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Can You Have Your Cake and Free Speech Too? The Supreme Court and the Masterpiece Cakeshop Case

Martin Naunov, Middlebury Class of ’17 and currently a Litigation Fellow in the Office of General Counsel at the Hearst Corporation, waited in line for several days three weeks ago in order to hear oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.   The case centers on whether compelling a cakeshop owner to bake a cake for a same-sex wedding violates the shop owner’s free speech rights.  Martin’s interest in the case derives in part from his senior honors thesis at Middlebury, which used the Masterpiece Cakeshop and Elane Photography v. Willock cases to explore the conflict between the interest in ensuring equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech. Here’s Martin’s (slightly edited) report from his experiences listening to the oral arguments:

“In 2012, Charlie Craig and David Mullins visited Masterpiece, a bakery in Colorado, and requested a cake for their same-sex wedding. The owner of Masterpiece, Jack Phillips, declined their request, telling the couple that Masterpiece does not make cakes for same-sex weddings.

If Masterpiece were a bakery in a state like Texas, such rejection would have had no legal repercussions. Even though every state has a public accommodation law that prohibits discrimination on the basis of sex, race, and national origin, only 22 states extend this protection to sexual orientation discrimination. Colorado is one of these 22 states. As such, the same-sex couple sued and won.

Mr. Phillips, however, argues that the requirement to provide wedding cakes regardless of the couple’s sexual orientation, violates his rights to freedom of speech and free exercise of religion protected by the First Amendment. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is now before the U.S. Supreme Court. The significance of this case is evidenced by the attention it has gotten; more than a hundred amicus briefs have been filed and more than two dozen people, myself included, began camping outside the Court on Friday for a seat for the Tuesday’s oral arguments. Sometime around June this year, the Supreme Court is expected to answer the following question: Does the First Amendment shield a baker—or wedding vendors in general—from civil rights laws?

Relying on the compelled speech doctrine—which fundamentally means that the right to free speech embraces not just the right to speak but also the right not to—Jack Phillips argues that a requirement to create a cake for a same-sex ceremony compels him to convey endorsement of same-sex marriage, something at odds with his religious beliefs. He claims that, as an artist, he communicates through his cakes.

But if a baker is an artist that speaks through his commercial cakes, then who else can claim exemption from civil rights laws? This is the question that the Court’s liberal justices zeroed in on.

What about the jeweler who designs the rings? What about the hair stylist? The makeup artist? Justice Kagan asked during Tuesday’s oral arguments. “No,” responded Kristen Waggoner, who argued for the baker.  “[But] it’s called an artist. It’s the makeup artist.” Justice Kagan retorted, eliciting a round of laughter from the audience. More hypotheticals followed. According to Ms. Waggoner, tailors, chefs, and architects are generally not engaged in speech, and would therefore not be able to claim exemption from public accommodation laws. “Whoa!” Justice Kagan interjected. “The baker is engaged in speech, but the chef is not engaged in speech?”

“The reason we’re asking these questions,” Justice Breyer explained, “is because obviously we want some kind of distinction that will not undermine every civil-rights law, from the year two.”

The conservative justices, including the swing justice, Justice Kennedy, openly wondered whether Colorado’s anti-discriminatory law is tainted by religious animus.  “Tolerance,” Justice Kennedy lectured the state’s attorney, “is essential in a free society. And tolerance is most meaningful when it’s mutual.”

This comment made clear that Justice Kennedy sympathized with Mr. Phillips and encouraged speculation that he will side with the baker.

However sympathetic towards Mr. Phillips Justice Kennedy might be, the Justice also seems to be cognizant that a decision in the baker’s favor could set a perilous precedent with the potential to erode LGBT rights and undermine civil rights laws across the nation. During oral arguments, he expressed his concern that if the baker were to prevail, businesses would be able to put signs on their windows saying “we do not bake cakes for gay weddings.” Wouldn’t that be “an affront to the gay community?” he asked the government’s attorney rhetorically.

It is impossible to predict with anything even close to certainty how the swing Justice will vote. What is clearer, however, is that mustering Justice Kennedy’s vote in favor of the baker is likely contingent on the Court’s ability to come up with a clear limiting principle—some kind of ingenious “distinction” between Mr. Phillips and the many other businesses who would like to deny service to gay couples or other historically oppressed communities. A distinction that answers Justice Kagan’s question: how come the baker speaks but the chef doesn’t?

Now, many might wonder: What’s speech got to do with this? In other words, how did a case that clearly belongs in the docket of religious liberty find its way in free speech jurisprudence? The answer to this question has to do with the nature and the Court’s reading of both the Free Exercise Clause and the Free Speech Clause.

