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Curt Bentley is an attorney practicing commercial litigation, non-profit law, and intellectual property law in Utah at his firm Bentley Briggs & Lynch. In his spare time, he attempts to impersonate a jazz pianist, gardens, and dodges rattlesnakes and stirs up other trouble while running on Utah's amazing trails.

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John Swallow’s Attempt to Intimidate the Utah Legislature

June 15, 2013 by 1 Comment

Sometimes, when practicing as a lawyer, the most difficult arguments to respond to are the ones that are so ridiculous that you have a hard time even fathoming what to say.

I feel like John Swallow put me in that position last night, when the guys at Utah Political Capitol released a letter from John Swallow’s attorneys to John Fellows, the general counsel of the Utah legislature, on the subject of Swallow’s potential impeachment.

The substance of the letter tracks what John Swallow has been telling any (perceived) sympathetic or wavering ears lately: that there is no legal basis upon which to impeach him because he hasn’t been charged with or convicted of a crime and any other alleged ethical lapses occurred prior to him assuming the office of Attorney General.

The arrogance of this move astounds me — not just because the argument is obviously incorrect, which it is.  I’m astounded because this is such an insult to the legislature, the courts, and the people of this state.  It’s the very definition of refusing to accept responsibility, acting as a bully, and claiming to be above the law.

I try not to engage in hyperbole.  But I’m blown away by this.  And it’s got me ticked off.

Swallow’s letter (which he clearly wanted to get in the hands of legislators prior to their meeting on impeachment this coming Monday) was apparently written in response to the following statement by Mr. Fellows:

“Because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere in the process, including declining to second guess the legislative branch on the meaning and scope of the terms ‘high crimes, misdemeanors, or malfeasance in office.’”

John Swallow doesn’t like that language because it suggests to legislators that, due to the principle of separation of powers, courts are not likely to second-guess their impeachment decision.  That’s true, and for good reasons that I’ll talk about below.

But it’s bad news for Swallow, who wants to initimidate legislators into refusing to impeach on the fear that they’ll be censored for overstepping their authority by the Utah Supreme Court.

The Letter.

So John Swallow has asked his attorneys to respond, and in this letter they go on to assure the legislature’s general counsel that “[w]e have researched Utah law on the grounds for impeachment” and ofer to “share the results of that research in hopes that the legislature will recognize that any such proceedings under the circumstances presented here, are unwarranted.”  (PS — I don’t blame Swallow’s lawyers, who are just doing their job, for any of this.)

Here’s what Swallow’s attorneys say:

“The Constitution of Utah, Article VI, Section 19, governs the impeachment of Utah State officers, including the Attorney General: ‘[t]he Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office.” . . . Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.  The question is, whether or not, under Utah law, there is any credible argument that Mr. Swallow has committed “malfeasance in office” and whether the facts and circumstances at this point provide a basis for impeachment proceedings.”

Swallow’s attorneys simple waive away the “high crimes and misdemeanors” language with the statement that “Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.”

And so they don’t examine that further (more on that below).  Instead, they focus solely on what they define as “[t]he question“:  whether John Swallow has committed “malfeasance in office.”

Despite acknowledging that “there are no reported cases involving legislative impeachment in Utah” (Translation: they admit that the Utah Supreme Court has never defined the extent of the legislature’s authority to impeach because the legislature has never impeached anyone before) Swallow’s attorneys go on to cite two cases involving the impeachment of a County Auditor and a Mayor in a judicial proceeding under authority delegated from the legislature by statute.

Let me summarize the opinions for you.

State v. Jones.

State v. Jones involved an attempt, initiated in 1965, to impeach the Salt Lake County Auditor solely on the basis that he had failed to file a tax return in 1959.  The whole basis of the complaint was simply that the auditor had committed a misdemeanor under federal law by not filing the return.  There was no allegation of fraudulent or improper motive; simply that the auditor had failed to file a return.

The Utah Supreme Court reasoned as follows:

If it had been intended that removal from office should result from committing just any crime, including all misdemeanors, that could have been achieved by simply stating the generality: that an official could be removed for any crime. . . . .

The term “high crime” as used in statutes such as this is generally understood to mean not only a serious offense, but one in which there is harm or injury directed against other persons and is thus a violation of the basic mores of society, e.g., robbery, burglary, larceny, embezzlement or some crime of a character which involves such moral turpitude or is so offensive to accepted standards of honesty or integrity that one guilty of such a crime is unfit for a public trust and should therefore be removed from public office. Considering the terms of this statute together in context and in the light of its purpose, it seems only reasonable to suppose that for a misdemeanor to work a forfeiture of office it should partake somewhat of the same character. This is necessarily so because it can hardly be credited that it was intended that a public official should be removed from office for any failure to comply with any requirement of the law down to jaywalking, improper parking, or spitting on the sidewalk, whether related to his conduct in office, or to his qualifications for it or not.

There are various considerations which have a material bearing on the question whether the offense here charged is of such nature that one guilty of it should be deemed unfit for public office within the intent of this statute. One . . . is that this offense does not include any imputation of falsification or fraud with respect to the defendant’s income tax, so that particular aspect of moral wrong is not present. Nor does it involve any harm or injury directed against any other person and is thus not an offense malum in se, that is, inherently and essentially evil or immoral. . . . .

We do observe that it is not our purpose or desire to condone or justify the defendant’s dereliction, nor to minimize the importance or the necessity of citizens filing their income tax returns on time and paying taxes justly due. It is of course desirable for everyone, especially public officials, to conform to the law in all respects, and in fact to live exemplary lives. But unfortunately public offices must be staffed with people beset with human frailties and we must deal with them as such. That the defendant did not live up to an exemplary standard is not to be questioned. But upon the basis of the various considerations set forth herein, it is our conclusion that the offense he committed is not shown to be within the class of crimes which it was intended under our statute that guilt thereof would demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.

And now let me quote in full the language that Swallow’s attorneys quote only in part:

Underlying the problem here dealt with, and supporting the conclusion we have reached, is the principle, fundamental in our democracy, that the privilege of choosing and electing public officials, and repudiating them if and when they so desire, belongs exclusively to the people; and that neither the courts nor any other authority should be hasty to encroach upon that right. There could be no more certain move toward the exercise of autocratic control and the disruption of our greatly valued balance of power than for one branch of the government to usurp prerogatives not belonging to it.  Out of our Constitutions, Federal and State, and the historical development thereon, there is reposed in the courts the responsibility of passing judgment upon the actions of public officials and the functions of the departments of government. Both experience and wisdom teach that the greater the power the greater the duty of exercising forbearance in its use. An awareness of the dangers that could come from courts arrogating to themselves arbitrary powers emphasizes the necessity of approaching such matters with caution and with judicial restraint; and of refusing to interfere with the orderly processes of government except under circumstances where it is clearly apparent that the legislative mandate or constitutional provision requires it to be done.

Before I analyze this opinion, I want to emphasize again that this is not an interpretation of the Utah Constitution.  This is an interpretation of authority delegated by the legislature to impeach by statute.  I’m only analyzing it because Mr. Swallow’s attorneys are relying on it.

