Month: September 2020

The first debate between President Donald Trump and former vice president Joe Biden was, for the most part, an unwatchable disaster.

We should have more debates between these two men. A lot more.

In the rare moments on Tuesday night when Trump and Biden weren’t talking over each other or engaging in shouting matches with the debate’s moderator, Chris Wallace of Fox News, they struggled to move behind the most basic of talking points before quickly returning to the shouting, mocking, and general nonsense. Trump was, of course, the more disruptive of the two—but both candidates deserve blame for wasting 90 minutes of everyone’s time.

“A hot mess inside a dumpster fire inside a train wreck,” is how CNN’s Jake Tapper described it shortly after the event mercifully concluded. His colleague Wolf Blitzer actually opened CNN’s post-debate coverage by openly speculating about whether this might have been both the first and last debate between the two men—and he wasn’t the only one to express that sentiment:

CANCEL THE REMAINING PRESIDENTIAL DEBATES. It is impossible to have an orderly, productive exchange with Donald Trump. Stop pretending otherwise. #Debate2020

— Larry Sabato (@LarrySabato) September 30, 2020

.@morningmika makes a compelling case to cancel the rest of the debates here https://t.co/0GWDbYw9M3

— Sam Stein (@samstein) September 30, 2020

"Tuesday was the first presidential debate of the 2020 election, and if there is any sense or mercy left in this nation, it will be the last, too," writes @GrahamDavidA: https://t.co/iCdEpIfkhf

— The Atlantic (@TheAtlantic) September 30, 2020

Anyone who watched Tuesday’s debate with the knowledge that two more Trump vs. Biden contests are scheduled—for October 15 and October 22—can be forgiven for wishing that this cup might pass from us. I mean, can you really imagine sitting through three more hours of that.

But what America really needs is the exact opposite.

Yes, I’m saying there should be more debates. Maybe two or three per week between now and the election. Seriously. The debates shouldn’t be seen as horrifying divertissements from more sanitized campaign trail news, and they certainly shouldn’t be canceled because they show Trump and Biden in such a raw, unfiltered light. This is the choice we have, America, and we should not look away.

There should be more debates because the two major parties that vomited up these candidates into your living room deserve to be humiliated. Take away the pundits, surrogates, and teams of public relations professionals who help sell Trump and Biden as normal, competent adults capable of holding any position of power, and you’re left with what you saw on Tuesday night.

There should be more debates because Americans should have to stew in this porridge of hot garbage until they cry out for alternatives—alternatives that are kept off the stage by rigged qualification rules set by the Commission on Presidential Debates, which is itself a creation of the two major parties. (After watching Tuesday’s display, you can at least understand why Democrats and Republicans are so keen on excluding anyone who might be even moderately coherent.)

There should be more debates because Americans need to confront the fact that Trump and Biden didn’t merely have an “off night” on Tuesday. Their performances were every bit as calculated and cynical as they were unserious and exhausting. They were, believe it or not, trying their best.

Trump lacks coherent policy ideas or anything that could reasonably be called a second-term agenda. Midway through the debate, Wallace lobbed a softball that invited Trump to talk about what he would do to help the average American if given another four years in office, and Trump sputtered a bunch of nonsense about what he’d supposedly accomplished so far—as if voters owe him a second term based on his first.

Lacking any serious ideas of his own, it was clear from the start that Trump’s strategy in the debate was nothing more sophisticated than trying to bully Biden into saying something that could be replayed, context-free, on Fox News and the president’s own Twitter account.

Biden, whose best quality during this whole campaign has been that he’s not Trump, kept his cool but accomplished little else. Honestly, I don’t remember a word Biden said last night except for the time he told Trump “would you shut up, man.” Which, fair.

So much for trying to figure out which candidate you’d rather have a beer with. Last night’s debate posed a darker question: if you were locked in a bar with both candidates and a pistol with a single round, would you take the easy way out?