First, there are countless religious denominations and unique religious practices that could come in conflict with government regulations. (For example, one of my personal favorites is a 1985 case where the defendant claimed that dressing up like chicken in Court is part of his religious belief). As Justice Scalia wrote in Smith, the case that controls Free Exercise jurisprudence, “[t]o make an individual’s obligation to obey a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ [is to] permit him, by virtue of his beliefs, ‘to become a law unto himself.’” As such, the Court pronounced the following rule for determining whether a given law contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Since public accommodation laws have always been judged neutral and generally applicable, religious vendors stand little chance of obtaining exemptions under current Free Exercise doctrine.

Equally (if not more) interesting, however, is how we have arrived at the point where it is even conceivable that a requirement that businesses provide services on an equal basis raises a free speech issue.

The Court’s liberal justices repeatedly brought up the Supreme Court cases where entities like restaurants and universities claimed, without success, exemptions from rules that prohibited discrimination against black people and interracial couples. The truth is, however, that these plaintiffs made a Free Exercise argument, not a Free Speech one. Yes, allowing African Americans and whites to sit and eat together in your restaurant, especially in the South and during a time when this rarely happened, communicated at least some level of acceptance, if not endorsement, of racial integration. Yes, a requirement to serve African Americans compelled waiters to speak to and take orders from them. But no one even entertained the idea that just because the regulation indirectly necessitated some speech and expression, it raises a First Amendment Free Speech issue.

However, things have changed significantly since then and the Free Speech Clause has expanded into areas long deemed utterly unrelated to free speech. Today the typical First Amendment litigant is not a distributer of anti-draft pamphlets or a flag-burner but a commercial entity challenging a law that has very little to do with “freedom of speech” but a lot to do with business regulations. For example, in recent years, courts have upheld numerous First Amendment claims by companies against compelled commercial speech. The D.C. Circuit, for instance, found unconstitutional the FDA requirement that tobacco companies place graphic warning labels on cigarette packages. On First Amendment grounds, the Second District granted preliminary injunction against a Vermont law requiring labeling of dairy products derived from cows treated with genetically engineered growth hormone. According to a major pornography production company, the First Amendment shielded the company from laws that required their employees, porn actors, to wear condoms.

The major factor that has permitted this First Amendment expansionism is the common conflation between the everyday meaning of speech and “speech” within the meaning of “freedom of speech,” i.e. “speech” within the ambit of the First Amendment.

Namely, there are plenty of forms of speech that do not implicate “freedom of speech”: insider trading, illegal contracts, threats, blackmail, subpoena to testify, and so on. These forms of speech are not only not protected by the First Amendment; they are not covered by it in the first place. Discussing similar examples, Professor Schauer explains that “[i]t is not that regulation of such acts meets the heightened burden of justification implicit in the Free Speech Principle. Rather, such acts are not within the scope of the principle at all.”[1] In other words, it is simply not the case that every time a law restricts speech—or compels speech—it curtails “freedom of speech.”

As such, the answer to “Is this business speaking, be that literally or symbolically?” does not—or should not—decide the First Amendment issue. In the words of Justice Kennedy: “The problem for [the baker’s argument] is that so many examples [of other vendors also]…do involve speech. It means that there’s basically an ability to boycott gay marriages.” What courts should care about is whether compelling the business to do something—be that baking a cake or taking wedding photos, which could definitely entail speech—raises a free speech issue. As Professor Schauer explains, “[Speech] must be defined by the purpose of a deep theory of freedom of speech, and not by anything the word ‘speech’ might mean in ordinary talk.”[2]

This, too, however, is easier said than done.

[1] Fredrick Schauer, Free Speech: A Philosophical Enquiry 92 (1982)

[2] Fredrick Schauer, Free Speech: A Philosophical Enquiry 91-92 (1982)”

 

It Was The Best of Times, It Was The Worst of Times: A Tale of Two Bills

It was the best of times. It was the worst of times.

Five months ago, a seemingly dysfunctional Republican Party watched as three of its own members torpedoed a last-ditch effort in the Senate to keep efforts to repeal Obamacare alive.  That outcome, highlight by John McCain’s “no” vote in the wee hours of the morning on a so-called “skinny” repeal bill, not only appeared to end Republicans’ seven-year effort to repeal Obama’s signature legislative accomplishment.  It also highlighted the inability of the Republican Party to legislate despite holding majorities in both congressional chambers.  The failure prompted a furious President Trump, who had made repealing Obamacare a cornerstone of his 2016 presidential campaign, to lash out on twitter at party leaders for  “letting the American people down.”