But, putting aside that the Jones and Madsen cases don’t govern Mr. Swallow’s situation, at least three things are clear from this opinion.  First, the Utah Supreme Court views the purpose of the impeachment as expelling an officer for actions that “demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.”  Second, the phrase “high crimes [and] misdemeanors” means something different from “charged with and convicted of a crime,” otherwise the commission of a federal misdemeanor would have been a basis for impeachment.  Third, it is clear from the opinion that it is the Courts that are (and should be) reluctant to aggregate to themselves authority to impeach.  The legislature is constitutionally tasked with the obligation and given the authority to act when appropriate and need not (and should not) exhibit the same reticence with respect to overstepping authority.

Madsen v. Brown.

The second case cited by Swallow’s attorneys purporting to define “malfeasance in office” is Madsen v. Brown, which involved the impeachment of the Mayor of Grantsville for shooting a dog.  In the Madsen case, the impeached Mayor acknowledged shooting the dog, but claimed that it didn’t constitute “malfeasance in office” because it didn’t occur while he was performing an official duty of his office as Mayor.  The Court reasoned as follows:

Appellant’s arguments focus on the interpretation of the requirement that the acts or omissions relate to the duties of the office. He contends that in order to establish the offense of malfeasance in office, the acts or omissions must occur in the course of some specified official duty as defined by statute or ordinance.

The standard urged by appellant does not coincide with the commonly understood meaning of the term “malfeasance in office” or the intent of removal statutes to protect and preserve the office and to free the public of unfit officers.

There is a range of conduct that can occur while an officer is acting under color of office, but outside any specified official duty as defined by statute or ordinance that sufficiently relates to the duties of office so as to taint the office itself or establish that a particular officer is unfit to retain the public trust. This range of conduct is included in the commonly understood meaning of malfeasance in office. R. Perkins, Perkins on Criminal Law 487 (2d ed. 1969) states that malfeasance in office can occur when an officer exercises official duties or acts under color of office. The term “under color of office” is further defined in R. Perkins, supra, at 483: “The act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office.”

The object of the requirement that the act or omission relate to the duties of the public office is to ensure that an official is not removed for malfeasance in office when the alleged wrongful acts or omissions occurred while the officer was acting in his private capacity as opposed to his capacity as a public officer. This requirement has not been interpreted to preclude removal where the official was acting in his public capacity outside specifically defined duties of his office. The question as to whether the alleged misconduct occurred while the accused was acting in his public, as opposed to his private, capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specific duties as created by statute or ordinance.

Again, the Utah Supreme Court emphasizes its view of the purpose of impeachment:  ”[T]o protect and preserve the office and to free the public of unfit officers.”

And the Court takes an expansive view of the definition “in office.”  (And as a side note, I will note that, even before he was ELECTED Attorney General, John Swallow would have still be eligible for impeachment as a Deputy Attorney General under the statute referenced in the Jones and Madsen decisions for malfeasance in office.  In other words, “in office” also means more than just “in elected office,” at least under the state statute relied on by Swallow’s attorneys.)

But perhaps most interesting to me is the following statement: “The question as to whether the alleged misconduct accurred while the accused was acting in his piblic, as opposed to his private capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specified duties as created by statute or ordinance.”

Hmm . . . “decided by the trier of fact” . . . and just who is the trier of fact when it comes to impeachments?  The Utah legislature.

In short, the two cases provide very little — if any at all — support for Mr. Swallow’s position that the legislature can’t act to impeach unless he’s been charged with a crime.  Indeed, it is the legislature’s constitutional obligation to act if they believe further investigation is needed.  Any interpretation of legislative authority that requires a decision by someone else (whether a US Attorneys’ Office, a County Attorney, or anyone else) is an interpretation that denies the Utah legislature full authority over impeachments.

Really, John Swallow?

Does Mr. Swallow really expect the legislature to believe that nothing he has done — if it does not lead to the charging or conviction of crime — prior to the time he entered elective office as the Attorney General provides a basis for impeachment?  And this coming from the the man who is the primary authority on which people in the state will be charged with crimes?

The arrogance of this position is remarkable.

There are lots of reasons an accused person may not be charged with committing a crime.  One, the charging authority may believe that the accused person hasn’t done anything wrong.  Or, they may believe he is guilty as sin but lack corroborating evidence.  Or, they may have corroborating evidence that may not be admissible under applicable rules of evidence.  Or, they may simply determine their limited resources are better used elsewhere.  (And who knows this — or should know it — better than Mr. Swallow, our Attorney General?)

For heavens sake, Josh Powell was never charged with or convicted of a crime!  Does Mr. Swallow believe that, were Josh Powell serving as our Attorney General he would not be subject to impeachment for murdering his wife?  What if Josh Powell had previously been acquitted of murdering his wife, and then, in reliance on the double jeopardy provisions of the United States Constitution had written a book admitting it all?  Still no impeachment because he was cleared by the courts?  Come on.

There is a judicial doctrine that precludes interpretation of a statute (or a Constitution, for that matter) when it would lead to an absurd result.  Here it is.

The evident purpose of our impeachment statutes is to provide for removal from office a person who has violated the public trust.

The United States Constitution.

I think everyone acknowledges that the “high crimes and misdemeanors” language in our Utah Constitution was modeled from the United States Constitution, which states as follows: “The President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Careful readers will note here that bribery is specifically included in the meaning of the broader term “high crimes and misdemeanors.”

The reference made to “conviction” in the Constitutional language refers to conviction by the Senate in a trial of impeachment.  It can’t mean conviction in a judicial proceeding.  If it did, that would take the sole authority to impeach out of the hands of Congress (and Hamilton, in the Federalist 65, wrote a lengthy defense of Congressional Authority to impeach).

The authority to impeach  – both in the United States Constitution and the Utah Constitution – lies solely with the legislative branch.  John Swallow’s self-interested reading of the Utah Constitution would require first either: (1) a decision to charge by the executive branch, or (2) a decision to convict in a proceeding under judicial authority.  In other words, it would result in at least a partial delegation of that authority to the other two branches.  That’s nowhere in the Constitution.  And it turns the principle of separation of powers on its head.

Utah Legislature:  Don’t be Intimidated!

What’s John Swallow going to do if the legislature institutes impeachment proceedings?  Is he going to file an action seeking to enjoin the legislature from fulfilling its constitutional duty?  I mean, not even Nixon did that, right?

Or is he just bluffing?

Well, I still think he’s bluffing.  I still think he’s just trying to intimidate the legislature into not acting.

So my message to the Utah legislature is — don’t be intimidated.

John Swallow wants to scare you enough that you’ll decide to wait on the results of an investigation that may or may not result in a decision to charge.  He knows that his best chance is for you to wait, for the Salt Lake Tribune and pesky bloggers to get tired of his situation, and cross his fingers that he won’t be charged.  Then, if everything works out he’ll claim victory and dare you to try to impeach an “innocent” man.

Do you really want to put yourself in that situation?  Because if you don’t commence impeachment proceedings now, there’s a good chance that’s where you’ll be.

Ask yourselves — how much more do you need to know before you start impeachment proceedings?

Hasn’t he already done enough damage to the Attorney General’s Office through his questionable conduct and poor judgment?

The most valuable quality a lawyer can possess is the quality of judgment.  It’s ultimately what we like to see in our Attorney General.  Yet — even if we assume the very best about John Swallow — he has time and time again, has exhibited extraordinarily poor judgment in acting in questionable ways and then refusing to take any responsibility for those actions.

