Why We Should Not Wait Until The 2020 Election To Deal With Trump’s Misbehavior

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Democrats in the House of Representatives have decided they cannot ignore President Trump’s efforts to pressure Ukraine to produce dirt on Trump’s likely opponent in 2020. They have begun an impeachment inquiry, which may lead to the introduction and adoption of articles of impeachment in the House. Given the ample proof of Trump’s obstruction of justice in the Mueller report, resort to the impeachment remedy only now indicates how reluctant Democrats have been to take this step. There are huge political risks for the Democrats. Even now one can hear criticism of the move from those who ask why we just can’t wait until the 2020 election and let the voters decide whether Trump is guilty of a “high crime or misdemeanor?” But waiting until the 2020 election to deal with Trump’s conduct, up or down, would be a serious mistake. Here’s why.

Let’s first think about this idea in the abstract. Presidents are elected for four year terms. Much mischief can be done in that period. If a President commits an impeachable offense in the first six months of his tenure, the notion that the “trial” of this question should await the next election will enable him to remain in office for a lengthy period and commit offenses of the same or greater seriousness. And what of a President who commits an impeachable offense in the first six months of his second term?  The voters would get no chance to remove him by way of an election.

In the current situation, there are thirteen months until the 2020 election. If Congress does not immediately deal with the allegations, one way or the other, there will be no constitutional brake on Trump’s behavior. He will get the signal that Congress does not have the resolve to check his behavior, even though it breaks all norms. He will have clear sailing for more of his efforts to use foreign assistance to undermine his opponent in the critical run-up to the election.

The impeachment process requires the adoption of articles of impeachment in the House of Representatives, which is like an indictment. The impeachment question is then sent to the Senate. Article 1, Section 3 of the Constitution says “The Senate shall have the sole power to try all Impeachments.” What would deferring to the 2020 election be if not a decision to use another mechanism – the voters – to try the impeachment question?

But suppose we wait until the 2020 election and Trump is defeated. We would never know whether pressuring a foreign government to interfere in our elections is a “high crime or misdemeanor.” It would be impossible to know whether Trump’s election loss was because of the people’s judgment on the offense of for other reasons.  Likewise, if the President survived the election we would never know the people’s judgment solely on the offense.  It is certainly possible that other forces and factors could prevent voters from even considering the offense. Take, for example, what would happen if we suffer another terrorist attack between now and November 2020. The American people usually rally around the President as commander-in-chief in those circumstances.

The Founders recognized the danger of submitting the question of impeachment to the public. In The Federalist No. 65, Hamilton said that impeachment questions

will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Here Hamilton was arguing that the innocence or guilt of a President should be determined in Congress, not dictated by the latest poll or the next election.

Some Democrats believe that the surest way of removing Trump from office is letting him stand for re-election in 2020. This is because he can be removed from office by slightly more than a majority of voters, whereas he cannot be convicted in the Senate on less than a two-thirds vote. The Republican-controlled Senate does not seem likely to convict, at least on the evidence we now know. But those of us old to have lived through the Watergate hearings will remember that it was believed unlikely the House would even pass articles of impeachment. Instead, as the evidence was revealed in the House hearings, Republican support for the President began to erode little by little. Nixon resigned because he was told he would lose the House vote.

But here should be the showstopper for Democrats who believe that removing Trump in the election is a better option. Article I, Section 3, Clause 7 of the Constitution says that impeachment and then conviction in the Senate means removal from office and permanent disqualification from holding any other federal office. On the other hand, if the way we get rid of Trump is by defeating him in the 2020 election after he has served only one term, he can – and will – run again.

When Will We Decide We’ve Had Enough?

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Nearly every day, the news reveals another outrage on the part of President Trump that violates constitutional norms. The most recent is his apparent threat to withhold military aid from Ukraine unless that country produces damaging information on former Vice President Joe Biden. At present Biden is Trump’s most likely opponent in 2020. Trump’s arrogance, corruption and destructiveness are unprecedented. I viscerally feel that he is ruining my country. When will we decide that we’ve had enough?