Why did the repeal effort fail? As Kate Reinmuth and I describe in our study  (gated) of the failed Republican effort, while Republicans were united on the need to repeal Obamacare, they could not agree on what to put in its place.  Moderates like Lisa Murkowski (R-AK) and Susan Collins (R-ME) worried about the impact repeal would have on insurance premiums and on Medicaid recipients in their home states. McCain expressed concern that the House would simply pass the Senate skinny bill, rather than go to conference as Senate Majority Leader Mitch McConnell promised in order to hash out a more comprehensive repeal bill that could pass both chambers. Some Republicans, like Senator Rand Paul (R-KY), worried that the repeal bill did not go far enough. In an era of deeply polarized congressional parties, and with a slim 4-vote margin in the Senate, Republicans could not afford more than two Senate defections.  They ended up with three.  However, even if the “skinny” bill has squeaked through the Senate, we argue that it was still very unlikely that a more complete repeal bill would have made it through Congress, given the lack of Republican consensus on what to do after repeal.

Today, that same “dysfunctional” party is poised to pass the most sweeping tax reform bill in three decades, one that promises to roll back taxes for almost everyone – at least in the short term – and, not incidentally, essentially removes the individual insurance mandate that is a cornerstone of Obamacare and which could hasten its demise. The Senate passed the bill early Wednesday morning on a straight party vote, 51-48 (with McCain sitting out the vote as he recuperates at home from cancer treatment.) An earlier version passed the House, 227-203, with only 12 Republicans – along with every Democrat – voting no.  Due to the removal in the Senate of three provisions that violated Senate parliamentary procedure, the House will need to revote on the tax measure, but passage appears to be a formality at this point, and it is all but certain that President Trump will sign this tax bill into law before Christmas.

What explains the turnabout, particularly since according to the Congressional Budget Office projections the tax bill will impact the health insurance market in ways similar to that of the earlier repeal effort?  In part, it reflects the Republican Party’s ability to make side payments on the tax bill to potentially wavering senators, including Murkowski and Collins, in order to earn their votes. The tax bill contains a provision that opens up Alaska’s Arctic National Wildlife Refuge (ANWR) to oil and gas drilling – something Murkowski has sought for a number of years.  Collins received promises from the Party leadership that they would take up two bills designed to stabilize the health insurance market in the wake of the elimination of penalties for not buying health insurance.   McCain backed the tax reform bill in part for what he saw as a return to some semblance of “regular order” in the Senate, although Democrats and other critics will certainly take issue with that characterization of the tax reform process.

But there is a more fundamental reason why tax legislation passed while the repeal effort failed: cutting taxes embodies a long-held fundamental principle of the Republican Party, one to which almost all Republican congressional members express fealty.  Commitment to that principle was strong enough to override concerns some had expressed during the earlier repeal effort regarding the impact of gutting the individual mandate.  As such, it is a reminder that the members of both parties are, first and foremost, partisan ideologues who are strongly committed to their party’s basic tenets.   For all the media talk about satiating party donors, or catering to the rich, the reality is that for Republicans, cutting taxes is as fundamental to their partisan identity as it is for New Englanders to root for the Red Sox.  It is part of their genetic heritage. If you can’t support tax cuts, it’s hard to understand why you call yourself a member of the Republican Party in Congress.

Moreover, despite claims that the tax bill is unpopular, Republicans believe that in an era of deeply polarized parties that are relatively evenly-matched at the national level, it is in their electoral interest to vote together to act in support of party principles, including tax cuts, and to prevent the other Party from reaching its legislative objectives.  In this regard, it is worth remembering that the 2016 election was the most nationalized in at least six decades. By nationalized, I mean that the electoral fortunes of Representatives and Senators are increasingly linked to constituents’ willingness to credit or blame the political parties as a whole for the state of the nation, rather than simply voting on the basis of their individual legislator’s record.  One way to estimate the relative influence of national versus local forces is to regress the outcome of the House vote in any given election on the previous House vote and on the most recent presidential vote in that House district, while controlling for incumbency and district partisanship.  The coefficients on the House variable serve as a proxy for local influences, and the one on the presidential variable captures national tides.  Drawing on data gathered by a number of my research assistants over the years, I have been using this approach to document the relative growth in the nationalization of House elections dating back to 1952.  As the chart below indicates, elections have become increasingly nationalized since the mid-1980’s, and in 2016 the House experienced the most nationalized elections yet measured for a presidential election year.

 

As the next chart shows, there is a similar trend in House midterm elections: an increase in nationalization dating back to the 1980’s, with 2014 showing the highest rate of nationalization to date.