And now he’s threatening you with a lawsuit if you tre to impeach him.  How else do you read this letter?  He’s threatening to drag all three branches of the government through messy and uncomfortable legal proceedings to prolong his political career.

The man’s in trouble.  And despite the fact that he feels as though he’s been persecuted by people at the Salt Lake Tribune, it’s all trouble of his own making.

Don’t be intimidated.

I posted on Twitter the other day that John Swallow is fully engaged in a game of chicken with the legislature.  This just ups the ante.  You know everything you need to know about this man.  You know that he has shown no respect for his office, for the other branches of government, or, most sadly, for the people who put him them.  You know he has bad judgment.  You know he places his personal political well-being above the well-being of the people of this state.  You know that he has sabotaged the standing and effectiveness of the Attorney General’s office and the attorneys who work there — people for whom I personally have a great deal of respect — and that he will continue to do so to promote his own personal gain.

If you’re worried about setting precedent by acting to impeach, realize you’re going to be setting precedent no matter what you do.  Think:  What kind of a precedent would you be setting if you didn’t move to impeach?  If you waited until Mr. Swallow was charged with a crime you’d be cementing his interpretation as the only available precedent — that the grounds for impeachment are equivalent with the conduct punishable as a criminal offense.

Take the necessary action.  Call John Swallow’s bluff.  And put this matter to rest once and for all.

Filed Under: Law, News, Opinion Tagged With: , , , , ,

What To Do With Utah’s Caucus System?

June 11, 2013 by 11 Comments

I held off for as long as I could, folks.   Really.  I’ll try to be intelligent about this, I promise.

What to do with Utah’s caucus system?

Get rid of it altogether?  Reform it?  Create an alternate path such as Count My Vote?  There are certainly lots of suggestions out there.  And whether you’re a member of the Utah Republican Party State Central Committee, a Republican, a Democrat, or an Independent, chances are that you’re going to be asked to weigh in on the issue soon (even if only through signature gathering).

So, if you haven’t already done so, it’s time to ask yourself (before your overly inundated with all the rhetoric)– what to do?

Before we get too fired up about all changing it or keeping it, we should stop and ask ourselves, “just what is it that we’re trying to accomplish, here”?  After all, look before you leap, and all that, right?

So, in the spirit of true altruism, let me set out three principles that I think should guide your consideration of the issue.  And then, in the spirit of the truly self-absorbed blogger, let me offer you my unsolicited opinion on the application of those principles. :)

PART 1: Some Guiding Principles.

First, the (hopefully) helpful part.

Principle #1:  The caucus system should be regarded and evaluated for what it actually is, which is a means of selecting party candidates for general elections, and not as a political strategy tool for undermining Tea Party Crazies or The Establishment.

Principle #2:  The caucus system shouldn’t be changed or maintained in response to any political result.  Regardless of what you think of Mike Lee and Bob Bennett, the result of the 2010 Utah Senatorial election shouldn’t continue to determine Utah’s candidate selection process.

Principle #3:  The candidate selection process has obvious real world consequences with respect to voter participation and engagement, candidate access to political office, campaign strategy and issue presentation, and even freedom of association (poor Utah Democrats . . . they’re caught in the crossfire yet again).  Changes to the candidate selection process should be made such that the chosen system aligns with individual priorities on these issues.

So, when you’re thinking about what you want to do with the caucus system, I encourage you to think about proposed alternatives not in terms of Grassroots v. Party Elite, or Tea Party v. Establishment, but in terms of what you prioritize in a candidate selection system and whether the caucus system (or the proposed reforms) aligns with what you think is important.

PART 2: My Opinion.

Now, without further ado, let me offer you one well-considered (I think, anyway!) opinion. :)

I think a candidate selection system should, first and foremost, encourage voter participation and engagement and provide each voter a meaningful opportunity to weigh in with respect to candidate selection.  I think it should ensure that a meaningful opportunity to seek public office is available to all willing to work hard and serve.  I think it should foster rather than discourage accountability of an elected official to the people within his or her electoral district.  I think, as a general matter, it should result in the selection of a candidate whose views are consistent with the majority of party members within his or her district.  The system should, where possible, be dictated internally by the party rather than imposed from the outside.  Getting the “best candidates” isn’t something that’s on my list — because it’s impossible to determine and is a convenient excuse for undermining the prior priorities.

My one or two regular readers know that I haven’t been shy about criticizing what I see as the problems with the caucus system for selecting party candidates.  But those same people know that my stance has moderated recently in light of the 2012 caucuses — due in no small measure to the effort the state parties (especially the GOP) put into education and getting people out in 2012.

So, while I’m not the pure opponent of the caucus system that I have previously been, I’m still an advocate for reform.

Here’s why.

And let me say, before I begin, that I’m under no illusion that there’s a perfect system for selecting candidates.  There’s good and bad to any system.

Pros and Cons.

Here’s what the caucus system does well:

(1)  It provides nearly unparalleled access to office for political candidates who are willing to work hard and connect with delegates.  How does it do this?  In two ways.  First, by shrinking the constituency so that candidates don’t need money or widespread name recognition to reach voters.  Second, by dangling a low 60 percent primary avoidance threshold in front of candidates.  Thus, instead of a new candidate having to convince, say, 18,000 voters house district voters in a primary election, under the caucus system a candidate need only convince 50 or so delegates (60 percent of 80 delegates) whose names, addresses, and telephone numbers are provided to the candidate by the state party free of charge.  If they do that.  They don’t need a primary.  The only necessary investments to avoid a primary are a website, lots and lots of time, and a few dozen yard signs for the state convention booth.  That’s a big win for challengers, and it really sets Utah apart.

(2) It does a good job of focusing campaigns on issues.  If you’ve ever been in a meeting between candidates and delegates, you know that the delegates will grill the candidates on significant issues.  There isn’t hardly a candidate in Utah who skates through convention on the basis of a smile and radio spots without being challenged on the issues.  That’s a positive thing, even if only a few people ever get to hear the issues discussed.

And here’s what it doesn’t do well:

(1)  It marginalizes non-delegate voters.  There are about 600,000 registered Republicans in Utah.  There are approximately 4,000 state delegates.  In many instances, the Republican candidate for the general election is being chosen by 2,400 (60%) of those delegates, which is .4 percent of the registered Republicans in the the state (or, if you prefer .8 percent of a majority of the registered Republicans in Utah).  And we all know that Democrats do not win statewide general elections.  The role of the average voter is limited to voting once every two years on a caucus night they might not be able to attend due to entirely legitimate reasons . . . such as staffing a hospital, or a fire station, responding to a work emergency, or tending to sick children.  Yes, the can always contact their representative, but the whole idea of democracy — and even a Republic, for that matter, my Utah friends — is that a person will have a chance to weigh in directly at some point prior to when a matter is a foregone conclusion.

(2)  It defines constituencies in ways inconsistent with political responsibility.  Under the caucus system, especially in a dominant party state, delegates become the constituency of the candidates.  They are, in a meaningful sense, the only people to whom the candidates are responsible.  And so political accountability becomes ever less coextensive with political responsibility.  An elected official is responsible for representing all the voters — Republican, Democrat, and Independent — in his or her electoral district.  But under the caucus system, the candidate is only meaningfully accountable to a handful of delegates.  While it’s true that, especially in every “safe” electoral district, a candidate is only politically accountable to 50-60 percent of the voters, the caucus system makes matters by orders of magnitude.  It is too often the case in Utah where an elected official is punished (or is worried about being punished) for actually representing the views of a majority of his or her voting constituents.  This turns the concept of accountability on its head.

