5 Reasons why HealthCare.Gov isn’t Going to be Fixed by November 15 . . . or at all.

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Here are five reasons why I’m pretty sure that the Healthcare.Gov website isn’t likely to be done by November 15, or at all, unless they just scrap it and start over (each based on my own painful experience):

1.  The system still logs you out automatically every time you click on the “Learn” tab. Really? Have these folks never heard of sessions? The security is apparently good enough for everyone else. Not even other government sites inflict this kind of pain on users.

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2.  The system still sends you notifications about electronic messages that you cannot read. I apparently have multiple messages waiting for me in the “Healthcare.Gov Notification Center.” The only problem is that there is no Healthcare.Gov Notification Center . . . or any place to read your messages for that matter. I raised this issue with a Healthcare.Gov specialist over the phone, and he told me it was a known issue, and that if it wasn’t fixed by November 15, to give them a call and they would read my messages to me over the phone. Seriously?


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3.  The system is still littered with dead links. Even the “View Eligibility Results” button is a dead link. 100% dead. Has been for weeks (at least for me). Same issues with tons of other buttons, including the “Send This Information to Medicaid Button,” and, occasionally, the “Review and Submit Application Button.” The “Register to Vote” link is working, however. First things first!

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4.  No one seems to know what is going on. When I tried to get support using online chat, I was told to call telephone support. When I called telephone support, they couldn’t assist me because I had gotten too far in the process (i.e., I had been able to create an account). I was assigned a specialist who didn’t call me for two weeks, despite a next day appointment. I filled out an application over the phone that still hasn’t shown up on the website three weeks later, despite assurances that it was “in the system” and “linked to my account.”

5.  At one point last week, the online system simultaneously told me that my application was incomplete, that my children were at the “Initial Enrollment” stage of Utah’s CHIP Program (which I never tried to sign up for), that I was not eligible for Medicaid, and that my detailed eligibility results were ready. Of course, I couldn’t verify any of this inconsistent state of affairs because none of the links worked. Now, I am apparently un-enrolled in CHIP, my application is still incomplete, and my eligibility results are still ready (but the button I’m supposed to click to get them doesn’t work).

Despite its many problems, I always thought that this website would be worked out. Maybe it still will be.  But the more I interact with it, the more I’m becoming convinced that this is not going to work until the first attempt is scrapped and they start over.

It’s that bad.

I find it hard to fathom that our government is still using this nightmare to take people’s personal information (including my own!).  It seems like a recipe for disaster, and a sure lawsuit.  Political considerations aside, this whole thing should be shut down until it’s functioning on some basic level that can instill confidence in its users.

/rant

John Swallow’s Lost Data

John Swallow’s enjoyed a nice late summer-early fall reprieve thanks to the predominance of national political issues like Syria, the government shutdown, and the Obamacare launch.

But now, thanks to the Salt Lake Tribune and the state legislature, he’s back in the news in another story that makes you scratch your head and ask,” How in the world is this guy still running the state’s top law enforcement office?”  The Salt Lake Tribune reports that the House Investigative Committee’s investigation into John Swallow’s fitness to be A.G. has hit a snag — in the form of numerous missing electronic letters, which include emails, calendar entries, personal and work computer information, and personal cellphone information.  This quote should give you an idea of the scope of the missing records:

According to an affidavit by Andrew Melnick, one of the investigators working for the House committee, representatives of the attorney general’s office notified investigators Sept. 27 that a potentially large volume of Swallow’s official email was missing.

A Sept. 30 email from Brian Tarbet, general counsel to the attorney general, notified all employees in the office to retain any material that might be pertinent to the investigation.

That notice apparently marked the first time such a directive had been issued — despite numerous investigations into the conduct of Swallow and his Republican predecessor, Mark Shurtleff, including one by the U.S. Department of Justice, which acknowledged in January it was conducting such an inquiry.

Subsequent to the House subpoenas, Melnick said, it became clear that a “potentially significant number” of Swallow’s calendar entries from 2009 — when Swallow joined the office as Shurtleff’s chief deputy — to 2011 have disappeared.

In late 2012, Swallow asked for and received new desktop and laptop computers and a new handheld data device. The information on all of the old devices was deleted. At about the same time, Swallow replaced his personal cellphone.

Swallow’s home computer has stopped working. He has provided the hard drive to the committee, which has forensic experts working to retrieve the information.

Seriously?