Although detecting similar trends in Senate races is more difficult because there are fewer of them and because Senate cohorts are elected at different intervals, there is some evidence, such as the decline in states that split their Senate contingent between two parties, to suggest that Senate elections have become more nationalized as well. Consistent with this claim, in 2016, for the first time since the Senate was elected through a popular vote, every state that elected a Republican candidate for Senate also voted for the Republican presidential candidate, and every state that elected a Democratic Senate candidate voted for the Democratic presidential standard bearer.   In short, there is no reason to believe that Senate races are any less susceptible to the forces driving nationalization.

But won’t Republicans pay an electoral price in 2018 for backing an unpopular tax bill?  Perhaps. But it is worth remembering that for many Republicans occupying relatively safe seats, the bigger perceived electoral threat is not from their Democratic opponent in the general election – it is from partisan ideologues within their own party who often mount primary challenges backed financially by small donors occupying the party’s ideological extremes.  In this regard it is worth noting that so far, polling suggests the bill is viewed more favorably by Republican voters, with more than 70% expressing support for the legislation in a recent Monmouth survey.  Moreover, as tax bills are increasingly passed on an almost straight party line process, it is also true that they seem to be less popular.  For Republicans, the hope is that much of the current opposition to the tax bill reflects the public’s distaste with the partisan nature of the legislative process, as opposed to the details of the tax bill itself.  If they are wrong, however, they may suffer an electoral backlash in the 2018 midterm similar to what Democrats experienced in the 2010 midterms after passing an economic stimulus bill and Obamcare on almost mirror image straight party-line votes.

As the cable news talking heads engage in their (usually ill-informed) post tax reform punditry, it is worth recalling the words of another, more astute political analyst: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

And, in the Spirit of Dickens – and of the Season, I give the last word to Tiny Tim!

 

Why The Repeal Effort Failed: There Was No There, There

Most of you, I suspect, did not find out until you woke up this morning that the Republicans’ 7-year effort to repeal Obama died by one vote in the Senate very early today. Republicans had pinned their hopes on a pared-down repeal bill – the so-called “skinny bill” – that they hoped would attract enough party support to go to a conference with the House, which passed its own repeal bill by a vote of 217-213 in early May.  It was the House bill that was the basis for the Senate debate and the hope among Republicans was that by getting an amended bill to conference, party members could work out their differences and agree on legislation that would repeal and replace Obamacare.  Alas, it was not to be.  With Vice President Pence waiting to cast the tiebreaking vote, three Republicans: Susan Collins (Maine), Lisa Murkowski (Alaska) and John McCain (Arizona), all broke party ranks, and it was enough to send the Senate bill down to defeat 51-49.

The defections by Collins and Murkowski were no surprise, of course. They were two of only three Republican Senators (Dean Heller was the third) to vote against both the Senate counterpart to the House health care bill, and a bill designed to achieve straight repeal without a replacement of Obamacare.  But heading into the final vote early this morning McCain’s vote remained a mystery.  He, of course, had heightened the drama by making a dramatic return to the Senate two days before to support a motion to proceed on debating the bill, which then passed the Senate when Pence cast the tiebreaking vote. That set the stage for a series of votes to amend the House bill that unfolded over the next two days, culminating with the final vote this morning.  In the lead up to that vote, McCain, along with his Senate colleague and good friend Lindsay Graham, and Ron Johnson, had expressed worry that if the pared-down “skinny” bill passed the Senate, the House might simply vote to pass it as is – something many senators, including those three, opposed.  Despite assurances from House Speaker Paul Ryan that the House would, in fact, go to conference if the pared-down bill passed the Senate, McCain did not seem convinced.  As many observers noted, many Senate Republicans were in the awkward position of having to vote for a bill that they did not want to see become law, in the hope that something better would result.

McCain seemed unpersuaded that this was the route to take. As Senators milled about just prior to voting on the final bill, he could be seen laughing with his Democratic counterparts. Those of us watching on C-Span tried to interpret his body language. McCain deliberately heightened the suspense by telling reporters stationed outside the Senate floor to “watch the show.” At one point he left the floor, reportedly to take a phone call from President Trump.  If so, McCain remained unmoved. He returned to the floor and, in a dramatic moment, barked “No” when queried as to his vote, and marched off, producing gasps and some applause which Senate minority leader Chuck Schumer quickly tried to stifle. But the die had been cast.