(3)  It is too focused on avoiding primary elections.  As currently constituted, Utah’s caucus system might also be referred to as the “primary avoidance system.”  Supporters of the caucus system don’t like political primaries.  And who can blame them?  They’re expensive, issue-light affairs that often devolve into attack ads and embarrass party members.  But too much focus on avoiding primaries only exacerbates the caucus system’s problems with respect to voter engagement and accountability — and, importantly, puts up barriers to meaningful reform.  After all, even a modest change from the 60 percent threshold is rejected out of hand because it would result in a number of more primaries each year.  Even efforts to increase voter participation at caucus night are viewed with skepticism because they almost certainly would make primaries more likely.

(4)  The caucus system can be manipulated by money, and in a more potentially disquieting way.  We have learned during the last 3 years is that the Utah’s caucus system can be manipulated by anyone — the monied old guard as well as young, poorly-financed up and comer.  Just as Mike Lee “gamed” the caucus system by drumming up grass roots delegate support prior to caucus night, Orrin Hatch “gamed” the system by putting in place an impressive (and impressively well-financed) long game strategy of his own the minute he observed Bennett’s fate.  And, folks, there’s no denying it — that a major reason Orrin was able to “game” the system the way he did was because he had tons of cash to spend to pay staffers to recruit and train delegates.  And make no mistake, Mike Lee is raising money right now to pursue a Hatch strategy on caucus night 2016.  If this now becomes the norm, we might well ask ourselves whether we’ve substituted the sound bytes and attack ads of a primary election for something that might seem uncomfortably close to a (relatively benign) form of machine politics . . . .

Some closing observations.

(1) I’d like to see the system reformed.  Although I was once leaning toward abandoning the system in favor of a direct primary, I no longer feel that way.  I would like to see the system persist, with reform.  The caucus system as currently constituted is a bad fit for a dominant party state like Utah, but it could be made better.  Specifically, I would like to see the primary threshold raised to 70 percent.  I would like to see permanent efforts to encouraging participation on caucus night, perhaps by allowing for other means of voting and/or attendance.  And I would like to see real efforts made by the party to help the delegates understand their obligation to be accountable to their neighbors and to keep them informed.  The party should give delegates contact information for their neighbors so that they can send emails.  They should encourage communication.  They should discipline delegates who abuse the privilege by campaigning.  A reformed caucus system would focus on encouraging voter turnout and participation, while still providing meaningful opportunities to candidates of all types without punishing elected officials for representing their constituents.

(2) I’m not a fan of the Count My Vote proposal.  To me it seems to be about specific candidates and not about the principles that should drive our candidate selection system.  The Count My Vote proposal is designed to prevent another incumbent from being “Bennetted,” at convention by giving someone with money to spend and name recognition a way to get on the ballot after failing in convention.  While I suppose it technically expands voter choice, it really just expands candidate options

(3) Reform or Be Reformed.  But if the Utah Republican Party won’t undertake reforms on its own, it will be stuck with something like Count My Vote.  Delegates are not doing themselves or the caucus system any favors by refusing to consider reforms and making things personal with The Establishment.  Delegates may want to reconsider their tendency to dismissively refer to opponents of the caucus as “party elites.”  This is, after all, supremely ironic since these delegates are the very definition of Utah’s political elite who have (generally) thus far steadfastly resisted any effort to diminish their sway of Utah politics.

My sense is that both caucus reform and more party diversity are coming to Utah.  They could and should go really well together.  But if the Utah GOP continues to resist reform, I’m afraid we’ll be left with a much less desirable alternative.

 

Filed Under: News, Opinion, Uncategorized Tagged With: , , , , , , , , ,

Some Random Political Quick Hits

April 1, 2013 by 1 Comment

Too tired to offer up any real substantive content this morning.  So, instead, you get something akin to my own cynical version of Political Cornflakes. :)

John Swallow’s getting away with it.

Wake up Utah GOP.  This guy’s not leaving of his own accord.  You wait for the official results of investigations at your peril.  I hope you’re all still quietly working behind the scenes and haven’t just decided to let the guy finish out his term and lose at convention.  Because that would just be sad.

Caucus system and Mike Lee.

Paul Rolly put out an article today on how Mike Lee is the compelling reason to change Utah’s candidate nominating system.  I’m far from a raving fan of either one.  As to my views on the caucus system, just ask Dan Burton at PubliusOnline — we’ve gone the rounds on this one more than once.  Mike Lee?  Well, he’s been in office almost 3 years now, and what’s he done?  Come on, think of something . . . I dare you.

I’d like to replace Mike Lee.  And I’d like to change the caucus system.  But it’s never a good idea to change a system in response to an electoral result.  In 2012, Tea Partiers learned, much to their distress, that they were not the only ones with power to game the caucus system.  Whatever changes we make to the ways candidates are chosen in Utah should be about voter participation and engagement, not about results.

Tired of the crazy legislature meme.

Our legislature is conservative.  Really conservative.  But count me as one who’s getting tired of hearing that they’re all “bat-s***” crazy.  In fact, if you put aside the constitutional carry bill (HB76, or whatever the number was), this year’s legislature was pretty darn moderate . . . especially by recent standards.  Over and over I hear Utah’s liberals trotting out example after example of legislation that went nowhere as proof of how nutso our representatives are.  Sorry, I just don’t see it right now.  I’ve been as willing as anyone to call out what I see as silly in our elected representatives.  And I haven’t seen much of it lately.  While there’s more I’d like to see them do, of course, our current legislators are, on the whole, doing a fine job.

Obamacare.

Well, we’re coming down to it now.  Or are we?  Will it be fully implemented in 2014?  And what will it do?  Aside from turning the USA into Russia/fulfilling the promises of liberty and justice for all nobody really seems to know.  Though we are all positive that Obamacare will “eliminate pre-existing conditions” . . . which is political-speak for “prevent insurance companies from denying coverage based on pre-existing conditions.”

I think there will be a lot of buyers remorse on Obamacare, which, from what we can tell, seems to be terribly designed and shabbily implemented.  Unfortunately, the GOP has yet to articulate an alternative vision, so it appears we’ll twist in the wind for a time before beginning the debate over full national health.  Ughh.

At least the Obamacare preparation consultants will have their moment in the sun prolonged . . . .

Supreme Court.

There’s lots of cool, important stuff going on up there right now.  And very little intelligent commentary about it.  More to come.  Whether what comes is intelligent or not, well, that’s obviously up to you to decide.

Filed Under: News, Opinion Tagged With: , , , , , , , ,

Today’s GOP: Finding Its Way Outside the Echo Chamber

February 20, 2013 by 2 Comments

These days, the favorite pastime of commentators right and left is psychoanalyzing the troubles of the Republican Party.  There’s lot being written out there, and, as you might expect some of it is good, while a lot of it is bad (incidentally, I find the mix to be about 15/85 or so…).

