Wednesday, May 20, 2020

Part I

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There Isn’t Much of a Middle in Presidential Electoral Politics: Justin Amash Decides Not to Run for President in 2020

Will there be a major third party candidate in the 2020 presidential election? An interesting question. The far larger question is, why don’t third party candidates have much of a case, much of a chance in American politics? Well, let’s consider the fact that if you ask the average American, he or she has a pretty good idea of what the 2020 presidential election is going to look like. It’s going to mean the Republican incumbent President of the United States, Donald Trump against the former vice president of the United States as the Democratic nominee, Joe Biden. That’s basically all most Americans know. That’s also basically how most American voters vote. But of course there is no limitation on the ballot to third party candidates—third, fourth, fifth, six, you name it.

If they qualify for the ballot, state-by-state then they’re on the ballot. But there’s very little attention given to third party candidacies in the United States. That raises a question. Why? Well, as you look at the two party system in the United States, it actually goes all the way back to the nation’s founding. It’s often noted that our first president George Washington, who became the model of the American presidency is officially listed as an independent. He wasn’t identified officially with a political party. But that’s not all that it appears to be because during the time of his presidency, George Washington clearly sided with the Federalist side and arguments. That became the Federalist Party. When you’re looking at the American presidency, all throughout American history, the winner has been one of the two major party candidates. That’s a template that has followed all the way through American presidential history. Ever since the election of Abraham Lincoln, just before the Civil War, the pattern has been a Democrat or a Republican.

And in only one strange case in American history was the second placing candidate, not either a Democrat or a Republican. That would be the year 1912, and behind that is a story worth considering. Our constitutional order has not only a separation of powers, but an extremely strong executive. As the language of the Federalist papers puts it, the founders intended energy in the executive. Thus the election of the president of the United States is the election of the entire executive branch. In a de facto sense, you’re looking at the fact that an entire branch of our three branches of government is up for election, so to speak, given the appointed power of the president every four years. Both political parties have incredible, almost infinite motivation to try to win the presidency. Third party candidates in American history just haven’t done that well. That might explain in part why Representative Justin Amash of Michigan announced days ago that he will not, after all be running for the nomination of the Libertarian Party.

Amash had been considered by some likely to run for some third party nomination, the Libertarian Party, probably the most natural party. He might have had a chance to have some publicity and of course, to gain a few votes. But the reality is, as Justin Amash came to conclude, there really isn’t much of a future as a candidate for a third party candidate for president. There might be some kind of afterlife on cable news or something like that. But a third party candidate has never been elected president of the United States. Why go back to 1912? In 1912, President William Howard Taft was running for reelection against the Democratic nominee, Woodrow Wilson. You already know the end of the story. Woodrow Wilson won. William Howard Taft, by the way, as the defeated candidate would go on to become what he really wanted to be all his life, which was chief justice of the United States Supreme Court.

But Taft did not come in second, even though he was defeated by the Democrat and he was the Republican nominee, the incumbent president of the United States came in third. That raises a huge question, who then came in second? Coming in second was the predecessor to William Howard Taft as Republican president and that was former president Theodore Roosevelt. He had handpicked Taft as his successor, but then became very disenchanted with him and decided that he would enter the race in 1912. The Republican party was committed to maintain the incumbency and denied its most famous candidate Theodore Roosevelt the nomination. Roosevelt then entered as a third party candidate under the candidacy of what became known as the Progressive Party. It was known in slang and American lore as the Bull Moose party because of the caricature of Theodore Roosevelt as a bull moose. The interesting thing about the 1912 election is that as a third party candidate, former president Roosevelt came in second.

He actually had more votes in the election than the incumbent president of the United States and the Republican nominee, William Howard Taft. But Wilson beat them both, Wilson won in the electoral college and went on to serve two terms as president. Theodore Roosevelt thus becomes the most successful third party presidential candidate in American history, but he didn’t win election to another term. He lost to Wilson. Now why do third party candidates fare so poorly in American presidential history? Well, it has a lot to do with the political landscape. Americans really are divided rather naturally into two different political parties. You’re looking at a very long argument, an argument that goes all the way back to the founding era and still finds its way in one way or another into the current debates and the current divide between what is now known as the Democratic Party and what is now known as the Republican Party. These aren’t new arguments. They are very, very old.

