Wednesday, March 27, 2019

Mend, if not end, Electoral College -- March 28, 2019 column


President Donald Trump now praises the Electoral College as genius and brilliant, but he wasn’t always a fan.

On Election Night 2012, citizen Trump tweeted the Electoral College was “a disaster for a democracy . . . a total sham and a travesty.”

He thought, mistakenly, that his choice for president, Republican Mitt Romney, would win the popular vote but lose in the Electoral College.

“More votes equals a loss . . . revolution!” Trump later deleted this and several other 

President Barack Obama won both the popular and electoral votes. Four years later, Hillary Clinton won nearly 3 million more votes than Trump, but she lost in the Electoral College.

When we vote for president, we’re actually voting for electors. To win the White House, a candidate needs 270 of the total 538 electoral votes. Trump won 304 to Clinton’s 227. Seven electors voted for others.

Trump says he realizes “the Electoral College is far better for the USA.” But is it?

The Electoral College has been unloved for decades. Author James A. Michener, an elector in 1968, called the college a “time bomb lodged in the heart of the nation.”

He presciently worried that one day “the man who wins the largest popular vote across the nation will not be chosen President, with all the turmoil that this might cause.” Indeed. Except the man was a woman.

Since the ‘60s, Democrats and Republicans have told pollsters they favor the popular vote over the Electoral College, but numerous attempts to amend the Constitution and abolish the college have failed.

Democratic presidential candidate Elizabeth Warren says she’ll scrap the college as part of a plan to expand voting rights. The current system results in small states being mostly ignored, while swing states get all the attention, she said March 19 at a CNN Town Hall in Mississippi.

“We need to get rid of the Electoral College so that presidential candidates have to ask every American in every part of the country for their vote, not just those in battleground states,” she said.

Democratic contenders Pete Buttigieg and Beto O’Rourke also support changing to the popular vote.

Trump warns letting the popular vote prevail would mean “the cities would end up running the country. Smaller states & the entire Midwest would end up losing all power & we can’t let that happen,” he tweeted.

Senate Judiciary Committee chairman Lindsey Graham and other Republicans oppose a constitutional amendment -- but that’s not the only avenue to change the system.

The Constitution determines how many electors a state has: one for each House member and two for the senators. But it does not say how states must allocate their votes.

All but two states use a winner-take-all system, which means most states are not in play. A candidate doesn’t have to win a majority of votes in a state to win all its electoral votes.

“In 2016, Donald Trump won all the electoral votes, totaling 101, in six states where he received less than 50 percent of the popular vote: Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin. (Hillary Clinton won seven states this way),” Edward B. Foley, a law professor at Ohio State, wrote in an essay for Politico in January.

“In reality, the current system works to the detriment of both Republicans and Democrats,” he said. His book, “Presidential Elections and Majority Rule” will be published in December by Oxford University Press.

Nebraska and Maine use a better system, splitting their electoral votes according to  the outcomes statewide and in each of their congressional districts.  

Another approach is the National Popular Vote Interstate Compact. So far, 12 states and the District of Columbia with 181 electoral votes have pledged their electoral votes to the winner of the national popular vote, ensuring the popular vote winner was also the Electoral College winner.

The compact would kick in only after the total number of Electoral College votes in member states exceeds 270. It likely would be challenged in court.

The Founding Fathers couldn’t agree whether the president should be elected by popular vote or the Congress, and their compromise led to the Electoral College.

That compromise has outlived its usefulness. It’s time to look at ways to minimize its role, whether through the compact or splitting up results by congressional district. 

Either would deliver fairer and more representative presidential elections.

©2019 Marsha Mercer. All rights reserved.

Wednesday, March 20, 2019

What Trump in 2016 teaches us about 2020 -- March 21, 2019 column


We’re coming up on a milestone, of sorts.

On March 23 four years ago, the first hopeful Republican contender entered the 2016 presidential race.

“The answer will not come from Washington,” he said. It will come “when the American people stand together, and say, `We will get back to the principles that made this country great.’”

Sound familiar? Not exactly. It was Ted Cruz, in a speech to cheering students at Liberty University.

That was in the B.D. era – Before Donald.

As more Democrats line up to run for president, it’s worth remembering what happened when 17 Republicans competed for the presidential nomination.

We know who won. How many of the others can you still name?

Time’s up. They were: Jeb Bush, Ben Carson, Chris Christie, Carly Fiorina, Jim Gilmore, Lindsey Graham, Mike Huckabee, Bobby Jindal, John Kasich, George Pataki, Rand Paul, Rick Perry, Marco Rubio, Rick Santorum and Scott Walker.

When Donald Trump jumped in nearly three months after Cruz, he vowed at Trump Tower to “make our country great again” and “have Mexico pay for the wall.”

He also gave a sour taste of things to come when he gratuitously belittled his opponents at their campaign launches.

“They didn’t know the air conditioner didn’t work. They sweated like dogs. They didn’t know the room was too big, because they didn’t have anybody there. How are they going to beat ISIS?” Trump said.

Trump was making a fallacy of false cause argument -- trying to establish cause and effect between unrelated things. Someone’s not knowing the air conditioning was broken at a venue shows absolutely nothing about how he’d do at fighting ISIS. It’s absurd, but catchy.  