This morning McCain explained that his opposition was motivated in large part by the process in which the pared-down bill had been written.  “We must now return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of the aisle, heed the recommendations of nation’s governors, and produce a bill that finally delivers affordable health care for the American people,” McCain’s statement read. This is probably wishful thinking on his part, if he believes it at all.  It is true that Mitch McConnell, the Senate Majority leader, put this bill together entirely behind closed doors, and at the last minute, bypassing the committee system entirely – a process about which Democrats complained bitterly. But the reality is that no Democrat was going to vote for a health care repeal bill supported by Republicans no matter how transparent the process.  And McConnell’s decision to craft this bill outside the traditional lawmaking system is really the culmination of a long-term process in which legislating is increasingly conducted using unorthodox means – something the late, great Barbara Sinclair masterfully documented in a series of congressional studies. The reason for this, of course, is that in an era of deeply divided congressional parties, the textbook lawmaking process taught to a generation (cue School House Rock video) has become increasingly dysfunctional, forcing party leaders to devise creative ways to shield legislation from the oppositions’ efforts to obstruct and defeat it by any means.

This may not be the ideal way to make legislative sausage.  But it increasingly has become the only viable method for doing so. Despite his herculean efforts to shepherd the bill to a conference, however, McConnell and Republicans fell one vote short. For the diehards among us who study this stuff for a living, watching the Senate vote in the wee hours was about as dramatic an event as you are likely to see in Congress.  (It’s too bad C-Span2 didn’t sell advertising commercials – they would have made a fortune!)  Today, of course, come the recriminations. As is their wont, journalists will focus on personalities and tactics as the reason Republicans lost.  Undoubtedly some will interpret McCain’s vote as revenge against President Trump, who famously called McCain a loser for being taken prisoner during the Vietnam War.  It is true that Trump’s effort to pressure Murkowski, via tweets and through his Interior Secretary Ryan Zinke, after she voted no on both the repeal, and repeal and replace legislation, was clumsily handled. It’s Neustadt 101  that these threats are more effective when issued behind closed doors. But the reality is that Murkowski has felt little debt to the Republican Party since losing her party primary in 2010. (She then beat her primary opponent by running as an independent in the general election.) For her part, Collins reportedly is eyeing a bid to become Maine’s governor in 2018, and she evidently felt that being on the wrong side of repealing Obamacare in her blue state would not help the cause. In short, it’s not clear what Trump could have done to win any of these three over.  That won’t stop pundits from spinning this as a reflection of his inability to bargain, of course.

But the reality is that this bill died for a more fundamental reason.  Beyond a basic agreement that Obamacare needs to be fixed, Republicans were a deeply divided party.  Small government Republicans like Rand Paul sought a total repeal of Obamacare, and a return to a purely-market driven system of health care – a vision shared by the House Freedom caucus.  Moderates like Collins and Murkowski wanted to retain some features of Obamacare, such as the Medicaid expansion. No matter how much legislative wizardry McConnell conducted, he was never able to demonstrate a way to bridge that divide.  Moving to conference merely postponed the inevitable day of reckoning.  In this respect, McCain may have done the party a favor by pulling the plug on a bill that was likely destined to fail anyway.  This allows Republicans to move on tax reform, an issue that in theory is more amenable to the type of horse trading that might unite the various Republican factions. We shall see.

Make no mistake about it.  This was a bitter blow to McConnell, and to the Republican Party.  After this morning’s vote a visibly dejected McConnell invited the Democrats to come forth with their own ideas for fixing Obamacare, but he did not sound very optimistic, and with good reason, that this route would be any more productive. In the end, however, the effort to repeal Obamacare did not fail because of McConnell’s lack of legislative legerdemain, or unwillingness to work with Democrats, or Trump’s clumsy bargaining tactics, although pundits will certainly cite all three factors. It failed because, in the words of the great political scientist Gertrude Stein, “there was no there, there.”  And all the deliberation in the world didn’t seem to change that basic fact.

Beware The Teflon Don

Yesterday I was interviewed by the WCAX reporter Darren Perron for his weekend show You Can Quote Me, an experience I always enjoy because of Perron’s sharp questions. The interview topic this time around, not surprisingly, was the recent “bombshell” revelation that Donald Trump, Jr. agreed to meet with what he thought was a representative of the Russian government who claimed to have information that could undermine Hillary Clinton’s presidential campaign. Perron wanted to know if, finally, this was the event that would serve as the proverbial “smoking gun” precipitating Trump’s political downfall. My paraphrased answer was, “Probably not.”  In fact, as I explained to Perron, I suspect the latest revelations won’t have much impact on Trump’s public support at all, at least not without additional incriminating detail.

As evidence, I pointed to the failure of any number of previous incidents, ranging from the Comey firing to Trump’s infamous Mika Brzezinski bleeding facelift tweet, to appreciably affect Trump’s popularity, despite being touted at the time as potential tipping points in terms of Trump’s support. Indeed, one of the remarkable and underappreciated facets of Trump’s presidency so far is that despite a historically unprecedented barrage of negative news coverage, his polling numbers have barely budged for more than two months. As Thomas Patterson documents in his study of news coverage by major media markets during Trump’s first 100 days, the tone of Trump’s coverage has been almost uniformly negative; in his words:  “Trump has received unsparing coverage for most weeks of his presidency, without a single major topic where Trump’s coverage, on balance, was more positive than negative, setting a new standard for unfavorable press coverage of a president.”  Indeed, as this accompanying chart from the Report indicates, Trump’s negative coverage is unprecedented compared to that received by his immediate predecessors.