Trump respects no boundaries. He believes he can do anything he pleases as President, at least until someone stops him. We have never had a President like this and we have no systems capable of dealing with him. Under the Constitution, Congress has oversight authority of the executive branch.  But, as we have seen, Trump refuses to cooperate with requests for information and even subpoenas. He directs his subordinates not to testify before Congressional committees. Congress seems dumbfounded and impotent.

The Constitution provides only one remedy for removing a President – impeachment. This will first require a finding in the House of Representatives that Trump is guilty of treason, bribery, or “high crimes or misdemeanors.” This type of “crime” is not a crime in the usual sense but rather an abuse of power by a person in high office. It is a serious offense against the state, against the way our balanced democracy is supposed to run. Can there be any doubt that Trump has crossed that boundary? His refusal to cooperate with Congress alone should be enough, but the list of other offenses is long.

What seems to be holding us up are blind tribalism on the part of Republicans and careful political calculation on the part of Democrats. The Republican “base” has the President they want. He sticks his thumb in the eye of the elites, protects gun ownership and places arch-conservatives on the Supreme Court. Maybe you can understand how these voters perceive the complaints about Trump as purely partisan. But there will be a special circle in hell reserved for Republican Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who remain silent or worse. It is said that these people fear the political consequences from the “base” if they oppose Trump.

The Democrats in Congress aren’t much better. While a number of Democratic Representatives have called for impeachment, many are reluctant. Some from conservative districts are frozen for the same reason that the Republicans are – fear for their political future. Others like Nancy Pelosi argue the larger risks of attempting to impeach Trump. Unless the American people are lined up in favor of impeachment, Democrats are likely to experience the same blow-back from voters the Republicans got when they impeached Bill Clinton. Trump’s re-election prospects might even be improved by an impeachment effort. But this calculation seems different from the Republicans only in degree, not in kind.

We have been awash in so many affronts to the normal order that we are numb. We have lost our sense of outrage. Or maybe because we have never seen anything like this President, we are confused and don’t know what to do. But the problem with inaction is that each affront to constitutional norms makes the next one easier. If someone had told us on the eve of Trump’s inauguration how bad things would be in September 2019 we would never have believed it.

All this circles back to what kind of country we want. The “we” I’m talking about is you and I, at the granular level. Are we just going to wring our hands over how bad Trump is, or are we willing to risk something to stop Trump from creating further damage? It’s a certainty that Congress isn’t going to do anything without the safety of public opinion behind them.

Each one of has to take responsibility for the preservation of our democracy. The situation cannot go on like this. Talk to your neighbor. Write a letter to the editor of a newspaper. Post on Facebook. Call or write your Representative in Congress, even the Trump sycophant Alex Mooney. It is not someone else’s job. It is our job.

Reforming Corporate Behavior

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We have heard for years that the sole purpose of a corporation is to make money for its shareholders, end of story. This notion gained ascendancy after a 1970 article published in the New York Times by economist Milton Friedman, who huffed that the idea that corporations have a broader responsibility to society is “pure and unadulterated socialism.”

Friedman’s article provided intellectual cover for the slash and burn corporate greed in the following two decades. But today Friedman’s article seems like an odd period piece and his ideas out of step. In fact, the Business Roundtable (BRT) recently repudiated Friedman’s view and announced henceforth that satisfying other corporate stakeholders, such as employees and customers, will be given equal importance to producing wealth for shareholders.

The Roundtable, formed in 1972, is a group of about 200 chief executive officers of America’s largest corporations. Chief executives are employees of the corporations they lead, although clearly the most important and influential of them. CEOs are hired by corporate boards of directors and these directors are elected by shareholders. So CEOs lack the power to declare unilaterally that the mission of their corporation will change. The recent statement of the BRT is not binding on anyone, but each CEO certainly sought the approval of his or her directors before signing on to it.

