby-Dick to his Ahab so much as Jean Valjean to his Inspector Javert.

Second, with Lake Michigan at record-high water levels for the second month in a row, several of Chicago's beaches have disappeared:

This year, the buoyant water has swallowed at least two Chicago beaches entirely and periodically closed others. It has swiped fishermen from piers, swimmers from beaches and submerged jetties, creating hazards for boaters. It has flooded heavily trafficked parts of lakefront bicycle and pedestrian pathways, leaving some stretches underwater and others crumbling.

But perhaps the most worrisome aspect of this summer is that these perils have occurred while the lake has remained mostly calm.

“Fall is the time of the year when wave conditions are historically the most severe on the Great Lakes,” said David Bucaro, outreach manager at the U.S. Army Corps of Engineers Chicago District. “We’re at a calmer period right now. There’s been some summer storms. But that October, November time period is when we really experience historically the most powerful coastal storms. That’s the conditions that we’re monitoring and are most concerned with.”

Should be fun this fall.

Next, writing for the LA Times, Rebecca Wexler points out that data-privacy laws giving law enforcement the power to snoop on electronic devices is deeply unfair to defendants for an unexpected reason:

Social media messages, photo metadata, Amazon Echo recordings, smart water meter data, and Fitbit readings have all been used in criminal cases. The new laws would limit how defendants can access this key evidence, making it difficult or impossible for defendants to show they acted in self-defense, or a witness is lying, or someone else is guilty of the crime.

The California Consumer Privacy Act, which was approved in 2018, allows law enforcement officers to obtain data from technology companies and prohibit those companies from immediately notifying the person they are investigating. Such delayed notice may be necessary to investigate someone who is dangerous or likely to destroy evidence or flee. But the law does not give defense investigators the same right to delay notification to witnesses or others — who might well pose a threat to the defendant — when they subpoena data from tech companies as part of the defense’s case.

I will now rejoin a long-running data analysis project, already in progress.

The thing you're not supposed to look at

So, it turns out, the President of the United States is a racist bigot, who has calculated that the best way to win re-election is to smash all the norms we've had for a century and a half.

OK, noted. Now let's see what all that sound and confusion might be covering up? How about the dismantling of the administrative state and the removal of any meaningful checks on corporate power:

There are daily proof points that the former lobbyists in the administration are advancing Trump’s quest to eviscerate the administrative state. Just last night, for example, the Environmental Protection Agency quietly rejected a petition by environmental and public health groups to ban a widely used pesticide that has been linked to neurological damage in children, even though a federal court said last year there was “no justification” for such a decision.

“The Obama administration had proposed in 2015 to revoke all uses of chlorpyrifos after EPA scientists determined that existing evidence did not meet the agency’s threshold of a ‘reasonable certainty of no harm,’ given exposure levels in Americans’ food supply and drinking water,” Brady Dennis and Juliet Eilperin report. “EPA staffers cited studies of families exposed to it in apartment buildings and agricultural communities that found lower birth weight and reduced IQ, among other effects. But before the ban was finalized, in March 2017, then-EPA Administrator Scott Pruitt rejected the agency’s own analysis, saying the agency would reassess the science underpinning that decision.”

Part of the battle to deconstruct the administrative state is a war of attrition. Two research agencies at the Agriculture Department are uprooting from D.C. to Kansas City this fall, for instance, but many staffers have decided to give up their jobs rather than move, prompting concerns of hollowed-out offices unable to adequately fund or inform agricultural science.

This is the flipside, the actual goal, of all the anti-American rallies and palling around with terrorists that the president has done in his administration. All of that is just to stay in power. It's what he has done with the power that will have the longest and most dangerous effects on the country.

SCOTUS embraces partisanship

Remember when US Senator Mitch McConnell blocked the confirmation of Merrick Garland to the US Supreme Court because he could? And when I and lots of others warned that the election of 2016 would have far-reaching consequences? Good morning, it's the last day of the Supreme Court's term, and they are publishing their far-reaching consequences to the world.