There’s no evidence of which I know suggesting coverage has gotten any more favorable since the study was concluded. Mind you I make no judgement here on whether the predominantly negative tone of Trump’s coverage is warranted. But deserved or not, it seems not to be having much of an impact on Trump’s popular approval, at least not since late March, when opinions toward Trump seem to have settled in after a very brief and not very favorable honeymoon. According to the Huffpost aggregate poll, on March 27 Trump dipped to his lowest approval rating to that point, with only 40.7% saying they approved of the job he was doing.  Today, two and a half months later, Trump’s approval number stands at – drum roll please! – exactly 40.7%.  In the interim between March 27 and today it fell as low as 39.6% and rose no higher than 43.7% in aggregate polling.  In short despite the steady stream of media accounts breathlessly “Trumpeting” variations on the theme of  “White House in crisis”, “Embattled Presidency”, etc., Trump’s public standing, at least measured by polls, seems remarkably impervious to the overheated media coverage.

So why would the Trump, Jr. story be any different?  One answer is that it reveals, for the first time, concrete evidence that a member of Trump’s campaign team actively solicited information from the Russian government intended to undermine the Clinton campaign.  Despite Trump Jr.’s insistence that this was standard opposition research, most campaign veterans will tell you that opposition research doesn’t typically involve secret meetings with foreign governments. Nor is it normally conducted by the candidate’s offspring – far better to keep this type of activity as far from the candidate as possible.  Indeed, after prodding by Senator Lindsay Graham, Christopher Wray, Trump’s nominee to head the FBI, told the members of the Judiciary Committee that, “[A]ny threat or effort to interfere with our elections from any nation state or any nonstate actor is the kind of thing the FBI would want to know.”  That statement from Trump’s own nominee seemed to undercut the President’s defense that this meeting was par for the course when it comes to campaigns.

So this story seems to be different in kind from the previous stories alleging some type of collusion between Trump and the Russians.  At least superficially, it seems to provide the long-sought after smoking gun that proves collusion. Or does it?  As I told Perron, despite the effort of the Times to make the case that it was not a coincidence that public statements by Trump, Sr. on the campaign trail regarding Clinton’s emails followed closely on the heels of his son’s meeting with the Russian lawyer, it is still not clear that anything of value was transmitted to Trump, Jr., or that the meeting had any impact on the campaign at all.  So once again we are left with rampant speculation, but no concrete evidence regarding actual collaboration between Trump and the Russians during the 2016 election.  Yes, Trump, Jr., might have violated campaign norms, but does the meeting conclusively show collaboration between the Russians and the Trump campaign that influenced the election? And how, if at all, does this meeting link to the President?  There’s still a lot we don’t know.

If I am right that, in the absence of additional information documenting actual collusion, the latest “bombshell” will likely be met with a collective political shrug by Trump supporters, the question is why?  Why are Trump supporters seemingly unconcerned with what my Twitter feed and email inbox assure me are actions that are almost certainly going to lead to the destruction of the nation, or of Trump’s presidency, or both?

One explanation, often touted by Trump’s critics, is that his supporters are a bunch of no-nothing dupes who are blind to any evidence contradicting their racist, xenophobic, narrow-minded world view.  To a certain degree, hyperbole aside, we are all subject to confirmation bias, although it seems particularly pronounced among strong partisans. So this is probably part of the explanation.  Nonetheless, as I’ve discussed in other posts, in talking extensively with Trump supporters during the campaign I found them quite knowledgeable about current events and quite willing to criticize Trump when they thought the criticism warranted.

Another explanation, offered by the New York Times, is that conservatives are not alarmed by Trump colluding with the Russians because they actually admire Vladimir Putin, the Russian allegedly behind the effort to throw the 2016 election to Trump. As the Times puts it: “The veneration of Mr. Putin helps explain why revelations about Russia’s involvement in the election — including recent reports that members of Mr. Trump’s inner circle set up a meeting at which they expected a representative of the Russian government to give them incriminating information about Hillary Clinton — and Mr. Trump’s reluctance to acknowledge it, have barely penetrated the consciousness of the president’s conservative base.”