The BRT’s original leadership were bi-partisan business statesmen. But the BRT soon evolved into a forum for chief executives to attack labor unions and the taxation of business. These were the libertarian views of the infamous Koch brothers and their ilk, who spent millions of dollars promoting this “free market, shareholder primacy” concept using an army of captured think-tanks. And the BRT began functioning like a trade association for chief executives, lobbying for compensation tied to corporate share price.

Much blame for today’s lack of corporate social responsibility has been placed on using short term financial results and share price to determine executive compensation. Large, publicly-traded corporations must report quarterly to the Securities and Exchange Commission on their financial and business position. These reports often drive share price. Short-termism encourages a focus solely on the near term results of a particular activity or policy, instead of on the value that can be created by long-term investment in employees, customers and communities.

Writing in the Harvard Business Review, author Andrew Winston neatly sums up the problem this way.

The world faces enormous, thorny challenges that business is feeling: climate change, growing inequality (and awareness that these CEOs make hundreds of times more than their employees), water and resource scarcity, soil degradation and loss of biodiversity and more. These issues require systemic efforts, cooperation, and pricing of those “externalities” (like pollution and carbon emissions) that business has been able to push off on society. The current shareholder-obsessed system is not fit for this purpose.

It is probably most accurate to say that the BRT’s new policy statement is a recognition of the change that has already taken place in the business environment, rather than an exercise in leadership. As The Economist magazine put it, the CEOs “have either seen the light or caved in, depending on whom you ask.” As one example of the change around them, polling among millennials reveals that this important demographic does not want to work for, or patronize, businesses that do not share their more progressive viewpoint.

Of course there are skeptics and opponents of the new policy statement. Some ask how we could expect a corporation like ExxonMobil, which has spent decades questioning climate science and undermining global action, to act responsibly now merely because its CEO has signed the BRT statement. Not likely because the energy giant would have to rethink its entire business. Energy companies have billions of dollars worth of coal, oil and gas still underground. Corporate managers cannot by law intentionally erode the value of the investments of their shareholders, many of whom are retirees, widows and orphans.

Former Treasury Secretary Lawrence Summers notes that most of the Roundtable’s CEOs are sincere and want to do the right thing. “But in a world of fierce competition, good intentions are not enough.” He advocates a program of legislation and regulation to complement and implement the BRT statement. These would include raising the federal minimum wage and penalizing the transfer of jobs overseas.

Assuming that the CEOs have “seen the light,” it may be because important political figures are also calling for better controls on how corporations behave. Businesses have no “right” to operate as a corporation. Corporations are chartered by the states in which they are organized and must follow the legal rules of those states. Theoretically, nothing prevents the state of Delaware, where many large corporations are headquartered, from amending its law to require, say, a ceiling on the difference between a CEOs compensation and that of the average corporate employee in the state.

Massachusetts Senator Elizabeth Warren has a plan for that, as she does for most everything. Recall that the basis of the Citizens United case that opened the floodgates of corporate money into politics was that corporations are to be treated like people under the First Amendment. Warren’s plan turns the tables. If corporations are to have the rights of people, they should have the corresponding obligation to act like good citizens, not like sociopaths whose entire obligation is to make money.

Warren’s proposal is called the Accountable Capitalism Act. It would require any corporation with revenue over $1 billion to obtain a federal charter, which would obligate the corporation to consider the interests of all stakeholders in corporate decisions. Under the bill workers of the corporation would elect 40% of the directors, and corporate political activity would have to be authorized by 75% of the shareholders and 75% of the directors, many of whom would be workers.

Writing in the online journal Vox, Matthew Yglesias says that there is “no getting around the fact that Warren’s proposal would be bad – really bad – for rich people.” So you can expect them and their political allies to marshal every resource at their disposal to oppose it. Warren’s entire proposal might be difficult to enact even if Democrats sweep in 2020. But you can be sure that pressure on corporations to act in more socially responsible ways will be on the political agenda for years to come.