Yesterday I read what I think is a particularly insightful piece on what I believe may be the root of the GOP’s political problems, penned by former Representative Joe Scarborough and titled  Tearing Down the Conservative Echo Chamber.  Here’s an excerpt:

After Chuck Todd concluded that Republicans are afraid to leave the safe confines of conservative media outlets, I explained that such a response was short-sighted. After all, it was the Conservative Entertainment Complex that led Republican thought leaders, grass-roots activists and even the presidential candidate himself into believing that a GOP victory was imminent on Election Day. The Romney team was isolated so deep inside this conservative media bubble that they continued to believe victory was theirs well into the evening.

That embarrassing political tale proved that conservatives had finally become what they had once mocked: an insular movement so lost in its own echo chamber that it rarely made contact with those who didn’t share their world view. This is, of course, the same trap that liberals fell into in Manhattan newsrooms and on college campuses throughout the 1960s and 70s during the rise of Richard Nixon, Ronald Reagan and the Silent Majority. And yes, there was a silent majority that liberal newspapers and TV anchors were blind to for the better part of a generation.

. . .

Why is Rush Limbaugh batting one for six in presidential races? Why is Fox News one for five? Perhaps it is because two decades later, what many of us once considered to be an important balance to left-wing media bias have become the only outlets conservative politicians and thought leaders consider legitimate. That has proven to be a terrible calculation.

This assumption has now become so widespread on the right that any news analysis or media poll that runs counter to Republican interests is dismissed by the right as biased and irrelevant. This mindset took firm hold in 2012 so that the echo chamber syndrome that once made fools of left has now come back to undermine the right. Not only does this approach distort political reality by only reinforcing pre-existing worldviews, it also stifles intellectual debate inside the party. This in turn creates the kind of stale political environment that has been criticized of late by conservative thought leaders like Bill Kristol, John Podhoretz and Pete Wehner. Mr. Wehner wrote a column today in “Commentary” calling for the “intellectual unfreezing” of the right.

The GOP talks to itself too much, and therefore ends up confusing means and principles and taking all of its ideas too seriously.  Within the party, you have the national level equivalent of a dominant party state primary, where candidates struggle to outdo each other in consistency to principle.  And so, as I’ve written elsewhere, every little political fight is converted into a must-win battle to the death over fundamental principles.  The Grand Old Party is ossifying, becoming inflexible and unwilling (seemingly almost unable) to creatively apply its principles to changing conditions and political realities.

And the casualties?

Diversity of thought and viewpoint.  Creativity and solutions.  Hard-headed, realistic thinking (the very thing Republicans have always prided themselves on).  Expansion of appeal.  And, ultimately, elections and influence.

Today, we have a Republican Party that seems trapped by the very principles underlying its extraordinarily important contributions to government over the last 150 years.  It single mindedly pursues a romantic version of its own ideal, at almost all consequences.  In a way, the GOP has become it’s own version of the emotional bleeding hearts it derides among Democrats.  Instead of healthcare and welfare, it’s no taxes, absolute freedom from regulation and gun rights.  The party of clear-eyed realists has become the party of emotional originalists — so emotionally committed to an inflexible variant of realism that it’s ability to act in all but the most favorable circumstances is paralyzed.

The good in the GOP is still there.  It’s message of limited government is just as important as it has always been, if not more so.

I’m a Republican because I believe in the GOP’s core message of the importance and practical reality of limited government and financial responsibility.  I believe it is a message suited for the most pressing challenges facing today’s America.  We need to GOP to break out of its echo chamber, take a clear assessment of our situation and its political realities, and get back to being the GOP again:

As much as at any time in recent history, America needs a strong, vibrant party on the right to speak for the civilizing ideal of limited government. Barack Obama has put in place an agenda of unreconstructed progressivism that is at war, not only with Reaganism, but also with Clintonism. He has exacerbated a massive fiscal imbalance, added a poorly designed entitlement that further destabilizes the health sector, and sounded an uncertain trumpet of global leadership. If Republicans urgently need to recalibrate, and they do, it is because the stakes are so high.

Among some party loyalists, there is a natural tendency to maintain that the GOP is simply suffering from a “communications problem,” that if only Republicans spoke more loudly, more insistently, and with greater purity and passion, they would broaden their appeal and proceed to sweep national elections. But that counsel, appealing as it might be to a shrinking segment of the electorate, is surely not adequate to present circumstances. More is needed than pumping up the volume.

Intellectual honesty is the first requirement of self-renewal. Republican problems are not superficial or transient.

For the GOP to revivify itself and enlarge its appeal, Republicans at every level will have to think creatively even as they remain within the boundaries of their core principles.

Filed Under: Opinion Tagged With: , , ,

John Swallow . . . Quietly Still There . . .

February 13, 2013 by 1 Comment

It’s been over a month now since the Salt Lake Tribune broke the story about John Swallow and Jeremy Johnson.

In the interim we’ve seen more news — all of it bad — including today’s most recent headline: “Swallow suggested cash in exchange for protection, sources say.”  And don’t forget when we learned earlier this week that Mr. Swallow’s own boss (whether motivated by legacy preservation or other concerns) reported Swallow to the FBI (prior to the election, mind you — and then continued to campaign for him to the bitter end).

There have been media demands for resignation and talk about FBI Investigations, ethics reform, and even some whispers about impeachment . . . and yet there John Swallow quietly sits, huddled in the Attorney General’s office, sending out politically hackish emails (e.g., “Fighting for Traditional Families”), crossing his fingers while anxiously awaiting the outcome of an investigation over illegality.  One may be reasonably certain that Mr. Swallow will (likely through a spokesman) indignantly claim vindication if the investigation ends in anything other than a decision to bring charges.

There are still a few voices out there counseling for us to “wait for the facts to come out,” because, after all, this whole thing may be shoddy political takedown manufactured by Jeremy Johnson or those liberals at the Salt Lake Tribune.

That’s not surprising in politics and not too concerning since they’re really not making much noise.

More surprising and concerning than Swallow’s few, quiet defenders, is the utter absence of noise from our elected officials and the public at large.  Our representatives appear to be whispering in the background, waiting for the smoking gun that will allow them to step out from behind the curtain and demand resignation.  They’re being careful — and such cautious care is often, after all, the successful politician’s stock in trade (and not a quality to be scoffed at).

But, right now, these folks are John Swallow’s best friends.

There is being prudently cautious and there is refusing to act because you want to be bailed out.  It appears to me that we have the latter here in Utah when it comes to Mr. Swallow.

We know all we need to know about John Swallow’s lack of judgment and utter lack of credibility to serve as Utah’s chief law enforcement officer.  Right now the only thing that is being gained by continuing to wait and whisper is an increased likelihood that Mr. Swallow, despite having lost all public confidence as this state’s top law enforcement officer, will finish his term in office.

Because let me tell you how I think this ends, if people wait to act until after the conclusion of the federal investigation.  There’s a good chance that the investigation ends with a decision not to bring charges (whether out of a conviction that there was no technical violation or law or just out of a lack of evidence), thus doing nothing more than confirming what we already know — Mr. Swallow has questionable ethics or extraordinarily poor judgment.  At that point, Mr. Swallow claims victory, and I see it highly unlikely that he is impeached after being “cleared” or that political will to force a resignation will suddenly materialize in the aftermath of a “favorable” result.