Most Americans by the time they reach voting age have sorted themselves out according to those two parties and those two arguments. When you talk about swing states and swing voters just recognize there isn’t much of an electoral middle when it comes to presidential politics. There hasn’t been for a long time. Both parties go into a general election with at least 40% of the electoral base. Together that means 80%. That leaves only 20%, but that’s the most generous estimation of how much is really up for grabs. Increasingly, political scientists and those who observe elections believe that the swing vote may be down to 5 or 6% of the total voting population. That’s especially true if you look at cycles of elections rather than just individual elections. In order to gain attention and even to get on the ballots in 50 states, a third party candidate has to have some unusual charismatic personality, some unusual cause and a spark of perhaps just the right moment in history.

Something like that was associated with the phenomenon of Ross Perot a generation ago, and even before Perot, George Wallace. But George Wallace was also a sign of a populist insurgency to come. And George Wallace, the former governor of Alabama also becomes important in this consideration because it was George Wallace who, carrying the banner of the American Independent Party, was the last third party candidate to win even one state and that state’s electoral votes. In 1968, with former vice president, Richard Nixon, the Republican nominee and the then vice president of the United States, Hubert Humphrey, the Democratic nominee. George Wallace put himself right in the middle and he carried not just one state, he carried five states in the American South. It was a very ideological and a very regional campaign. But in the end, carrying five states in the South, George Wallace won only 46 electoral college votes. Richard Nixon won 306. That was 36 more than Nixon needed to win the presidency clearly.

But in mentioning the electoral college, that’s another reason why third party candidates really don’t have much of a chance in American electoral politics at the presidential level. The electoral college is key to winning the presidency and the electoral college includes 538 electors. That’s one for every member of the House, one for every member of the Senate, and for the Senate and house contingent that the District of Columbia would have, if it were a state. 435 representatives, 100 senators, 3 credited to the District of Columbia—that’s 538. It is considered that the number 270 is what is necessary to win the presidency. The magic number 270. The reality? No third party candidate has any realistic shot of getting anywhere close to 270 electoral votes. George Wallace understood that well in 1968, he had no hope of winning the presidency. He did have a hope of winning influence by forcing the election into the House of Representatives. That didn’t happen, and George Wallace is now a political footnote for more reasons than one in American history.

Justin Amash is a very interesting individual to watch in the midst of this. He went into Congress in 2011, elected by the third district there in the state of Michigan. He entered as a Republican and he stayed a Republican until very recently. He became the head of what was known as the Liberty Caucus in the House of Representatives. That is not entirely different than what you would see in the platform of the Libertarian Party in many respects. But what’s important to recognize is that he was a Republican. He was elected as a Republican, every time he was reelected, he was reelected as a Republican. And even as he switched his party affiliation just in April of this year, he also voted for the impeachment of president Donald Trump. He identifies now as a Libertarian, he’s listed on the roster as the first member of the Libertarian Party to serve in either the House of Representatives or the Senate.

But the important thing to recognize is that’s not how he got to Congress. That’s not even how he is sitting in Congress right now. He was elected as a Republican and, of course, he has no hope of being reelected as a Republican. So looking for a political future, he decided maybe that future would be found in a third party candidacy. But on the 16th of May, Justin Amash indicated he was not going to be running for the Libertarian Party nomination after all, because he had come to the conclusion that it was not possible to lead to an electoral win. He blamed this in part on the coronavirus pandemic, but the reality is it’s just the pattern of American presidential politics.

That takes us back to a basic Christian worldview issue. That is recognizing that in the electoral process of the United States, there is a very long political argument. That argument primarily comes down to two political parties and one way or another, unless there is some mega shift unforeseen in American politics that hasn’t happened since the founding of this nation, either Donald Trump or Joe Biden will be inaugurated in January of 2021 as president of the United States.

One issue of worldview analysis in conclusion there is that it takes an incredibly powerful argument, evidently more powerful, an argument than Americans have ever seen to separate Americans from that two party system. Such an argument may one day appear, but at this point in American politics, it’s really hard to imagine what it might be.

Part II

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What Is a ‘Faithless Elector’? Supreme Court Hears Arguments about the Responsibility of Electoral College Voters

But before leaving the electoral college, there was also the development in recent days that the Supreme Court of the United States has heard oral arguments in a case asking a fundamental constitutional question, can the individuals elected as electors of the electoral college vote their own consciences when it comes to that vote or are they bound by the party affiliation that elected them to the electoral college?