In a decision that surprised no one but saddened a lot of people who believe the Court has drifted into naked partisanship, the five Republican-appointed justices voted against the minority parties of North Carolina and Maryland, deciding that gerrymandering was "a political question:"

The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.

When I was in law school, my constitutional law professor joked that "political question" means "we can't come up with anything logical that will pass a smell test." As Justice Elena Kagan wrote in her dissent, "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people."

Let's not gloss over this: the Republican-appointed justices voted for their own party.

Maryland, like Illinois, California, New York, and Massachusetts, already have Democratic majorities. Sure, this decision means Republicans won't ever again have anything approaching real representation in those states. But Democratic voters already outnumber Republicans in North Carolina, Texas, Florida, and Pennsylvania. So this decision very much favors the Republican party, and will enable Republicans to hold on to power even as their numbers dwindle over time. Both of which, I don't need to point out, are happening.

So this decision makes explicit what everyone already knew: the Republican-appointed justices are Republicans first, justices second. This was a party-line vote, not a conservative vs. liberal vote, and it diminishes the Court.

The Court also decided today that the White House explanation for its proposed citizenship question was so much bullshit and sent the case back to the lower courts, meaning the Commerce Dept. probably won't put it on the forms they send out next spring. Chief Justice John Roberts' opinion for a unanimous court, however, held that Commerce Secretary Wilbur Ross lied about the rationale for putting the question on the 2020 form, but there was nothing wrong with the question itself. This decision resulted in five separate concurrences and dissents, with the Republican justices generally supporting the question and the other justices not.

In other words, the Republican justices couldn't come up with a rationale that supported their party that could pass the laugh test in this case either, but also couldn't call it a "political question," because Ross was just too incompetent at lying to help them. This isn't a victory for anyone; this is an own goal by the GOP.

That's right. We live in a country that still has the rule of law because the ruling party are too incompetent to do authoritarianism correctly. (It helps that authoritarians tend to incompetence by definition.) And the rope-a-dope strategy the Democratic Party are currently using just isn't working.

Rethinking the surveillance society

Via Bruce Schneier, San Francisco-based "computer guy" Maciej Cegłowski put up a cogent, clear blog post last week showing how we might better regulate privacy:

Until recently, ambient privacy was a simple fact of life. Recording something for posterity required making special arrangements, and most of our shared experience of the past was filtered through the attenuating haze of human memory. Even police states like East Germany, where one in seven citizens was an informer, were not able to keep tabs on their entire population. Today computers have given us that power. Authoritarian states like China and Saudi Arabia are using this newfound capacity as a tool of social control. Here in the United States, we’re using it to show ads. But the infrastructure of total surveillance is everywhere the same, and everywhere being deployed at scale.

Ambient privacy is not a property of people, or of their data, but of the world around us. Just like you can’t drop out of the oil economy by refusing to drive a car, you can’t opt out of the surveillance economy by forswearing technology (and for many people, that choice is not an option). While there may be worthy reasons to take your life off the grid, the infrastructure will go up around you whether you use it or not.

All of this leads me to see a parallel between privacy law and environmental law, another area where a technological shift forced us to protect a dwindling resource that earlier generations could take for granted.

The idea of passing laws to protect the natural world was not one that came naturally to early Americans. In their experience, the wilderness was something that hungry bears came out of, not an endangered resource that required lawyers to defend. Our mastery over nature was the very measure of our civilization.

But as the balance of power between humans and nature shifted, it became clear that wild spaces could not survive without some kind of protection.

Read the whole thing. He makes a compelling case for regulating privacy the same way we regulated the environment.

Getting away with it

President Trump's two biggest liars supporters made news today, one by quitting, and the other by refusing to.