That would be a tragedy — a stain on the state of Utah and the good work done by our Attorney General’s Office.  And therein lies the danger of continuing to wait, hoping for the smoking gun of illegal conduct (which many will argue we already have).

John Swallow’s hoping this is just how things play out, so that he can finish his term, maybe get a signature “win,” and emerge with favorable record that will make everyone forget all about his messy past.

Because Mr. Swallow is firmly convinced (or at least thinks it’s a good bet) that we’re all just fine with a few shenanigans so long as the federal government doesn’t arrest him on national TV, criminals continue to get convicted, and we fight the good fight at the Supreme Court.

Thus far, Mr. Swallow has been immune to public pressure, confident in the fact that he won’t be charged and people will forget all about this as soon as the Tribune runs out of stories to print.

Seems to me like we need to ratchet up the pressure . . . .

Filed Under: News, Opinion Tagged With: , , , , , , ,

Some TMI-Type Thoughts on Obamacare and the Last Chance

February 8, 2013 by 2 Comments

I used to run a lot.  And I used to be fast.  No, really, I was!

I still run when the weather’s decent, and I’m not slow . . . but let’s just say I’m definitely in decline.

And I can pinpoint the moment my decline started.  It was 8 years ago, and I was a 27 year old graduate student at the University of Iowa sitting amidst a pile of paperwork on the floor finishing some research for school (the floor is often my preferred place to conduct research, to the consternation of my wife) when I decided to quickly stand up.  I did, awkwardly, and felt my right knee pop.

I’ve never quite been the same.  Though I’ve continued to run and do other things, I can’t go as far as often or with the reckless abandon I used to.

It’s all part of getting old, I suppose.  I just never expected it would happen so suddenly.  Sigh . . . .

But, turning back to the task at hand (aren’t you wondering what that is!) . . . this last week I reaggravated my old knee injury, and it’s the worst it’s ever been.  It’s difficult to walk on it.  With rest, ice , and Ibuprofen I’m sure things will improve, but I think I’ll probably need surgery before I can return to much (if any) serious physical activity.

There’s just one problem — I’m uninsured.  Have been for the last 2 years.

My family’s uninsured.  Has been for the last 2 years.

In April 2011, I voluntarily left a good paying job at a Salt Lake City law firm that treated me well to strike out on my own in the middle of a recession.  I didn’t have a single client.  I didn’t have health insurance.  I had no idea what I was doing when it came to marketing or running a business (two years later, I have some vague ideas . . .).  I had some savings and food storage.  I had five young children and an amazing and patient wife.

View it as a leap of faith or abject stupidity.  Personally, I alternate between the two.

Things started out very rough, but have gradually gotten better.  My financial situation is improving — though we’re still struggling month to month and are far away from the point where we can afford health insurance.  Even high deductible plans would place an extraordinary strain on our meager resources.  And HSAs?  Nice idea, but for me right now, ha ha ha ha ha . . . .

We’ve been lucky so far.  We’ve avoided the emergency room and surgery–thanks in no small part to an extraordinary wife who has successfully treated numerous injuries and maladies at home — everything from small magnetic balls stuck far up a child’s nose to numerous severe lacerations and eye trouble —  when I was ready to head to the clinic or hospital.

Believe me, I don’t like walking the no-insurance tightrope.  But it is where I am right now.

I hope it’s not where I am a year from now.  Because in 2014, I — and many others like me — will have to purchase health insurance, like it or not.

It won’t be cheap.

And there are a lot of people who aren’t going to be happy about it.  The predictable result of Obamacare’s forced consumption will be premiums rising at an even greater pace than now, if you can conceive of that.  People will struggle to keep up and won’t be happy.  If my firm continues to do better, I’ll be buying insurance.  If not, I (and many like me) will be forced on to Medicaid or penalized at tax time.

President Obama and the Democrats know this.  And they’re counting on it.  They’ll want to parlay the frustration and discontentment over Obamacare 1.0 into Obamacare 2.0: National Health.  It’s been the plan from the day it became clear that, even in the dark recessionary days of 2009 and 2010, national health was a political non-starter.  The one-step program became a two-step program.

There’s nothing nefarious about it — though I personally don’t particularly like it — it’s normal political strategy motivated by a sincere desire to solve this country’s health insurance problem.

And let me tell you, folks, Obamacare 2.0: National Health is where we’re going unless someone is able to provide an workable, alternative plan for healthcare.  In fact, if no one can provide and stand up for a serious alternative vision — if all we’re left with is the choice between Pre-Obamacare 2009, Obamacare 1.0, and Obamacare 2.0: National Health . . . it should be national health.  Shocking?  Well, it’s true.

But it doesn’t have to be that way.  It’s not the choice we have to make, and it’s not the choice we should be making.

There are other choices out there in need of a champion.

GOP:  I’m talking to you.

You have one last chance to avoid national health.  You’ve already wasted 3 years trying to get rid of Obamacare via lawsuit without having a replacement plan other than “the market.”  Now, the window to avoid national health is 2013-2016, and may not even be that long.

To borrow a phrase from our President:  ”Let me be clear” — If you don’t present a workable (compelling would be nice) alternate vision for healthcare in this country before the next Presidential election . . . hello true socialized medicine.  And don’t it always seem to go, that you don’t know what you’ve got ’til it’s gone??!!

What would a workable alternative vision look like?

First and foremost, it would solve the problem of access created by out of control costs.  It would be comprehensive.  It would include serious tort reform.  It would eliminate insurance company abuse of preexisting conditions.  It might rethink the whole concept of insurance versus prepaid medical care.  But it would deal with rising costs.  It would maintain flexibility.  It might continue to rely heavily on health benefits provided by employers, or it might take a different approach.  But it would prevent skyrocketing costs.  Did I mention that it would be laser-focused on controlling costs?

Because, say it with me folks:  The problem of access is a problem of cost.  The problem of access is a problem of cost.  The problem of . . . .

That’s your challenge, should you choose to accept it.

There are lots of good ideas out there.  Put them together into a workable plan and evangelize!

President Obama’s not the only one who can capitalize on the frustration about to be created by Obamacare 1.0.  You can, too.  And even if we ultimately end up at a variant of national health, the country will be better off for having been given a real choice.

Stop whining, get wonking, and then start selling!

 

Filed Under: Opinion Tagged With: , , , , , , , , ,

Some Thoughts on Moderation in Politics

February 4, 2013 by 6 Comments

I self-classify as a moderate conservative, and,  as a result, get derided by people of all political persuasions.

To some Republicans (or Libertarians), I’m an fearful, empire-building statist unwilling to follow my principles to their logical conclusion.  To some Democrats, I’m the fearful casualty of a far-right religious upbringing from which I’ve been unable to break free.

The truth?  Somewhere in the middle, I’m sure — after all, I’m a moderate, right?!! :-D

And that’s not good for whatever political ambitions I may have harbored as a child :)

A track record of occupying the middle ground is often a death sentence for political careers.  At least it certainly seems to be right now.  President Obama appears to have transitioned (whether permanently or not, we’ll see) from uncertain, well-spoken centrist into validated liberal lion, while the GOP is, well, struggling a bit out there on the fringe.

Principles, rather than solutions, are all the vogue.  It’s relatively dark times for us more moderate types, because the moderate doesn’t do well in this environment.

People tend to associate moderates with expediency rather than principles.

But should they?