The Attorney General’s home computer has now “stopped working”?  He replaced all his work computers and cell phone immediately after he was elected attorney general (and shortly before the Tribune broke the Jeremy Johnson story–very shortly apparently, as his home computer crashed in 2013 and the Jeremy Johnson story was first published on January 12, 2013)?  And there are deleted calendar entries from 2009-2011 — the very times the House committee is primarily concerned with investigating?

And what’s John Swallow’s explanation?  Here it is from his attorney (poor man):

Swallow’s attorney, Rod Snow, said Friday that Swallow’s office computers were swapped out sometime in 2012, part of a routine upgrade. The memory on the computers was wiped out and they were given to someone else in the office.

Snow said he had the technical experts his firm works with try to recover data from the machines, but they could not. Nor were they able to retrieve information from Swallow’s home computer, which crashed early this year.

Snow said both the replacement of Swallow’s office computers and the crash of his home unit happened before any investigation had been launched.

“Our view is we hope they recover everything, because they’re not going to find anything,” Snow said. “Exactly how much is missing, I don’t know. We don’t think there’s anything on there we need to worry about. We hope they can recover it.”

Wow, the machines were removed or crashed?  And all the data on the work computers of the state’s top law enforcement officer was simply erased, without, apparently, a second thought??  And it doesn’t look like backups were kept!!!!????  When I was at a larger firm, the backups were done to tape drives, one of which was swapped out and stored off site in case something happened to the office computer itself.  And this is not unusual practice.  It’s normal.  It (or an equivalent) is what many would say is the least a substantial law firm should do to keep in compliance with ethical obligations.  You’d figure that something would be left, right (and I suppose maybe there is and it’s just not coming through in the article)?

Yikes.

I’m pretty confident that our AG’s office would be outraged and would try to bury criminal defendants who came to them with a similar story for obstruction like this in a criminal proceeding.

And let me pause briefly to point out that I find it quite strange that we heard nothing about this from federal investigators . . . .

In my opinion, the whole thing is beyond fishy.  But then you already knew that if you took the time to read through my post, and my opinion doesn’t really matter anyway.

So, rather than just continuing to rant, I thought I’d briefly identify and discuss some potentially applicable laws that would govern this type of conduct, which might actually be helpful or informative to someone.  So without further ado, here are a few I identified this morning (in no particular order):

1. Obstruction of Justice (Utah Code Ann. 76-8-306).  State law prohibits obstruction of justice “with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense.”  There are two interesting principles involved here.  First, the offense of obstruction of justice, like all criminal conduct, requires some mental state — here it is the “intent” to to obstruct the investigation,  . . . prosecution, conviction, or punishment” of a criminal offense.  In Utah’s criminal code, “intent” is defined as the “conscious objective or desire to engage in the conduct or cause the result.”  Obviously, intent can be proven circumstantially, but since obstruction of justice is a criminal offense, it needs to be proven beyond a reasonable doubt.  Second, obstruction is limited to situations where the conduct involved constitutes a criminal offense.  John Swallow has made a lot of noise about the fact that he hasn’t been charged with a crime and that his conduct may not have been a violation of any criminal law.  I (and many, many others) have been very vocal about why that shouldn’t matter with respect to the standard for impeachment.  But it would appear to matter when it comes to conviction for obstruction of justice.  Because it does not appear to be a crime to obstruct a civil proceeding or an investigation for something other than a criminal offense (although there are other sanctions, as discussed below).

2. Falsification of Alteration of a Government Record (Utah Code Ann. 76-8-511).  Falsification or Alteration of  Government Record is a Class B Misdemeanor and occurs when a person “intentionally destroys, conceals, or otherwise impairs the verity or availability of the information or records, knowing that the destruction, concealment, or impairment is unlawful.”  Again, there is an intent requirement, but the requirement that the falsification or alteration (which includes destruction or impairment) be in connection with a criminal offense is absent — the person must only have knowledge that their falsification or alteration is “unlawful.”  I can’t find where the term “unlawful” is specifically defined in the Utah Code, but in its ordinary meaning, it simply means not conforming with the requirements of law and doesn’t necessarily carry a criminal connotation.

