“The 2016 presidential contest was noteworthy for the first simultaneous occurrence in presidential election history of four rarely occurring electoral college eventualities. These included (1) the election of a President and Vice President who received fewer popular votes than their major opponents; (2) the actions of seven ‘faithless electors,’ who voted for candidates other than those to whom they were pledged; (3) the split allocation of electoral votes in Maine, which uses the district system to allocate electors; and (4) objections to electoral votes at the joint session of Congress to count the votes.” These events are examined in detail in The Electoral College: How It Works in Contemporary Presidential Elections (May 15, 2017 RL32611). Reforming the electoral college is the subject of another recent CRS report, Electoral College Reform: Contemporary Issues for Congress (Oct. 6, 2017 R43824). From the report:
Changing the electoral college system presents several options, sometimes characterized as: “end it,” “mend it,” or “leave it alone.” Proposals to end the electoral college almost always recommend direct popular election, under which the candidates winning the most popular votes nationwide would be elected. In support of direct popular election, its advocates refer to the elections of 2000 and 2016, so-called electoral college “misfires,” in which candidates were elected with an electoral college majority, but fewer popular votes than their principal opponents.
Almost all reform proposals—“mend it”—would keep electoral votes, but eliminate electors, thus ending the faithless elector phenomenon. They would then award the electoral votes directly by one of several methods: the general ticket system on a nationwide basis; the district system that awards electoral votes on a congressional district- and statewide-vote basis; or the proportional system that awards state electoral votes in proportion to the percentage of popular votes gained by each candidate. Despite more than 30 years of legislative activity from the 1940s through the late 1970s, proposed constitutional amendments did not win the approval of two-thirds of Members of both houses of Congress required by the Constitution for referral to the states.
States can reform the electorial college without congressional intervention or amending the Constitution. Under the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…” several states have entered into the National Popular Vote Compact to change how the electorial college operates for their states. See LLB’s Is the National Popular Vote Compact a better way to elect the next president? for details. — Joe
A snip from European Union Efforts to Counter Disinformation (Dec. 1, 2016 IN10614):
The European Union (EU) is increasingly concerned about the use of propaganda by both state and non-state actors and has sought to devise new strategies to combat disinformation. On November 23, the European Parliament (EP) adopted a resolution entitled “EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties.” In passing this non-binding resolution (by a vote of 304 to 179, with 208 abstentions), the EP added its support to European Union efforts to counter what Brussels believes are propaganda and disinformation campaigns against the EU and its member states by Russia and non-state actors such as the Islamic State terrorist organization.
In adopting the resolution, Members of the European Parliament (MEPs) expressed the view that propaganda and disinformation campaigns seek to distort the truth, incite fear, provoke doubt, discredit the EU institutions, divide the EU and its North American partners, and paralyze decision-making.
Check out the text of the EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties. — Joe
Cambridge Analytica, a data mining firm known for being a leader in behavioral microtargeting for election processes (and for bragging about its contribution to the successful Trump presidential campaign), is being investigated by the House Select Committee of Intelligence. See April Glaser, Congress Is Investigating Trump Campaign’s Voter Targeting Firm as Part of the Russia Probe, Slate Oct. 11, 2017. Jared Kushner, who ran the Trump campaign’s data operations, eventually may be implicated. See Jared Kushner In His Own Words On The Trump Data Operation The FBI Is Reportedly Probing, Forbes, May 26, 2017 and Did Russians Target Democratic Voters, With Kushner’s Help? Newsweek, May 23, 2017.
Before joining the Trump campaign, Steve Bannon was on the board of Cambridge Analytica. The Company’s primary financier is hedge fund billionaire and Breitbart investor Robert Mercer. Here’s a presentation at the 2016 Concordia Summit by Alexander Nix, CEO, Cambridge Analytica. Nix discusses the power of big data in global elections and Cambridge Analytica’s revolutionary approach to audience targeting, data modeling, and psychographic profiling for election processes around the world.