Again, that may be part of the explanation. However, I suspect there’s another, more important reason to explain why  stories alleging collusion aren’t having the expected impact – one that media outlets such as the Times may be reluctant to acknowledge: most Trump supporters don’t think the allegations of collusion have been proven.  And they don’t trust the media to report this story accurately.  As evidence, note that a recent Pew survey shows a whopping 85% of Republicans believe the national news media has a negative effect on the country.  (Democrats don’t view the press very positively either, for what it is worth.)

I suspect that mistrust is fueled in part by a suspicion among Trump supporters that, given the overwhelmingly negative tone of the coverage documented by Patterson, the major news outlets must have a hidden agenda – one designed to portray the Trump administration in the most negative light possible. Editorials such as the one issued by the Times that claimed a link between Sarah Palin’s PAC ads and the shooting of Representative Gabby Gifford (a claim since retracted), only fuel this suspicion.  So, in the absence of conclusive evidence showing collusion, their default position is to mistrust the media coverage.

Again, it bears repeating that it may be the case that the negative coverage of Trump to date simply reflects the fact that Trump’s presidency has been unusually controversial and even ineffective, at least compared to his predecessors, and so the overwhelmingly negative tone is perfectly appropriate.  My sense from talking to Trump supporters, however, is that they think this coverage is motivated instead by the media’s ideological agenda, rather than any dispassionate coverage of events. Thus, absent clear evidence that Trump colluded with the Russians, they remain skeptical that there’s as much to the story as the pervasive media coverage would have one believe.  Moreover, most of them would prefer that the media focus on more important issues that concern them, such as jobs, health care, tax reform, and the economy.  Instead they get a steady diet of stories based on unnamed sources alleging potential conspiracies between Trump and the Russians.  It’s not surprising, then, that these stories, so far at least, haven’t seemed to gain much traction among Trump supporters.  I suspect the latest twist in this ongoing saga will be no different – Trump supporters will view the allegations with their customary skepticism.  But time (and additional evidence) will tell…

In the meantime, perhaps we should not be surprised by the stability in Trump’s approval ratings. We saw a similar dynamic during Obama’s presidency. After the end of his post-election honeymoon, one that was much more favorable and long-lived than Trump’s anemic first few months, Obama’s approval got stuck in a very narrow band between about 44% approval and 52% disapproval, (with a brief positive second honeymoon after his 2012 reelection) for most of his presidency, until the 2016 presidential campaigned elevated him to “elder statesmen” status and his approval ticked up to finish at a robust 56.1% – a level undoubtedly driven by how well he stacked up in public perception compared to the two presidential candidates!

This is reminder that in this era of ideologically distinct and well-sorted parties, presidential approval ratings seems to be governed primarily by partisan dispositions, and barring an unusual event of national significance, once opinions have been baked in we aren’t going to see much fluctuation. Hence, for all the talk about how Trump’s presidency isn’t normal, when it comes to popularity, it seems very normal indeed.  And we shouldn’t be surprised.

Just call him the Teflon Don.  And if Don, Jr. somehow gets run over by the media, beware the barrel of acid.

 

To My Favorite Student, On Commencement Day

Another year has passed – this one more eventful than most.  Middlebury is about to hold its commencement ceremony, and as I have done ever since I came to live here in the Green Mountains, I will celebrate by sitting down by the fire, pouring a single malt, and raising a toast to you, My Favorite Student.

Who, you ask, is My Favorite Student? You know who you are.

Four years ago you dragged yourself across campus in the dark to make that first 8 am class in Twilight Hall, only to doze off six minutes into my opening lecture on why you should study American politics.  And yet you kept coming, week after week, likely inspired by my promise that “90% of success in life is just showing up.”  By the semester’s end, you realized that it truly was “great to study American politics in America” and you signed on to become a political science major (or at least learned to regret not becoming one).

Four years later you have reaped the many benefits from this decision.  Perhaps none is more consequential than getting added to the distribution list to this Presidential Power blog.  Your participation during the Live Blogging (Fill in the Election) results made listening to Wolf Blitzer so much more tolerable.

You heard my impassioned plea regarding the consequences of a legal career (the rhinoplasty to repair damage from your cocaine habit, the estranged children, the massive debt, the adultery with the pool boy, the long hours writing briefs defending BP [“It was just a little spill! In Louisiana, for god’s sake!”] and, of course, the terminal cancer) and still asked me for a letter of recommendation to law school;

You listened, amazed, at my lecture on the American Revolution, during which I quote from memory and with perfect inflection Captain Kirk’s famous speech about the Constitution – “We, the PEOPLE!… Down the centuries you have slurred the meaning of the words!” – and then asked your classmate: “Who’s Captain Kirk?”;