3. Unofficial Misconduct (Utah Code Ann. 76-8-203).  The offense of Unofficial Misconduct is committed when a public official “knowingly withholds or retains from his successor in office or other person entitled to the official seal or any records, papers, documents, or other writings appertaining or belonging to his office or mutilates or destroys or takes away the same.”  The definition is a little ambiguous, but I read it to mean that Unofficial Misconduct occurs when a public official:

  1. Knowingly withholds or retains from his successor in office any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  2. Knowingly withholds or retains from an other person (not his successor in office) entitled to the official seal any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  3. Knowingly withholds or retains from an other person (not his successor in office or entitled to the official seal) entitled to any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;

I would assume that the House Investigative Committee is entitled, by virtue of its constitutional authority over investigations and accompanying subpoena power, the missing records.  Interestingly, the mental state requirement for this offense is “knowingly,” rather than “intentionally.”  The Utah Criminal Code defines “knowingly” as follows (see Utah Code Ann. 76-2-103(2)):

Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

4.  Stealing, mutilating, or destroying public records (Utah Code Ann. 76-8-411).  This offense can be committed by a “custodian” of government records (in which case it is a Third Degree Felony) or it can be committed by a person who is not a custodian (in which case it is a Class A Misdemeanor).  The term “custodian” is not defined in the statute.  A person commits this offense when they, as to any record “filed or deposited in any public office, or placed in his hands for any purpose,” “steal[s], willfully destroy[s], mutilat[es], defac[es], alter[s], falsif[ies], remov[es], or secret[es] the whole or any part thereof, or who permits any other person so to do.”

5. Tampering with Evidence (Utah Code Ann. 76-8-510.5).  This one is important enough that the relevant portions deserve to be quoted substantially intact:

 A person is guilty of tampering with evidence if, believing that an official proceeding or investigation is pending or about to be instituted, or with the intent to prevent an official proceeding or investigation or to prevent the production of any thing or item which reasonably would be anticipated to be evidence in the official proceeding or investigation, the person knowingly or intentionally:

(a) alters, destroys, conceals, or removes any thing or item with the purpose of impairing the veracity or availability of the thing or item in the proceeding or investigation; or

(b) makes, presents, or uses any thing or item which the person knows to be false with the purpose of deceiving a public servant or any other party who is or may be engaged in the proceeding or investigation.

There you go. No requirement that it be in connection with a criminal proceeding and a relatively soft intent requirement.  This seems to be the provision most applicable to John Swallow’s situation.  If the tampering occurs to obstruct or prevent an “official proceeding,” it is a Third Degree Felony, otherwise, it is a Class A Misdemeanor. An “official proceeding” is defined as a civil trial, administration action, examination under oath, or other civil or administrative process.

6. Spoliation of Evidence.  In normal civil litigation, parties are required to preserve evidence — including electronic evidence — once they know or suspect that litigation over a subject may be forthcoming.  That is, the obligation to preserve evidence does not necessarily arise with the initiation of litigation, it arises when you suspect that litigation may be forthcoming.  If you purposefully destroy evidence, or even if you negligently fail to preserve it, courts can impose sanctions on you, which sanction may include an adverse inference against on the matter for which evidence is no longer available (in other words, the court with decree that you were hiding something and assume the worst).  While we’re not in a court of law, obviously nothing would stop the House Investigative Committee from making such inferences in its investigation.

As I’ve said before, we already know all we need to know about John Swallow’s character and competency as it relates to his fitness as Attorney General.  He’s refused to do the right thing and resign, and, as a result, forced an official legislative investigation, which he claimed to have welcomed.  Now he’s either intentionally sabotaged the investigations into his conduct or is guilty of gross negligence regarding the preservation of records.  It’s beyond time for him to go.

I for one, am glad to see the House Investigative Committee is conducting a serious investigation and holding his feet to the fire.

President Obama and Syria

In his quiet, solitary moments, I suspect President Obama might be asking himself questions like, “how did this all happen?” and  ”how in the world, did I get here?”

Those are natural, reflective questions.  If I were in his place, they’d certainly be running through my mind.  Certainly this wasn’t how he had planned it would be.

But, as President Obama has learned over the last few years, when you’re President of the United States, sometimes, events take you where they will.

The best laid plans . . . .

And so, there he was last week, President Barack Obama, making the case to the American people and skeptical world allies about intelligence related to a Middle East dictator’s use of chemical weapons and the necessity of military response.

The players change, but the story remains the same . . . .

You wouldn’t want to be President Obama right now.

He faces what is almost certainly a no-win situation when it comes to Syria.  And he may have just made his decision tougher.

Last week, the question was only (yes, I know, “only“) whether to intervene (i.e., initiate a military strike) or not to intervene (i.e., just talk tougher).  Everyone assumed that intervention would be the President’s decision, and the President’s decision alone.

But yesterday, President Obama decided he would seek the “approval” of Congress prior to any intervention.  So now, the questions are, do we intervene or not to intervene, and who decides?