The Rise of the Weaponized AI Propaganda Machine discusses how this new automated propaganda machine is driving global politics. This is where big data meets computational psychology, where automated engagement scripts prey on human emotions in a propaganda network that accelerates ideas in minutes with political bots policing public debate. Highly recommended. See also Does Trump’s ‘Weaponized AI Propaganda Machine’ Hold Water? Forbes, March 5, 2017. — Joe
End note: In a separate probe, the UK’s Information Commissioner is investigating Cambridge Analytica for its successful Leave.eu campaign in the UK.
From the executive summary of Faking News: Fraudulent News and the Fight for Truth:
Faking News: Fraudulent News and the Fight for Truth examines the rise of fraudulent news, defined here as demonstrably false information that is being presented as a factual news report with the intention to deceive the public, and the related erosion of public faith in traditional journalism. The report identifies proposed solutions at the intersection of technology, journalism, and civil society to empower news consumers with better skills and tools to help them process the torrents of information they see online.
Faking News looks at how the spread of fraudulent news has been facilitated by Facebook, Google, and Twitter, and the ways each company is responding to the problem. The report also discusses how traditional journalism has in part contributed to the breakdown of public trust in the media—through partisan reporting, the blurring of fact and opinion, a lack of transparency around policies and procedures, and even honest mistakes, among other reasons—and what newsrooms are doing to rebuild that trust and improve the accuracy and transparency of their reporting processes. Civil-society-led initiatives, including professional fact-checkers and news literacy education programs round out PEN America’s examination of proposed solutions to the fraudulent news crisis.
H/T to beSpacific. — Joe
Here’s the abstract for Julie Novkov’s How Do We Solve a Problem Like the Donald? (Sept. 29, 2017):
Political observers have debated whether and how to remove Donald J. Trump from the office of the presidency. This article explains the difficulties associated with both the Twenty-Fifth Amendment’s incapacity route and impeachment. These difficulties illuminate a larger underlying problem with American democracy that the Trump presidency both crystallizes and reinforces: the emergence of an energized core of political participants who unite around racialized identity and reject some core principles of democracy.
Except from the blurb for Daniel Levitin’s Weaponized Lies: How to Think Critically in the Post-Truth Era (Dutton, 2017):
Investigating numerical misinformation, Daniel Levitin shows how mishandled statistics and graphs can give a grossly distorted perspective and lead us to terrible decisions. Wordy arguments on the other hand can easily be persuasive as they drift away from the facts in an appealing yet misguided way. The steps we can take to better evaluate news, advertisements, and reports are clearly detailed. Ultimately, Levitin turns to what underlies our ability to determine if something is true or false: the scientific method. He grapples with the limits of what we can and cannot know. Case studies are offered to demonstrate the applications of logical thinking to quite varied settings, spanning courtroom testimony, medical decision making, magic, modern physics, and conspiracy theories.
This urgently needed book enables us to avoid the extremes of passive gullibility and cynical rejection. As Levitin attests: Truth matters. A post-truth era is an era of willful irrationality, reversing all the great advances humankind has made. Euphemisms like “fringe theories,” “extreme views,” “alt truth,” and even “fake news” can literally be dangerous. Let’s call lies what they are and catch those making them in the act.
Here’s the abstract for Daniel Farber’s Presidential Administration Under Trump:
In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration.
Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one presidency. But that range has turned out to be broader than many scholars had assumed. The Trump Presidency has highlighted risks to presidential administration that were less evident previously. As a result, we need to recalibrate our expectations about presidential behavior and correspondingly our understanding of the functioning of the executive branch. Thus, we may gain a newfound appreciation for some of the institutions and doctrines such as State Farm that may blunt presidential power and strengthen the role of agencies and their professional staffs.
Here’s the abstract for Lawrence Trautman’s Grab ‘Em By The Emoluments: The Crumbling Ethical Foundation of Donald Trump’s Presidency (Aug. 27, 2017):
Does Donald Trump believe that over 200 years of constitutional law doesn’t apply to him? This paper explores two important areas of U.S. Constitutional law: the constitutional prohibition against acceptance of emoluments (anything of value); and the constitutional provision for presidential impeachment and is written before findings are available from any special investigations or results from the many Congressional inquiries about matters surrounding the Russian tampering with the American 2016 presidential election. Therefore, this article is an inquiry into other matters that raise many serious questions about the ethical fitness of Donald Trump to be President. Among grounds for Trump’s impeachment are his numerous ongoing Emoluments Clause violations. At this time it seems unlikely that President Trump will face impeachment. Given that both the U.S. House of Representatives and Senate are in control of the Republican Party, President Trump should be immune from impeachment proceedings unless the Republican Party leadership determines that it is in their best interest to allow for impeachment and removal, not a zero probability. Will President Trump’s lifelong propensity for lying ultimately lead to his eventual demise?