First, the president announced yesterday that Press Secretary Sarah Sanders would leave at the end of the month. Though it remained unclear whether Sanders knew about this before the Tweet, she confirmed she will depart government service in two weeks, after successfully destroying the credibility of her office over the past two years:

The White House press secretary—the office, if not the person—is an outgrowth of the idea that, in a democracy, information matters, and facts matter, and while politicians and the press may tangle and tussle, they are ultimately on the same team. Sanders, who ascended to the press-secretary role in July of 2017, after the brief and peevish tenure of Sean Spicer, publicly rejected that idea. To watch a Sanders press conference, or to watch her representing the White House on cable news, was to be confronted with a vision of America that is guided by political Darwinism—an environment in which everything is a competition, with the winner determined by who can shout the loudest, who can distract the most effectively, who can get in the best insult before the time for questioning is over.

Here is some of the misinformation Sanders has spread on behalf of the White House: She has insisted that her boss never “promoted or encouraged violence,” although Donald Trump, among many other such promotions, said of a protester who’d been ejected from a 2016 rally, “I’d like to punch him in the face.” She has outright dismissed the stories of the multiple women who have accused Trump of sexual abuse as lies. She has told reporters that she’d heard from “countless” FBI agents who were happy that Trump had fired James Comey in 2017; she would later characterize that, to Robert Mueller, as a mere “slip of the tongue.”

Her broader legacy, though, is an acquiescence to the idea that facts themselves have a political bias. The agent of a president who has transformed “fake news” from an offhanded insult into a democratic anxiety, Sanders has used her powerful pulpit to promote the “Fake News Awards,” her boss’s carnivalesque attempt to institutionalize his mockery of the American media. She has accused reporters of “purposefully misleading the American people.” She has deflected; she has belittled; she has eye-rolled; she has condescended; she has obfuscated; she has misled; she has lied. And she has treated it all as a battle to be won. So many of the public interactions Sanders has conducted with reporters—whether Acosta or April Ryan or Jim Sciutto or Brian Karem or the many other members of the press who are charged with reporting on the daily doings of the White House—have been wars in miniature. And, day by day, the martial logic lurking in the way Americans talk about their politics—the campaign and the press corps, the war room—has been made ever more literal. What is true about the world we all navigate, together? That becomes a less important question than who is winning in it.

Margaret Sullivan calls Sanders "the disdainful Queen of Gaslighting."

Meanwhile, after years of obvious, repeated violations of the Hatch Act (prohibiting government employees from making public political statements), the Office of Special Counsel recommended that the White House fire Kellyanne Conway. The Trump-appointed OSC head made this recommendation. Conway's response? "Blah, blah, blah:"

It’s not that Conway is unaware of the rules. She’s openly thumbed her nose at them. In a May interview, when asked about overstepping the rules, she replied, “If you’re trying to silence me through the Hatch Act, it’s not going to work … Let me know when the jail sentence starts.”

Her cavalier attitude toward the law, while galling, is also probably safe. The Hatch Act is written with the understanding that the president would not want his aides flagrantly and wantonly violating the law, and only the president can fire a senior aide for violating the law. In the Trump administration, that has been revealed as a loophole, since this particular president has no inclination to punish violations that benefit him. (One of the most outspoken critics of Trump’s disrespect for laws and regulations has been the longtime Republican lawyer George Conway, who has used his Twitter feed to criticize the president. He also happens to be married to Kellyanne Conway. As of this writing, George Conway had not yet commented.)

We need to get these people out of office as soon as legally possible. Unfortunately, they can still do a lot of damage between now and January 2021.

Incomprehensible privacy policies

Kevin Litman-Navarro, writing for the Times, analyzed dozens of privacy policies online for readability and brevity. The situation is grim:

The vast majority of these privacy policies exceed the college reading level. And according to the most recent literacy survey conducted by the National Center for Education Statistics, over half of Americans may struggle to comprehend dense, lengthy texts. That means a significant chunk of the data collection economy is based on consenting to complicated documents that many Americans can’t understand.

Despite efforts like the General Data Protection Regulation to make policies more accessible, there seems to be an intractable tradeoff between a policy’s readability and length. Even policies that are shorter and easier to read can be impenetrable, given the amount of background knowledge required to understand how things like cookies and IP addresses play a role in data collection.