Now, not only does he face potential criticism for intervening (or not intervening) in Syria, he faces criticism for refusing to accept responsibility if intervention doesn’t happen, for having told the American people that our national security demands intervention but that he’ll leave it up to an dysfunctional Congress to act or not in the weeks ahead, or, for — heaven forbid — deciding to act even if Congress fails to grant its “approval.”

Can you imagine the position he’ll have put himself in the — seemingly likely — scenario where he loses the Congressional vote?

He won’t be able to blame the resulting mess on Congress.  Not one bit.  President Obama would not only be ridiculed for apparently being unwilling to take sole responsibility for national security, but he’d be doubly ridiculed (and rightly so, in my view) for trying to blame someone else for it.

So, it’s hard to see how this decision makes things any easier for President Obama — which is, I’m sure, what’s got his close advisors all mystified.

So why do this?

Well, I can think of a couple reasons.  Perhaps the President is doing this out of a principled commitment to separation of powers.  Such an explanation is ridiculed in these cynical days, and seems unlikely, but perhaps President Obama feels that Presidents should have a more limited role in initiating conflict and has decided to use Syria — currently a relatively small matter despite all the hubub surrounding it — to take his stand on the issue.  After all, he’s given a lot of people exactly what they’ve clamored about for years — put the outcome of a military intervention in the hands of Congess when the outcome is doubtful.

I’m skeptical.  But let’s at least acknowledge the possibility.

So, what’s the second potential (and, I suspect, more likely) reason?  Well, perhaps President Obama has determined that he has some time to let things play out further.  You’ll notice in his speech yesterday he didn’t even call Congress back into session to vote.  Let that sink in for a minute, folks.  The President said, this is a matter of our national security . . . that we’ll deal with this when Congress is back in town.  Granted, Congress is back in town the middle of next week.  But the lack of urgency was startling — in his speech President Obama yet again welcomed the debate.

These are not the actions of a confident man committed to intervention.  These are the actions of a man who feels like he’s being dragged into this thing kicking and screaming, and is looking for a way out.  Though not, I suspect, from Congress, for the reasons I outlined above.

President Obama, for all his faults, is a smart guy.  He knows he can’t unload responsibility for this on any else — he made the comments about the red line, he made the initial decision to act — this is his all the way.  But he can buy himself a little more time to act, during which he do what he (in his own mind at least) does best — make a case for his preferred scenario.

The strategy is not without big risks.  But, at this point, I think he may feel that it would be hard for him to look any worse than he does right now.

When Britain backed out last week, President Obama became, to an extent, George W. Bush Part II — the unilateral American cowboy about to enter into an ill-defined military conflict with a Middle Eastern dictator.  So, my assessment of the situation is that he thought to himself, well, it would be hard for me to look much worse at this point.  If I go to Congress and win, I’ll look better.  If I go to Congress and lose, I’ll take the hit, but at least I won’t have unilaterally started a Middle Eastern War.  And, who knows, by the time Congress gets around to acting, maybe something will have changed to help me out of this mess.

The calculus is understandable.  But, of course, the same type of “let’s debate it and let it play out” philosophy can be perceived as (and probably is, to an extent) indecisiveness and may have helped to create the situation we’re now in.

George W. Bush famously (and publicly) embraced his role as “The Decider.”  President Obama clearly does not.  He’s a reluctant decision maker  who prefers to let things play out, to make cases, to discuss, and to inspire.  No one should be surprised that he approaches things differently.  Now we’re seeing President Obama’s approach in action, for better or worse, in a situation that invites comparison.

It will be interesting to watch.

The Obamacare Disaster — Time to Stop Gloating and Get Serious About Reform

Ever since President Obama released the news last week that he was delaying implementation of Obamacare’s employer mandate requirement, there has been an awful lot of gloating from Republicans:

“Obamacare is so poorly designed, it can’t even be implemented in 4 years!”

“The big government philosophy is collapsing under its own weight!”

“Even Obama is now forced to acknowledge that the law is unpopular and an unacceptable drag on economic growth!”

“He’s undermining the Constitution to avoid the consequences of his own major domestic policy ‘achievement!’”

It’s like the GOP has won the lottery.  After failing to kill Obamacare in Congress and in the courts, Obamacare might nonetheless die because President Obama is unwilling and unable to implement it (and he’s had 4 years, folks — *four* — with an army of federal workers and private contractors at his disposal).