On October 10th, the Brookings Institution released Presidential Obstruction of Justice: The Case of Donald J. Trump (Oct. 10, 2017). From the press release:
In this paper, we break down and analyze the question of whether President Trump may have obstructed justice and explain the criminal and congressional actions that could follow from an obstruction investigation. Addressing the possibility of criminal behavior by President Trump and the complicated issues it raises is not a task that we take lightly. Dissecting allegations of criminality leveled against an individual who has been duly elected president and who has sworn to preserve, protect, and defend our Constitution is an inherently solemn task. But it is our hope that by presenting a rigorous legal analysis of the potential case against the president, we will help the American people and their representatives understand the contours of the issues, regardless of whether it is eventually litigated in a court of law, the halls of Congress, or the court of public opinion.
Recommended. — Joe
Here’s the text of the recently released immigration principles proposed by the Trump Administration as the basis for a bipartisan DACA agreement. — Joe
Here’s the abstract for Arjun Ponnambalm’s (Harvard) The Power of Perception: Reconciling Competing Hypotheses About the Influence of NRA Money in Politics:
The failure of Congress to enact meaningful gun control legislation despite overwhelming public support in the wake of the 2012 shootings in Newton, CT provides a unique opportunity to examine the influence of money in politics. The suspicion of improper influence arises whenever there is an apparent discrepancy between public opinion and the actions of elected representatives. This paper will explore two competing hypotheses regarding the degree of influence in Congress the National Rifle Association (NRA) has acquired through its political contributions, independent expenditures, and lobbying efforts. Using Lawrence Lessig’s framework of “dependency corruption,” this paper will argue that the influence of NRA money in politics is not as straightforward as it may appear, but that ultimately, the actual nature of the dependency between Congress and the NRA is less important than the fact that both public citizens and elected officials perceive that there is a dependency. This perception is sufficient to undermine public trust in Congress and distort the formulation of public policy.
From the summary of Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress (Oct. 4, 2017 R44321):
Diversity, inclusion, and equal opportunity are three terms that are often used interchangeably; however, there are some differences in how they are interpreted and applied between the Department of Defense (DOD) and civilian organizations. DOD’s definitions of diversity and equal opportunity have changed over time, as have its policies toward inclusion of various demographic groups. These changes have often paralleled social and legal change in the civilian sector. The gradual integration of previously excluded groups into the military has been ongoing since the 19th century. In the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity in the Armed Forces. Since 2009, DOD policy changes and congressional actions have allowed individuals who are gay to serve openly with recognition for their same-sex spouses as dependents for the purpose of military benefits and opened all combat assignments to women. On June 30, 2016, DOD announced the end of restrictions on service for those transgender troops already openly serving. However, in August of 2017, President Donald J. Trump directed DOD to (1) continue to prohibit new transgender recruits, (2) review policies on existing transgender sevicemembers, and (3) restrict spending on surgical procedures related to gender transition.
Mother Jones Mass Shootings Map
Any consideration of new or existing gun laws that follows mass shootings is likely to generate requests for comprehensive data on the prevalence and deadliness of these incidents. In 2015, the Congressional Research Service produced Mass Murder with Firearms: Incidents and Victims, 1999-2013 (July 30, 2015 R44126). Additional sources, an admittedly eclectic sample, include the following:
For background, see also Grant Duwe, Mass Murder in the United States: A History (McFarland, 2007) This book examines 909 mass murders that took place in the United States between 1900 and 1999. By far the largest study on the topic at the time, it begins with a look at the patterns and prevalence of mass murders by presenting rates and by describing the characteristics of mass killers. Placing the phenomenon within the broader social, political, and economic context of the twentieth century, the work examines the factors that have influenced trends in the prevalence of mass murder. — Joe
The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.