Is there anything to recommend moderation in politics, aside from its penchant for actually producing political action?  In other words, is moderation all about solutions, or is there something more to it?  Something principle-based perhaps?  Well I certainly think there is, and I’ll take the opportunity to get up on my blogging soapbox and force some thoughts down the throats of you few who are committed to keep reading. :)

I want to distinguish between a couple different types of moderation.

There is a strain of moderation in politics that suggests that compromise, middle-of-the-road solutions are best — not only because they are feasible but because they are superior.  After all, no one is right all the time, and compromise solutions tend to weed out extreme ideas and positions.  If nothing else, a compromise usually results in cautious, incremental movement less likely to have the dire consequences that might be associated with extreme shifts in policy.    It’s potential virtues aside, the key point is that if you subscribe to this type of moderation and the hard work of policymaking becomes quite easy.  Have both sides give up a few things that they want in any debate and you have a solution — not only a solution, but a great solution.  Problem solved.

But while the benefits of “process moderation” (shamelessly stealing that term from a friend, here) may sometimes be proven out in practice, it is, in my view, ultimately lazy moderation; it’s compromise for the sake of compromise stuff.  I’m not a great fan.  Certainly in the context of alternatives it’s often the lesser of evils, and while I occasionally get sucked into this variant, it is not, primarily, what I have come to view as true political moderation.

In fact, as pointed out by yet another friend, someone who self-describes as a political moderate based on their inflexible commitment to the center, may actually be quite immoderate (though this lack of moderation is only rarely exposed).

The second strain of moderation  – the one that I like better — describes more of the moderates that I know.  This type of moderation is associated with a focus on reality and respect for others’ opinions (or at least the political force of their opinions) rather than a passionate commitment to the political center.  This type of political moderate is someone willing to temper their own preferred positions out of a recognition that, in a democratic society, if you don’t temper voluntarily, someone else is quite likely to eventually do the tempering for you — in a way you really may not like.  After all, regression to the mean by way of pendulum swings, and all that . . . .

Let me try and explain with an example or two.

Occasionally, I hear Republicans talk as though the social welfare state emerged out of nowhere, as a government power grab foisted on an unwitting public by nefarious liberal leaders.  Or Democrats talk about liberalization of gun rights or welfare reform like they were a conspiracy hatched by the wacked out far right to oppress minorities and return America to the Wild West.  Most don’t talk this way, but some do . . . and we all may, at one time or another.

But I think that if you let yourself have some historical perspective you’ll see that both of these things are the results of insistence on excesses, (and by excess I mean politically immoderate positions — whether ultimately right or wrong), that eventually provoked a backlash resulting in what you see now.  The excess of the Gilded Age produce social welfare legislation and the New Deal.  Excesses in gun control and the entitlement welfare of the Great Society result in Heller and liberalization of gun rights and the Reagan Revolution.  Or, if you prefer, substitute the word “enable” for the words “produce” and “result” and the previous sentences.  There are plenty of other examples.  To start you thinking, consider the taxes, investment banking regulation, suffrage, immigration, and even the origins of the Constitution and Hamilton versus the Antifederalists.

I could go on, but my thoughts are summed up pretty much as follows:

Immoderation begats immoderation.  Or, phrased in the affirmative, excess begats excess.

In my view, moderates are often people less committed to the center, and more committed to refusing to allow their conception of the perfect to become the ally of their intellectual “enemy.”  They value what they already have as well as what they think they can obtain, and recognize that more than just the perfect can be lost in the quest for perfection.  They understand that not every dispute need not be a titanic struggle between good and evil.

Too often, when it comes to politics, we fall into what I’ve started to call “Lord of the Rings” syndrome (with all due respect — and much is due — to Mr. Tolkien), where every disagreement becomes an epic battle to the death.  While we pick our battles with our children (at least we do when we’re smart) we’re less and less inclined to with our political enemies.  And as a result, we end up fighting way too many Battles of the Backlash.

The Battle of the Backlash is the fight that you provoke by insisting on getting it all, whether all at once, or incrementally . . . .

Sometimes you’ll win, and sometimes you’ll lose the epic struggle.

But be assured that you’ll fight the Battle of the Backlash whenever you insist that everyone join you on your end of the political spectrum, because, dang it, you’re 100 percent right and they’re only willing to admit that your 90 percent right.

And just look at the cost (assuming it’s even possible) of recovering what you may have lost once it’s gone!

In politics every small struggle has connections to, and overtones of, a battles over fundamental principles.  But they don’t (or shouldn’t) always end in the same place.  In my opinion, the more often you fight small struggles battles as though they were epic battles, the less effective you’re going to be when a really fundamental dispute comes along.

Now, lest you think that I haven’t considered the other side, I’ll acknowledge that the dangers of moderation are as evident as its benefits.  You can certainly fall into the trap of believing that nothing is worth really fighting for and compromise yourself to moral relativism.  You can start getting a skewed view of the political landscape when you start seeing everything through the lens of moderation — i.e., they lost because they were too extreme; they won because they were reasonable.

I’m not suggesting that my view of moderation is the perfect lens through which to view the world and evaluate political outcomes.  I’m not suggesting it’s necessarily the philosophy for all seasons.  But it’s something I think about quite a bit, and I believe it’s worth thinking about the next time you’re gearing up for political battle.  At the very least, it’s something you should consider the next time you’re tempted to deride those squishy moderates. :)

I’d love your thoughts!

Filed Under: Opinion Tagged With: , , , , , , , , , , ,

On Transformations and Transformative Leaders

January 23, 2013 by 3 Comments

It’s cliche and makes me cringe a little bit to write, but I’ll write it anyway:  Our country is at a crossroads.

In the 80 years since the onset of the Great Depression, America has built, in fits and starts, a moderate social welfare state and limited international empire that appears to be on the verge of collapse due to a combination of bad fiscal habits, demographic realities, and rising international competition.  We’re approaching a moment when America is going to be forced to take a very fundamental change in direction.  We’re in an obviously unsustainable place, and, yet, while they talk about it for hours on end, none of our esteemed leaders seems to be really able to admit it.  I mean really admit it, much less act on the admission.

I feel like America needs to join an international twelve-step meeting.  Hi, I’m America, and I’m addicted to having it all . . . .

The historically dominant western countries, built on the twin principles of democracy and social welfare, seems to be reaching their limits, practically and intellectually.  Rather than believing we’ve reached the “End of History,” as one famously phrased it, I tend to think we’re on the cusp of change that will be quite fundamental.

What will it be?  I don’t know, exactly.  While I have my own fuzzy ideas about what it should be, of course, that’s a post for another time.

But I sense that it’s coming, and that we’ll need a transformational leader to help America successfully navigate it with our own fundamental principles still intact.

In many ways, President Barack Obama is a remarkable man.

His public speaking is first rate.  His intelligence is impressive.  His personal conduct is beyond reproach; he’s a model husband and father.  In the last year he has shown a remarkable ability to learn and adapt from past failures — for evidence, just look compare his rather dismal performance in July 2012 to a very astute political performance during December 2012 (of course, winning an election in the interim helps . . . but still).

But despite all the talk about transformation, hope, and change that accompanied his election in 2008, President Obama hasn’t been, and won’t be, the type of transformational leader America needs.