Guess what, America: There is no easy way out. Either Trump or Biden will be president for the next four years. We collectively stared into that abyss for 90 minutes on Tuesday night, and the only ones among us who weren’t driven mad by the experience were those who are already insane.

There should be more debates for roughly the same reason that we should abolish tax withholding. Though originally a well-intentioned idea pushed by none other than Milton Friedman, having taxes automatically withheld from paychecks means that most Americans don’t experience the reality of paying roughly one-third of what they earn to the federal government every year. If we could only force people to write massive checks to the IRS every year, the theory goes, more people would feel differently about proposals to increase the size and cost of government. Likewise, if only we had more presidential debates, perhaps we could awaken more of America to the ruinous consequences of having only two viable political parties in a country of 325 million people.

Every time Biden and Trump speak, they undermine the rotting system that put them in front of the cameras, so they should be invited to speak, literally ad nauseum, until we can’t take it anymore.

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Congress appears to be wimping out on the prospect of decriminalizing marijuana and removing it from the federal schedule of controlled substances, thanks to pressure from police and prohibition lobbyists (and a general lack of support from Democratic presidential nominee Joe Biden).

But the states are continuing to legalize on their own with the support of their voters, and more marijuana initiatives are on the ballot in November. South Dakota and Mississippi voters will be asked to permit the use of medical marijuana as a treatment for certain medical conditions. South Dakota voters will also be offered the chance to legalize recreational use, as will voters in Arizona, Montana, and New Jersey.

Mississippi. The Mississippi ballot initiative is a complicated mess that will require voters to tick multiple boxes. There are actually two competing bills to allow for medical marijuana, Proposition 65 and Alternative 65A. Voters will first be asked whether they want either measure to pass. Then regardless of whether they want either measure to pass, they’ll be asked to choose which measure they’d prefer. So technically, a voter can oppose medical marijuana legalization but then also decide which version they’d prefer if it passes anyway, and that vote will count.

Prop. 65 will allow the use of medical marijuana to treat more than 20 specific medical marijuana conditions and establishes possession limits and a sales tax rate for sales. Alternative 65A is the version put on the ballot by state lawmakers and would restrict medical marijuana use only to those with terminal illnesses.

Polling from earlier in the year showed a majority voting in favor of Prop. 65 by 52 percent. But this week Marijuana Moment reported that a sample ballot being circulated by the American Medical Association and the Mississippi State Medical Association (MSMA) is telling voters to vote no for both of them, but then to select the more restrictive 65A as their second option. This would seriously limit who would be allowed legal access to medical marijuana.

South Dakota. South Dakota voters get to decide whether to legalize medical marijuana and also to legalize recreational use. Measure 26 would establish medical marijuana as a legal treatment for anything certified as a “debilitating medical condition” by a physician. It would establish possession limits and would permit registered patients to grow marijuana at home.

South Dakota voters will also have the option to amend the state’s constitution to fully legalize recreational marijuana use. Constitutional Amendment A will allow recreational marijuana use for those over the age of 21 and possession and distribution of up to one ounce. The sale of marijuana would be taxed at 15 percent. Half of that revenue would be earmarked for public schools. The South Dakota amendment would allow residents who don’t live in a jurisdiction with a licensed retailer to grow their own.

Arizona. Arizona voters narrowly voted down marijuana legalization in 2016, but it’s back on the ballot again as Proposition 207. The proposition will legalize consumption by those over 21, allow people to grow up to six plants as long as they are in an enclosed area and not within public view, and would set a 16 percent sales tax rate.

Early polling had support for legalization widely ahead, but the latest numbers have voters split. Republican Gov. Doug Ducey opposes legalization, complaining that “Kids would become easy prey for an industry hungry to create a new generation of users.”

New Jersey. New Jersey’s vote is actually a referendum put on the ballot by the state’s legislature. This is the first time that state lawmakers actually voted to refer the matter to the voters, partly because the lawmakers themselves could not settle on a bill.