Republicans are now looking at other strategies designed to sink the law before it even gets started — they’ll push for a delay in the individual mandate (after all, if it would be burdensome and unfair to require employers to comply, why make individuals?), and absent a such a voluntary concession from Washington (which really would kill Obamacare for good, one would think) Republicans might attempt to pass a law that prohibits the government from providing subsidies for mandatory health insurance without income and employer verification (essentially eliminating the subsidies that would make care under the “Affordable Care Act” somewhat affordable because employer verification will be difficult to impossible given the delay in implementation on the employer mandate).

Yeah, America! USA! USA! USA! . . . .

Now, anyone who has read this blog knows that I’m not particularly fond of Obamacare.  I thought it was poorly designed and standards for implementation were unclear and relied too much on implementation by the laws avowed enemies.  It wasn’t an actual solution to the problems restricting Americans’ access to healthcare so much as it was an attempt to achieve a longtime political goal — universal coverage.  I mean, c’mon — the solution to rising healthcare costs is subsidizing premiums paid to private insurers and imposing economic costs on employers who don’t fire employees or cut their hours??!!  Obamacare was unpopular when it was passed, and implementation was delayed to avoid potential political consequences.  It was passed in the midst of a financial crisis only with the understanding that “this is a first step” and “we’ll fix it later.”  That’s a recipe for success . . . .

Don’t get me wrong — Obamacare does some nice things.  But government gets into trouble when it tries to do nice things instead of solving problems (a byproduct of which are some nice things).  Heck, government often gets into trouble sometimes when it actually sets out to solve a problem . . . .

Somewhat predictably, the effort at healthcare reform has degenerated into a near disaster (President Obama’s attempts at damage control notwithstanding).

  • It’s a disaster that Obamacare hasn’t been implemented nearly four years after it was passed.  I mean, really, how does this happen?
  • It’s a disaster that companies have spent all this time and money — and already laid people off or cut their hours, don’t forget — getting ready to comply with a law whose key provisions have now been delayed.  And why was the law delayed?  Because compliance is too complex and too costly?  Under what rationale do those problems go away in a year?
  • It’s a disaster that despite that with all of Obamacare’s problems, shortcomings, and practical obstacles, the Democrats are inflexibly committed to a law that’s a sinking ship.
  • And let me also say that it’s a disaster, that despite four years spent fretting, complaining, attempting to repeal, and litigating, the GOP still has no alternative proposal.

Yes, GOP — you don’t get off easy on this, either.  You’ve spent the last three years obsessively trying to sink this law –ostensibly for the good of the country rather than your own political benefit — and have yet to seriously pursue or promote a single meaningful alternative to solve the real problems of rising healthcare costs and restricted access, especially to preventative care.  This country is suspicious and wary of Obamacare (and rightfully so, in my view) but it is crying out for solutions to the problem of rising healthcare costs — for healthcare reform that actually makes sense.  And your only response is to make sure that President Obama and the Democrats “own” a bad law??!!  That’s unacceptable.  Oh, and it’s a losing strategy in the end.  Want to make sure that Obamacare survives, is resurrected, or reincarnated?  Keep on keeping on with the opposition only . . . .

We make fun of Canada and England for socialized medicine, and yet this is what our “best efforts” are getting us?

There are some alternative paths out there, including national health.  But take a look at the links below, which discuss some more market-oriented reforms to get you started thinking (most of which, by the way, contain components of Obamacare):

http://blogs.the-american-interest.com/wrm/2013/05/30/what-real-health-care-reform-looks-like/

http://www.nationalaffairs.com/publications/detail/how-to-replace-obamacare

http://money.cnn.com/2009/08/18/news/economy/obamacare_alternative.fortune/

http://douthat.blogs.nytimes.com/2013/05/30/what-is-reform-conservatism/

http://blogs.the-american-interest.com/wrm/2012/03/29/the-health-care-disaster-and-the-miseries-of-blue/

It’s beyond time to get serious about real reform to the problem of healthcare costs.  Put aside cherished political goals and solve the problem.  It’s solvable, so let’s get going.

The Voting Rights Act . . . P.S. It’s Still There . . . .

I don’t get all the outrage over the Supreme Court’s Voting Rights Act decision (I mean, I suppose I get it from a political perspective, maybe, but otherwise, I just don’t get it at all).

According to most headlines you’ve read today, the Supreme Court “gutted” the Voting Rights Act.

How?