The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.
But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.” Charlie Savage, In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination, NYT, Oct. 5, 2017
Yesterday the DOJ was instructed by AG Sessions to view transgender people as not protected by Title VII in court cases. Here’s the text of the memo. H/T beSpacific. — Joe
According to the declassified report, Assessing Russian Activities and Intentions in Recent US Elections: The Analytic Process and Cyber Incident Attribution, the CIA, FBI and NSA have “high confidence” that Russian President Vladimir Putin “ordered an influence campaign in 2016 aimed at the US presidential election” in order to “undermine public faith in the US democratic process, denigrate Clinton, and harm her electability and potential presidency.” The report also contends the Russian government “aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.” See Russia and the U.S. Presidential Election (Jan. 17, 2017 IN10635) for the Congressional Research Service’s backgrounder.
Russian infomation warfare activities is the topic of Information Warfare: Russian Activities (Sept. 2, 2016 IN10563). From the report:
Russian doctrine typically refers to a holistic concept of “information war,” which is used to accomplish two primary aims:
•To achieve political objectives without the use of military force.
•To shape a favorable international response to the deployment of its military forces, or military forces with which Moscow is allied.
Tactics used to accomplish these goals include damaging information systems and critical infrastructure; subverting political, economic, and social systems; instigating “massive psychological manipulation of the population to destabilize the society and state”; and coercing targets to make decisions counter to their interests. Recent events suggest that Russia may be employing a mix of propaganda, misinformation, and deliberately misleading or corrupted disinformation in order to do so. And while Russian organizations appear to be using cyberspace as a primary medium through which these goals are achieved, the government also appears to potentially be using the physical realm to conduct more traditional influence operations including denying the deployment of troops in conflict areas and the use of online “troll armies” to propagate pro-Russian rhetoric.
These activities are placed in the larger context of US policy towards Russia in Russia: Background and U.S. Policy (Aug. 21, 2017 R44775). — Joe
Following up on LLB’s SCOTUS tackles constitutionality of partisan gerrymandering, here’s a snip from the summary for Redistricting Law: Background and Recent Court Rulings (March 23, 2017 R44798):
In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.
From the summary of Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R 44969):
The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.
The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).
Today President Donald J. Trump shared how middle-income families will win when we cut their taxes, and make American businesses competitive again. The President outlined a framework with Congress that will create a simpler and fairer tax code that fuels job creation, higher wages, and economic growth, and will lead to the lowest marginal income tax rate for small and mid-size businesses in more than 80 years. — Treasury Secretary Steven T. Mnuchin, WTAS: Widespread Praise for President Trump’s Unified Framework for Tax Reform
Yesterday, the White House Press Secretary released the Administration’s Unified Framework for Fixing our Broken Tax Code [one-page summary]. The Unified Framework “serves as a template for the tax-writing committees that will develop legislation through a transparent and inclusive committee process. The committees will also develop additional reforms to improve the efficiency and effectiveness of tax laws and to effectuate the goals of the framework.” — Joe
From the summary of An Overview of Recent Tax Reform Proposals (Feb. 28, 2017 R44771):
Many agree that the U.S. tax system is in need of reform. Congress continues to explore ways to make the U.S. tax system simpler, fairer, and more efficient. In doing so, lawmakers confront challenges in identifying and enacting policies, including consideration of competing proposals and differing priorities. To assist Congress as it continues to debate the intricacies of tax reform, this report provides a review of legislative tax reform proposals introduced since the 113th Congress.
Although no comprehensive tax reforms have been introduced into legislation yet in the 115th Congress, two 2016 reform proposals appear to be at the forefront of current congressional debates—the House GOP’s “A Better Way” tax reform proposal, released in June 2016, and President Trump’s campaign reform proposal, released in September 2016. As with most recent tax reform proposals, both of these plans call for lower tax rates coupled with a broader tax base. In either case, numerous technical details would need to be addressed before either plan could be formulated into legislation.
The Trump Administration issues a new travel ban that revises Executive Order 13780 (March 6, 2017) which expired yesterday. Here’s the text. — Joe