New Jersey’s referendum, Question 1, would update the state’s constitution to allow those over 21 to consume marijuana recreationally and would create a regulatory system to oversee a recreational marketplace. Current polls show marijuana legalization in New Jersey has strong support. The ad campaign there focuses on how much money the state spends arresting people for pot possession ($143 million annually).

Montana. Montana voters will have two marijuana ballot initiatives. The first, I-190, would allow legal consumption for adults over the age of 21. It will allow private cultivation of up to four plants, establish a retail regulatory regime, and set retail taxes at 20 percent.

There’s also a separate constitutional initiative, CI-118, that would amend the state’s constitution specifically to allow the state the authority to set a minimum legal age for the consumption of marijuana, just like it does for alcohol.

So even as Congress continues to stumble around and fail to respond to poll numbers showing that Americans support marijuana legalization, the states and voters are reforming their laws regardless.

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From the public university’s Diverse, Equity, and Inclusion Task Force (emphasis added):

Recommendation 9: Miami University should explore the adoption of a zero-tolerance anti-discrimination policy and strictly enforce its existing University policy on discrimination.

Miami University must be able to determine under what conditions employees can be terminated and students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments.

Note: This recommendation assumes the accused party was afforded proper due process and an appropriate finder of fact determined discrimination occurred.

Rationale: As a public institution of higher education, Miami University should demonstrate moral courage when defending its interest in having an efficient and disruptive-free work environment. Student dismissal or employee termination should not be shied away from because of fear of First Amendment violations. Case law dictates that a balancing test regarding private citizen’s 1st amendment right vs public institution interest in an efficient and disruptive-free work environment (Connick v. Myers, 461 U.S. 138, 1983; Dixon v. University of Toledo, 702 F.3d 269, 6th Cir. 2012; Locurto v. Giuliani, 447 F.3d 159, 2d Cir. 2006; Pickering v. Board of Education, 391 U.S. 563, 1968). The key legal factors (e.g., avoiding disruptions in regular operations, maintaining good working relationships among coworkers, avoiding erosion of working relationships dependent on confidence and loyalty, avoiding obstructions in employees’ abilities to perform their work) favor Miami’s case for an efficient and disruptive-free work environment.

Well, maybe the Diversity, Equity, and Inclusion folks have no “fear of First Amendment violations “and think “moral courage” consists of promoting “efficient and disruptive-free work environment” without regard to student and faculty speech rights; but the University ought to have some fear here:

[1.] Student First Amendment Rights: Any policy saying that “students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments” would violate the First Amendment.  The Diversity, Equity, and Inclusion Task Force may not “fear … First Amendment violations,” but the university, which will have to pay for those violations (and which presumably wants to comply with the law) should.  Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), expressly struck down a campus “discriminatory harassment policy” that banned allegedly bigoted speech (there, “verbal … behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by … (c) demeaning or slurring individuals through … written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual’s racial or ethnic affiliation”).

The same would be true of any policy calling for discipline for “racist, sex, homophobic, etc.” “comments.”  See also Matal v. Tam, 137 S. Ct. 1744 (2017) (reaffirming that, even within government-run programs, the government can’t impose viewpoint-based restrictions on supposedly bigoted expression); Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (reaffirming the protection of students’ right to “express any viewpoint they wish—including a discriminatory one,” and stressing “this Court’s tradition of ‘protect[ing] the freedom to express “the thought that we hate”‘”).

[2.] Faculty First Amendment Rights: The rights of public university professors, as public employees, are more complicated, because the government as employer usually has more power to restrict employee speech than the government as college educator has over students.  But courts have recognized that the government’s power to punish faculty for speech in their research, public commentary, and even their teaching is still sharply limited.