You now understand that political science is the “queen” of the social sciences, and why after four years this major has better prepared you to improve the world than if you had chosen any other discipline (but especially economics) – unless you blow it and go to law school;

You know now that just because a pundit says it is so, you still need to ask for evidence;

You didn’t make me explain “Teabagging” during my lecture on the Tea Party movement;

You gave me a gift of a bottle of scotch after the final class lecture that wasn’t Old Smugglers and didn’t come in a plastic bottle;

You figured out that my political views and partisan affiliation are exactly the same as yours;

You entered my blog contests for a chance to win an “It’s the Fundamentals, Stupid!” t-shirt, and then sent me a picture of you wearing your prize;

You stifled a gasp when entering my office, and managed not to fixate on the coffee stains and food remnants;

You learned, from “my son”, how to really do “the wave”;

You laughed at all my jokes, even the second time through (“Did you hear about the two hunters from Ripton who drove to Yellowstone to shoot grizzly?  The sign said ‘Yellowstone – Bear Left’, so they went home”);

You understood that when I hectored you in class, it was to make a broader teaching point, and not (necessarily) to humiliate you, although that was an ancillary benefit;

You remembered not to bring your Strawberry, U-Pad or other hand-held electronic device to exams;

You took on responsibility for sending the seemingly endless stream of emails the night before exams, asking all the questions that the other students wanted to ask;

You know that when we next see each other, I will not recall your name, but I will remember everything you ever said to, or wrote for, me during your entire four years at Middlebury.  (Which means at our next meeting you must greet me by first telling me who you are);

You brought me free beer during Election Night at the Grille, so that by evening’s end I was spouting utter nonsense even though all my electoral projections were dead on (well, except for predicting the winner);

You understand now what really happened when they tried to “Free Willy”;

You know as well how to survive a nuclear holocaust;

You stayed home until you were sure you could not infect me;

You became part of my twitterverse by joining the other Twits who now receive my infrequent  twitterings.

And, finally, you taught me more than you realize during your four years here.  Students often don’t appreciate that my interactions with them provides the impetus and the spark for keeping up with developments not just in my area of expertise but in society more generally. How else would I learn about The Cable, or FaceSpace, or the myriad other technological innovations?  Always remember that the questions you ask often inspire lectures or blogs or tweets!  In short, education at Middlebury is an interactive process – a two-way street – from which I benefit as much, or more, than do you. That is why I stay in this job despite the fact that, as I have reminded you countless times, Middlebury pays me next-to-nothing.

At times that learning process was contentious, particularly during this last year.  We didn’t always agree, but we learned to listen to each other despite those disagreements, and we were better for having done so.  And trust me – my views have changed because of you.  I suspect yours have as well.  That is perhaps the greatest lesson to take away from your four years here.  I hope you continue to listen, particularly to those with whom you may not agree.

So, assuming you don’t get heat stroke, let me end by sending you – My Favorite Student – best wishes in all your future endeavors.  Do stay in touch, and remember to thank your parents for getting you vaccinated; for rousing you out of bed for all those 5 am trips to the skating rink and summers at soccer camp; for the endless piano lessons; for reminding you to finish those application essays; for instilling a strong sense of values based on discipline, hard work, and rooting for Boston sports teams; and for forking over the $83,000 a year (none of which went to me) to attend Middlebury College.  They did all this because they love you and they want to be sure you don’t have to move back home again.

And parents, as you move your kids out of the dorms for the final time (and wonder why they are still packing) you should realize that although you won’t ever see that money again, and that your kids are in fact going to move back home for a bit, it was well worth the investment. Contrary to what you probably believe deep in your soul, your child did not squander your retirement money on endless nights of booze and partying. They actually learned to think and to communicate and to treat anything they read in the New York Times with skepticism. Nor did s/he waste four years by majoring in political science.  Read the papers.  Listen to the news.  More than any other discipline, it is politics that most determines whether tomorrow will be an improvement over today.  Your child has a head start in fulfilling that promise.

So, to paraphrase the late, great Richard Neustadt, “Trust the kids.”  After all, you were one too and look how your life turned out!  (Ok, maybe a bad example….)

And finally, if you don’t want to take the elevator down while your spouse holds the bag, remember to always, always, know your limits.

Good luck, stay in touch, and may your scotch bottle never run dry…

With fond memories,

Matt (which you may call me only after you are handed your diploma!)

P.S. To My Favorite Student: If you would like to continue to get direct email notifications of new presidential power blog postings, please remember to provide me with an updated email address before your Middlebury email expires. And the same goes for you parents out there who also wish to get blog notifications.  Unlike the Middlebury alumni office, I’ll never ask for money.  (But I won’t turn down an endowed chair!)

And now, back to the bluebooks (well, back to a book…..)