Simply by saying that, during a time when Congress is so divided as to be virtually ineffective at anything, the criteria upon which the preclearance requirements were based bore no rational relation to the goal of enforcing the constitutionally-guaranteed right to vote and that, if Congress wanted to continue to require pre clearance it must update its criteria to reflect current realities and concerns.

The Supreme Court’s holding seems to be little more than common sense and basic justice.  To put it in legal terms, there must be a rational relation between the means chosen by Congress and the legitimate end Congress is pursuing.  To put it colloquially: “The punishment must fit the crime.”

But, the Supreme Court’s commonsense decision has got people up in arms, warning that a new era of racially motivated voter suppression is at hand and about to be unleashed on the public now that the Voting Rights Act has been dismantled by a politically-motivated Supreme Court.

Of course, one wonders whether there would be any outrage, or talk about “gutting,” at all, if the same decision came down during a time when Democrats had a majority of the seats in each house of Congress?  Say, in early 2009?  I suspect not, as legislation redefining the criteria for preclearance would, I’m sure, be quickly forthcoming.

Furthermore, amidst all the handwringing, let’s not forget that the Voting Rights Act is more than the preclearance formula of Section 4.  Congressional authority to require states to “preclear” voting laws under Section 5 was expressly upheld (and how could it be otherwise, given the express language of the 15th Amendment?) and that other significant provisions of the Voting Rights Act — such as Section 2, which authorizes litigation (whether commenced by individuals or by the Justice Department) against unconstitutional voting laws and injunctive relief in appropriate cases — remain in full effect.

Apparently, the Supreme Court did a rather shoddy job of gutting . . . .

Today’s decision doesn’t insulate a state from a challenge brought under the 15th Amendment to an unjust voting law.

It simply allows all states (as opposed to just most of them) to pass voting laws without first obtaining the permission of the federal government until Congress passes laws updating the criteria upon which any preclearance requirement is based.

I can hear my friends right now – but Congress is dysfunctional, it won’t pass another law, the Supreme Court knows it, and that’s precisely the point! 

Actually, I don’t think it’s the point at all.

The point is that Congress has the obligation to proactively enforce the 15th Amendment to the Constitution, and Congress has the obligation to pass laws that are rationally related to their legitimate purposes.

The enforcement provision of the 15th Amendment states (as do many others) that:  ”The Congress shall have power to enforce this article by appropriate legislation.”

This means that the Amendment is not self-executing; the burden is on Congress to proactively enforce it.  Absent proactive enforcement of the amendment via legislation, the only mechanism through which it is properly enforced is in court via a judicial challenge brought to a state or federal law that violates the constitutional provision.

The 15th Amendment doesn’t guarantee legislation.  It gives Congress the authority to act if a majority of its members so choose.

While it’s true that Congress acted in 1965, and again with each subsequent reauthorization or extension, a law passed under circumstances which constitutionally justified it may become, through inaction, the course of time, or changing events, constitutionally infirm.  And that’s what happened here.

And now that it’s happened, it’s Congress’ duty to act again; not the Court’s.

Congress understands this.

Why else would it have gone through the process of reauthorizing, and occasionally extending or adjusting, the Section 4 formula over the past 50 years?  Congress knew that you couldn’t permanently apply preclearance rules based a formula created in 1965 to states in perpetuity without running afoul of the Constitution.  The repeated temporary reauthorizations were acknowledgements of this fact.

But if you can’t permanently apply a preclearance formula and expect to be immune from constitutional challenge, you can’t subvert that prohibition by effectively applying a permanent formula through repeated reauthorizations of the same old formula (unless, of course, you’re Walt Disney protecting its rights to Mickey Mouse…but that’s a story for another day).

And so here we are.

One would think that today’s decision would be something to celebrate.  It’s a recognition of the effectiveness of a law that has served its purpose.  To the extent there’s an emotional reaction over today’s decision, it should be one of satisfaction and appreciation for a law that’s served its purpose well (and that’s a relatively rare compliment).

But our sense of gratitude for the Voting Rights Act’s preclearance provisions shouldn’t blind us to the fact that it’s not justified any longer.

The battle over voting rights has been fought, and the ground’s been held.

There may be skirmishes that still break out from time to time, but the provisions that remain in place are more than adequate to deal with what may come.

So let’s move on.

John Swallow’s Attempt to Intimidate the Utah Legislature

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.

What To Do With Utah’s Caucus System?

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 face 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 is 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 worse 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.

 

Some Random Political Quick Hits

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.

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

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.

John Swallow . . . Quietly Still There . . .

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 . . . .