Thus, for instance, in Hardy v. Jefferson Community College (6th Cir. 2001), the court held that a professor had a right to discuss offensive words—such as “nigger” and “bitch”—in class, when that was “germane to the subject matter of his lecture.”  Likewise, in Levin v. Harleston (2d Cir. 1992), the court held that even “derogatory remarks about persons of certain racial or ethnic groups” (to quote Hardy‘s description of Levin) in letters to the editor and in journal articles were protected by the First Amendment.  And Burnham v. Ianni (8th Cir. 1997) (en banc), recognized the right of faculty members to convey their views on campus outside class, even when some found that speech to be offensive.

Some restrictions on faculty speech may not violate the First Amendment, for instance when the speech appears unconnected to public debates (as in another portion of Dambrot). And high-level university administrators may be less protected from being removed from their administrative positions (though, if they’re also faculty, they may still have a First Amendment right not to be removed from their faculty positions). That’s what Dixon v. University of Toledo (6th Cir. 2012), the Toledo case to which the Task Force seems to be referring in the Recommendation 9 Details, held:  An Associate Vice President for Human Resources could be removed for her speech, just as, say, a Governor’s cabinet member can be removed by the Governor for his speech or political activity.  (The Dixon court specifically cited the political appointee cases, such as Rose v. Stephens (6th Cir. 2002).)

[3.] Academic Freedom Guarantees: Besides the First Amendment, much of the protection for freedom of debate and inquiry at universities comes from Academic Freedom policies that the universities themselves adopt, and on which prospective students, faculty, donors, and legislative supporters rely. Miami of Ohio has such a policy—presumably the Diversity, Equity, and Inclusion Task Force would be seeking to add viewpoint-based exceptions to it in order to implement the Task Force’s goals. This is the current policy, which protects all ideas, whether or not people label them “racist, sexist, homophobic, etc.”:

The teacher is entitled to full freedom in research and in the publication of the results, subject to the performance of his or her other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

The teacher is entitled to freedom in the classroom in discussing his or her subject, but should be careful not to introduce into his or her teaching controversial matter that has no relation to the subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of appointment.

College or university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as a citizen, teachers should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As individuals of learning and as educational officers, they should remember that the public may judge the profession and the institution by their utterance. Hence, faculty members should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

The University also recognizes that the faculty member is an integral part of the institution. While observing the stated regulations of the University, the faculty member maintains the right to criticize and seek revision of University policy, both administrative and academic.

Thanks to College Fix (Alexander Pease) for the pointer, and see also this post from the Foundation for Individual Rights in Education (Will Creeley).

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By now, President Donald Trump’s position on face masks is clear. He wears one, except when he doesn’t. And he thinks masks are useful in reducing transmission of the COVID-19 virus, except maybe they aren’t.

Trump’s persistently muddled message about masks, which he delivered once again during last night’s presidential debate, may reflect his own dislike of wearing them or his attempt to seem responsible without alienating supporters who are leery of face coverings. But as was apparent during the debate, those tendencies are reinforced by the fact that, over the course of the pandemic, public health officials have switched from dismissing the value of general mask wearing to endorsing it as an essential precaution, sometimes in terms that are not justified by the scientific evidence.

“Are you questioning the efficacy of masks?” moderator Chris Wallace asked.

“No, I think masks are OK,” Trump replied. “I have a mask right here. I put a mask on when I think I need it. Tonight, as an example, everybody’s had a test and you’ve had social distancing and all of the things that you have to. But I wear masks when needed.”

That seems like a reasonable position. Masks may be appropriate indoors when you are in close proximity to strangers but more trouble than they are worth in other contexts—say, when you are outdoors at a distance from other people. Yet when Joe Biden, Trump’s Democratic opponent, asserted that “masks make a big difference,” Trump could not resist contradicting him.

“His own head of the CDC [Centers for Disease Control and Prevention] said…if everybody wore a mask and social distanced between now and January, we’d probably save up to 100,000 lives,” Biden said. “It matters.”

Alluding to the CDC’s initial dismissal of face masks worn by the general public as a helpful strategy, Trump replied, “They’ve also said the opposite…Dr. Fauci said the opposite…He said very strongly, ‘Masks are not good.’ Then he changed his mind. He said, ‘Masks are good.'”