The type of transformative leader we need isn’t someone who will take us into a new Era of Good Feelings.  As much as we are all frustrated with the partisanship and political ridiculousness, more cooperation isn’t necessarily the cure for what ails America.

The type of transformative leader we need isn’t someone who will take us into the next stage of the entitlement state.  We’ve seen where that leads.

We need someone willing to take us in a new direction.

I don’t know that I see anyone out there right now who fits the bill.

But the history of America teaches us that looks can be deceiving.

After all, who would have guessed that timid, uncertain Abraham “I have no intention of interfering with slavery where it now exists” Lincoln would be the one who launched America into the Civil War and accompanying transformation.  Or that mild-mannered Harry “Failed Haberdasher” Truman would be the one to end WWII by dropping the atom bomb on Japan and commence the Cold War with containment in Berlin and Korea?  Or that a B-list Hollywood actor would bring down the USSR after Eisenhower, Kennedy, and Nixon had each failed?

You get the picture.  The person we need may not look like the person we need at all.

Peering into the future, especially in uncertain times, leaves us looking through a glass darkly.  While we can sense approaching change, we can’t see clearly what seems so inevitable in hindsight.

But while things are still fuzzy as far as the future is concerned, what we can look for in our leaders is a commitment to doing what needs to be done to position America for the future.  Don’t see much of that out there right now.  Anywhere.

And that should concern us quite a bit.

Because something’s coming, due any day, and we need to be ready, soon as it shows . . . .

Filed Under: Opinion Tagged With: , , , , , , ,

What Does the John Swallow Debacle Say About Utah?

January 17, 2013 by 15 Comments

Since the Salt Lake Tribune broke the story about John Swallow’s troubling connections to disgraced philanthropist Jeremy Johnson last Saturday, calls for Swallow’s resignation have trickled in.  Over the last 24 hours, that trickle has become more of a flood.  It seems like everyone agrees that Swallow’s got to go.

I commented after my initial post that I didn’t think this would take him down, unless it got more messy (which it has).  Well, now we’ve got other federal investigative targets associated with Swallow and a deathbed affidavit that appears to have been prepared in a panic and has done nothing but make the scandal worse.  The whole thing stinks of an amateur hour attempt at Chicago-style pay to play politics.

I’m revising my opinion.  Swallow’s done.  The sooner he realizes it the better for all concerned.  There are plenty of attorneys in Utah (and within the AG’s office) who would do a fine job as Attorney General.  Let’s get one of them in and move forward.

But while we should all be happy that we’re about to be rid of John Swallow (provided we keep the pressure on), we should also be quite concerned.

Utahns — and especially our state delegates — really need to ask themselves . . . how in the world did this guy get elected?  Because it’s not as if any of this should have taken us by surprise.

Daniel Burton of PubliusOnline, put up an excellent post this morning summarizing John Swallow’s political career in headlines — none of which were positive.  The only news the average Utahn had about John Swallow was about sketchy campaign tactics, a history of inappropriate lobbying procedures, and exaggeration regarding his legal abilities.

The information was front and center for everyone to see.

And plenty of people saw it, believe me.

Most of my Republican political associates saw it.  My attorney friends saw it.  In fact, every attorney I know opposed John Swallow for AG — regardless of whether they supported Dee Smith (the Democratic candidate) or Sean Reyes (the primary opponent).  Folks, it was really almost that universal among the man’s peers!

I opposed him repeatedly.  So did many, many others I know.  Swallow’s primary opponent, Sean Reyes, raised concerns in an official complaint (which was covered in the press) and got ridiculed for playing dirty — oh the irony!

But maybe we didn’t speak up loud enough, because the man nearly skated through convention as the GOP choice without a primary in a system that’s designed to be an equalizer for qualified candidates without money or name recognition.

Maybe people just don’t care about the race for attorney general when they’ve got a Presidential election and race for U.S. Senator.

But regardless of whether the position of Attorney General is as politically sexy as Governor or Senator, a man with John Swallow’s track record should not have gotten elected.  It’s a black eye for the state and undermines the good work done by the attorneys at the AG’s office — even the good work (and I’m sure there was some) done by Swallow himself as a Deputy AG.

I know many of liberal friends are talking this week about dominant party democracy and LDS political hegemony.

But I think we all just need to talk about law enforcement, ethics in politics, and out state’s very troubling refusal to engage with these issues on any adequate basis.  Because, people, if we (and I’m speaking broadly here) can’t even do our homework on a guy with issues as obvious as John Swallow’s, then situations like this are going to be the predictable end result.

What does this debacle say about Utah?  It says we’re too complacent when it comes to demanding transparency and upright conduct in our political leaders . . . even though we talk about it an awful lot.

We need to do two things.

First, we have a legislative session coming up, and we need to demand action from our legislature to put in place safeguards designed to reduce the likelihood that this happens again.  Second, and more importantly, we need to hold ourselves and our our neighborhood representatives accountable.  If you had a state delegate who voted for John Swallow you need to ask them why, and if you can’t get a satisfactory answer, well, then, you know what to do . . . .

Lets keep on this one.

 

 

Filed Under: Election 2012, Law, News, Opinion Tagged With: , , , , , , , ,

Brief Thoughts on John Swallow, the Tribune Article, and the Attorney General

January 12, 2013 by 9 Comments

Robert Gehrke, Utah’s best political reporter (IMHO), broke a story this morning that will have Utah politicos talking and arguing for a while:  Indicted Businessman Ties Swallow to Alleged Scheme.

The story contains allegations from indicted Utah businessman/philanthropist Jeremy Johnson that John Swallow, recently elected as Attorney General, worked with Johnson to help him try to bribe Harry Reid (through a third-party lobbying firm) in an attempt to stop an FTC investigation into Johnson’s business interests.

As you work your way through the article, the names of Utah’s legal-political elite appear everywhere, and no one comes away unscathed — with the exception, perhaps, of Dee Smith, the Democratic Candidate for Attorney General, who appears to have been brought (at least partially) up to speed on this in the days before the election and, despite obvious political self-interest, showed remarkable restraint by uttering nary a word (at least publicly).

The article reads a bit like a tragic comedy, with the characters working frantically on what seems to be an entirely quixotic effort to stall an FTC investigation by influencing a United States Senator who likely didn’t know that most these individuals existed until the Tribune’s story was published this morning.  The players come off as inept and naive, sincerely uncertain about just what it is that they’re doing, or have done, and its legal consequences.

People who follow this blog, or follow me on Twitter or Facebook, know that I actively (well, as actively as a blogger does) opposed John Swallow for Attorney General.  My concern was never about his character as much as his legal competency.  From my — admittedly very limited — interactions with him, he seemed much as he comes off in this article, as a nice, sincere person in over his head — whether with his claim to be “running” the Obamacare lawsuit despite having only the most rudimentary understanding of the legal principles involved or his sloppiness in continuing to lobby on behalf of friends while a Deputy Attorney General.

There may be additional facts that will cast the story in a different light.  We can assuredly expect attempts at character rehabilitation from all the main players, which will muddy the waters further before things start to become more clear.

All this will work itself out in time.

But there is one thing that I think is clear right now:  Utahns need to take more seriously the post of Attorney General and our responsibility to elect this state’s chief law enforcement officer.

Filed Under: Election 2012, Law, News, Opinion Tagged With: , , , , , , ,
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