“You’re confused into thinking these are there to inform users, as opposed to protect companies,” said Albert Gidari, the consulting director of privacy at the Stanford Center for Internet and Society.

As data collection practices become more sophisticated (and invasive), it’s unlikely that privacy policies will become any easier to comprehend. And if states continue to draft their own data protection laws, as California is doing with its Consumer Privacy Act, privacy policies could balloon with location-specific addendums.

Litman-Navarro called out the BBC for its readable, short policy that explains to normal people exactly how the Beeb will use their data. He also called out AirBnB for the opposite: a lawyerly document of incredible length that tells users nothing.

Here at the Daily Parker, we only collect your personal information (specifically, your email address and name) if you give it to us through the Comment form, and we don't show your email address to anyone. Sometimes we will use it to get in touch with you directly about a comment you've left. Otherwise we treat it as we treat our own private information. Clear?

How many lawsuits is Eddie Lampert party to?

Two made the news this week. First, Lampert has sued Sears (which he owns) for not conveying property that his investment firm bought from the doomed retailer:

Lampert's Transform is accusing the Sears estate, a bankrupt shell entity that is winding down under court supervision, of multiple wrongs including breaking the agreement by holding on to the chain's headquarters in Illinois. The estate is also intentionally delaying payments to vendors and trying to shift $166 million in accounts payable costs, according to the Transform complaint filed on Saturday.

The allegations mirror those made in court filings from Transform earlier this year. The Sears estate also sued Lampert, U.S. Treasury Secretary Steven Mnuchin and others last month, claiming they wrongly transferred $2 billion of company assets beyond the reach of creditors in the years leading up to the retailer’s bankruptcy.

Meanwhile, in another case, Lampert filed court documents in which he threatens not to pay $43m in severance payments he promised to make:

Lampert also denied that he is responsible for making some payments to creditors he says Sears Holdings is trying to force him to pay, according to the filing. Sears Holdings is the bankrupt remnants of the old Sears. It exists only to settle claims against it involving its few remaining assets.

Lampert had previously agreed to pay the severance to workers who lost their jobs before and during Sears' bankruptcy. Creditors objected to Sears paying severance to people laid off before the bankruptcy, so those workers never received an exit package.

Lampert's attorneys told the bankruptcy court that Lampert and his hedge fund ESL were the best owners to help workers who lost their jobs in various rounds of store closings.

But in the latest court documents, ESL said it wouldn't make the severance payments because Sears didn't give the hedge fund all of the assets it spelled out in ESL and Lampert's agreement to buy Sears. That included the amount of store inventory originally promised by Sears, as well as the company's headquarters in suburban Chicago.

Wow, he really wants to win Worst CEO of the Century, doesn't he? And remember, Lampert never cared about Sears as a going entity; he has always and only wanted the land Sears owns. What a schmuck.

Laughed out of court

Federal judge Amit Mehta could not believe the arguments the president's lawyer, William Consovoy, made on Monday:

Consovoy, a beefy former law clerk to Justice Clarence Thomas, offered two related points:

(A) Congress can’t issue a subpoena or otherwise probe a president unless it is doing so for a “legitimate legislative purpose.”

(B) Any “legitimate legislative purpose” Congress could conceivably devise would be unconstitutional.

As a result, Consovoy argued, Congress can’t investigate to see if a law is being broken, can’t inform the public of wrongdoing by the executive and can’t look for presidential conflicts of interest or corruption, because that would be “law enforcement.”

I can't believe these arguments either. Dana Milbank suggests that Consovoy expects to drag out the appeals process and essentially run out the clock on Congress's ongoing investigations.

This may explain why Democratic activist Tom Steyer released this ad yesterday:

Pretty damning stuff. And it gets to the frustration that many of us feel.

I'm willing to give the House Democrats more time. But just a little. Because we need to get the facts out there before the next election.