Back in March, Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a member of the White House coronavirus task force, was indeed questioning the value of general mask wearing. “There’s no reason to be walking around with a mask,” he said during a March 8 interview with 60 Minutes. “When you’re in the middle of an outbreak, wearing a mask might make people feel a little bit better, and it might even block a droplet. But it’s not providing the perfect protection that people think that it is. And often, there are unintended consequences. People keep fiddling with the mask, and they keep touching their face…When you think ‘masks,’ you should think of health care providers needing them.”

Today Fauci’s position on masks, consistent with the CDC’s turnaround on the question in April, is quite different. “There should be universal wearing of masks,” he told ABC News in August. “If you look at the scientific data, the masks clearly work,” he told CNN this month.

Fauci has defended his original position by claiming that his main concern was preserving the supply of masks for health care workers. But he did not merely say that health care workers should have priority. As illustrated by the 60 Minutes interview, he also questioned the effectiveness of general mask wearing, including the use of homemade masks, which would have no impact on the supply of personal protective equipment for people dealing directly with COVID-19 patients.

Fauci also says the usefulness of masks became clearer as scientists recognized the importance of asymptomatic virus transmission—a rationale also cited by the CDC. “We learned that a substantial proportion of the transmissions occur from an asymptomatic person to an uninfected person,” he told CNN. Yet given COVID-19’s incubation period, typically four or five days, and early reports that many people infected by the virus either never develop symptoms or have symptoms so mild that they do not realize they are carriers, that concern was relevant months before the CDC and Fauci changed their positions.

Finally, Fauci says he responded to accumulating scientific evidence that masks work. “Science accumulates,” he told CNN. “When you’re having an evolving situation, like COVID-19, which clearly is evolving in a very rapid way, you make a recommendation or you make a policy based on the information that you have at a particular time, such as early on in the outbreak in February and March. As you get further information, you have to be humble enough and flexible enough to make your statements and your policy and your recommendation based on the evidence that you now have, which may actually change some of the policy.”

Fair enough. While it remains true that masks do not provide “perfect protection,” they do seem to provide some protection, which is better than nothing. But public health officials now tend to err in the opposite direction, exaggerating what we know about the effectiveness of masks (cloth masks in particular) instead of saying the weight of the evidence indicates that wearing them is a good idea. In particular, the projection by CDC Director Robert Redfield that Biden cited implies more certainty than is possible given the available evidence, as did Redfield’s suggestion that masks would prove to be more effective than vaccines in curtailing the epidemic. And politicians such as Michigan Gov. Gretchen Whitmer have gone even further, citing pro-mask factoids with no scientific basis.

Given all this, it would not be surprising if someone like Trump, who is not exactly known for his intellectual curiosity or scientific literacy, was honestly confused about the merits of masks. His bottom line seemed to be this: “I’m OK with masks. I’m not fighting masks.”

That’s a pretty tepid endorsement, especially when compared to Trump’s suggestion in July that wearing a mask in public is “patriotic.” Trump’s message is certainly much weaker than the strong language used by Biden and by Trump’s own scientific advisers. But some of those statements, especially assertions about how many lives can be saved by masks, go beyond what the evidence actually shows.

Overconfident statements on both sides of the debate about face masks help explain how this scientific issue became so divisive. In late February, Surgeon General Jerome Adams was insisting that masks “are NOT effective in preventing [the] general public from catching #Coronavirus.” He was not simply saying the evidence at that point was insufficient to support general mask wearing; he was asserting that science had proven the practice is ineffective, which was simply not true. Many mask skeptics continue to push that line, while mask enthusiasts say masks are better than vaccines or make easily debunked claims about exactly how effective they are.

Those extremes seem to leave no room for common ground, nuance, or honest disagreement. Trump’s ambivalent comments may be his best attempt to reconcile the irreconcilable.

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