That’s an interesting constitutional question. It comes down to the issue of the so-called ‘faithless electors.’ They are elected to the electoral college because of their pledge to vote for the party’s candidate in the electoral college vote. But the United States Constitution and the debate over the ratification of the Constitution indicated that there could be circumstances in which it might be envisioned that an elector exercising his or her own judgment might vote for someone other than the nominee of the party that was identified with them when they were elected. We’ve noted with great concern, the efforts to try to subvert the electoral college. As I pointed out, in our constitutional system, the electoral college is extremely important and even necessary to affirming the role of the states in electing presidents of the United States. It’s not just a general election popular vote. The candidate who wins must win the electors of states, state by state and the magic number again, 270.

If the electoral college is not in place, then population centers on both coasts would have an inordinate political authority and stature even bigger than they have right now and much of the country would be simply ignored or neglected because all the winning candidate would have to do is pile up the popular votes, where there are population centers. Demographically, even in terms of worldview, there are distinctions between rural and more metropolitan and urban voters. That would mean a giant advance for the more liberal side of the political equation and a strategic defeat for the more conservative aspirations.

It was interesting during the oral arguments and, of course, we always have to say oral arguments aren’t always very revealing when it comes to how the court will eventually decide a case. It was really interesting that several of the justices indicated that there had to be limitations to who could or could not be chosen by an elector in the electoral college. In one of the most interesting turns in the history of the Supreme Court in recent years, Clarence Thomas, associate justice of the Supreme Court who has until recently rarely spoken up—he went a decade without speaking—he asked the question of one attorney as to whether or not an elector of the electoral college could vote for an imaginary candidate, such as Frodo Baggins, of course, a character in the Lord of the Rings by J.R.R. Tolkien. That tells us something, doesn’t it? It tells us about the reading habits of justice Clarence Thomas, and also tells us that in the most unexpected way, Frodo Baggins found himself cited before the Supreme Court of the United States. Devotees of J.R.R. Tolkien will simply have to count that as a milestone in the influence of the Lord of the Rings in Western culture.

Part III

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Supreme Court Unanimously Affirms the Ability of Victims of Terrorism to Sue Negligent Foreign Nations

And next, speaking of the Supreme Court this week, the Supreme Court on Monday unanimously ruled that American citizens can successfully sue foreign nations for terrorism when it can be demonstrated that the foreign nation was responsible in one way or another. This appears to be a significant modification of what has been known as the law of sovereign immunity, which in general terms holds that the citizens of one nation may not bring a lawsuit against another nation. You can understand why that would be a major principle of international law, because you basically could not have international travel and international discourse and international business if you could have the citizens of one country continually bringing another country and the court.

But the country in this case was Sudan. And the event was the 1998 bombing by truck bomb of United States embassies in Kenya and Tanzania. The attacks killed hundreds and wounded thousands, and some of those both amongst the dead and the wounded were American citizens. Relatives of those American citizens brought case against Sudan. They won, then they lost, and now they’ve won again because the Supreme Court of the United States reinstated about $4.3 billion in punitive damages that an Appeals Court had ruled they were not due.

As I said, the Supreme Court was unanimous. That always should have our attention. When you have unanimity at the Supreme Court, you know it is a major decision on which the justices are in absolute agreement. But in this case it was eight justices, not nine, because justice Brett Kavanaugh had recused himself from the case. What does that mean? It meant that he had withdrawn for an ethical reason. Well, what would that have been? Well, it was because when the case was heard before the DC Circuit Court of Appeals, Kavanaugh was on that court. He did the right thing, recusing himself. It wouldn’t work for a judge who had been on one court reviewing what amounts to the decision of his own former court when he is a justice of the Supreme Court. That’s why justice has have the mechanism of recusing themselves, but still eight of eight is a unanimous court in this case.

But there’s a really interesting worldview issue behind this. We can understand the importance of the nation state. We can understand why citizens of one nation are not given the authority in any routine sense to sue the government of another nation. That would be a never ending cycle. But the exception in this case by a United States Supreme Court unanimous, well, it tells us something. What it tells us is the legal logic of the court in this decision. The legal logic is this: American citizens should have the right to sue a foreign government, when that foreign government has acted in a way that can only be described as by negligence and premeditation to allow injury to Americans. That government can’t allow something like that as a conspiracy to be hatched on its soil and then later claim sovereign immunity against damages.

The federal district court judge—that would be judge John D. Bates of the federal district court in Washington—had found in 2011, that Sudan was liable for these damages and the American citizens did have standing to sue and receive what amounted to tens of billions, of dollars of damages, of which 4.3 billion were punitive damages. In making his decision, judge Bate said, “Bin Laden,” that means Osama bin Laden, “and Al-Qaeda receive the support and protection of the Sudanese intelligence and military from foreign intelligence services and rival militants. Sudan provided bin Laden and Al-Qaeda hundreds of Sudanese passports. The Sudanese intelligence service allowed Al-Qaeda to travel over the Sudan Kenya border without restriction.” In other words, Sudan is guilty and bears responsibility. Again, the major point made by the court is you can’t allow, facilitate, or encourage illegal activity that is injurious to Americans, and then claim sovereign immunity after the injury takes place.

That’s an important issue. And yet, like so many issues that come before the nation’s highest court, there will be other issues of clarification that will still be required. The beat goes on.

Part IV

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Data Privacy vs. National Security: F.B.I. Links Pensacola Attacker to Al Qaeda and Apple Is Right in the Middle of It

But then finally, another story that is connected to all of these also with worldview importance. This story is not getting the attention it deserves probably because of the COVID-19 pandemic. The New York Times headline is this: “FBI Finds Links Between Pensacola Gunman and Al-Qaeda.” This goes back to last year’s deadly shooting at a naval base in Pensacola in Florida. when a Saudi Air Force cadet training with the American military, that would be second lieutenant Mohammed Saeed Alshamrani, he opened fire on Americans killing three American sailors before he was himself killed by military police. Here’s the big issue.

The first shock is that it was a Saudi Air Force cadet in training as a guest in the United States on an American naval base who had opened fire on American military personnel killing the three. The shock had a lot to do with evidently even given the powers of American intelligence services, including naval intelligence, there had been someone who turned out to be an Islamic militant who had gained access, not only to a naval base, but was actually in training as a pilot on American soil, on an American Navy base with deadly results.

But the announcement this week was that the FBI had demonstrated links between the gunman and Al-Qaeda. There it comes up again, Al-Qaeda, the very group behind this September 11, 2001 attacks on the United States that killed thousands. It turns out that even though it has disappeared somewhat from the headlines, it’s back. It’s back in the form of a lone wolf gunman, who was actually a Saudi Air Force cadet right there in the heart of an American naval base.

But for some Americans, there’s another very interesting aspect of the story. It should be of interest to all Americans. This case also represented a face-off between the United States Department of Justice in the form of the Federal Bureau of Investigation or the FBI against Apple. Apple had refused to cooperate with federal authorities in breaking the encryption of the Saudi officer’s phone. Indeed, not just phone, but phones.

As the New York Times reported, “The case has served as the latest skirmish in a continuing fight between the Justice Department and Apple pitting personal privacy against public safety.” Christopher Ray, the director of the FBI, criticized Apple for refusing to help bypass the encryption on its phones. As the New York Times said, “Apple’s defiance allowed any possible co-conspirators to fabricate and compare stories, destroy evidence, and to disappear.” That according to the FBI director.

This leads to a host of interesting questions, but a lot of them have to do with that battle over what Apple claims is its corporate interest in personal privacy over against the reality that in this world, we have enemies and those enemies are using phones. The encryption on those phones can hamper law enforcement efforts and even efforts to try to prevent this kind of terrorist attack. All of this is going to be continually negotiated and adjudicated in coming months. It is very much a concern for European governments as well as the government of the United States of America.

The issues have to do with more than terrorism, including issues such as human trafficking. Governments want access to the data on phones in order to prosecute cases and prevent crimes. But the people who hold those phones often count on them being private and the companies making those phones have their own commercial interest in keeping their technology private as well.

Christians just have to remember that evil is very much alive in this world, evil in the form of Al-Qaeda as one illustration. It had disappeared from the headlines, but then all of a sudden it comes back in one week in two different headlines, in two big stories. Evil is out there, Al-Qaeda is still active, and as that last story reminds us, Al-Qaeda has phones.