Trump laid waste to once-viable candidates one disparaging nickname at a time: “Lyin’ Ted” Cruz, “Liddle Marco” Rubio and “Low Energy” Jeb Bush.

In Cruz’s case, Trump also claimed Cruz’s father was associated with Lee Harvey Oswald before the JFK assassination. Cruz called the allegation nuts and kooky.

“You know, you have to brand people a certain way when they’re your opponents,” Trump said before the Florida primary in March 2016, explaining how to call out Cruz: It’s “Lyin’ Ted,” he said, “L-Y-I-N-apostrophe.”

“We can’t say it the right way,” he said. “We’ve got to go, Lyin’! Lyin’! Ted!”

Moving on to Rubio, he spelled out “L-I-D-D-L-E. Liddle, Liddle, Liddle Marco.”

Trump has an uncanny knack for finding a rival’s soft spot and choosing a nickname that sticks.

He famously labeled Democratic presidential nominee Hillary Clinton “crooked Hillary,” called her “such a nasty woman” in a debate, and at rallies beamed as his supporters chanted, “Lock Her Up.”

Trump’s ad hominem attacks were stupid, wrong and creepily effective.

Now, the 2020 Democratic presidential hopefuls are his target.

He reportedly thinks Elizabeth Warren will be the Democrats’ pick and early on dubbed her Pocahontas for her claim of Native American heritage. She has struggled ever since, finally apologizing for saying she was Native American.

Lately, Trump watched Beto O’Rourke’s video announcing his candidacy March 14 and picked up on his expansive hand gestures.

“I think he’s got a lot of hand movement. I’ve never seen so much hand movement. I said, `Is he crazy, or is that just the way he acts?’” Trump told reporters.

It’s only March 2019. O’Rourke has time to tone down the splashy gestures. Not all the Democratic candidates are even in the pool.

Joe Biden is said to enter the race soon. Virginians Terry McAuliffe and Mark Warner are among those weighing a bid.

Meanwhile, Trump is warming up his attack machine. He called Biden Monday “another low I.Q. individual.”

As we saw in 2016, he shut down his rivals before they could introduce and fully define themselves through their actions, ideas and policies.

Trump will try again to set the tone of the presidential campaign with his personal-attack brand of politics, but he doesn’t set the rules.

Voters should pay attention to policies and hold all candidates accountable for glib fallacies and falsehoods.

We can tune out slurs and nicknames for what they are: petty, malicious noise.

And, most important, we can vote.    

©2019 Marsha Mercer. All rights reserved.

Tuesday, March 19, 2019

How much regulation is needed on cottage foods? My latest on Stateline -- March 19, 2019



As Home-Cooked Cottage-Food Industry Grows, States Work to Keep Up

WASHINGTON — Jenny White made her first batch of chocolate truffles two decades ago, soon after she finished eating the last delicious ones — flavored with blood orange and ginger — she had carried home from a trip to France.
“Maybe I can recreate this,” she thought. Today, chocolate truffles flavored with blood orange and ginger are among the most popular items of Swoon Chocolates, White’s fledgling cottage-foods business.
White, a self-taught chocolatier, creates her treats in the kitchen of her apartment here and sells them at pop-up shops and public events around the nation’s capital.
Her day job is as a government contractor — “a perfectly respectable career choice,” she said, “but chocolate is more interesting.”
She is one of only two legal cottage-food producers in Washington, D.C., where a few years ago it was against the law to sell home-prepared foods to the public. Food had to be prepared in a commercial kitchen.
As more consumers shop at farmers markets and “eat local,” U.S. local food sales, including cottage-food sales, have soared from $5 billion annually in 2008 to a projected $20 billion this year, according to former U.S. Agriculture Secretary Tom Vilsack.
Every state except New Jersey now allows home-kitchen cooks to make and sell non-hazardous foods with a low risk of causing foodborne illness such as baked goods, jams, jellies and other items that do not require time and temperature controls for food safety.
Maine, North Dakota, Utah and Wyoming have gone further, enacting “food freedom” laws that exempt home producers from food-safety rules that apply to grocery stores, restaurants and other food establishments.
Advocates see food freedom as a matter of personal liberty and think informed consumers can make their own choices. The issue is a cause among those who want less government regulation.
“Some legislators just forget common sense. Sales of homemade foods have been going on for hundreds of years,” said Erica Smith, an attorney with the Institute for Justice, a constitutional rights law firm that successfully sued Wisconsin and Minnesota to allow cottage-food sales.
A lawsuit filed in December 2017 by the institute and the New Jersey Home Bakers Association challenges the constitutionality of New Jersey’s cottage-foods ban. No trial date has been set.
“I want to bake and earn some extra money on the side,” said Heather Russinko of Franklin, New Jersey, one of the plaintiffs and the single mom of a 15-year-old son.
After she took cake pops to her son’s school and sports groups, people wanted to order baked goods, but, she said, “I found out it was completely illegal.” So she gives away the treats.

‘Cottage Foods on Steroids’

Proponents say cottage foods are as safe as commercial foods, if not safer, because producers are cooking for their neighbors. But many health officials worry about food safety.
“We do not believe it is unreasonable to expect people who are making food to make it safely,” said Joe Corby, former executive director of the Association of Food and Drug Officials and a former director of food safety in New York’s Agriculture Department.
His association, based in York, Pennsylvania, issued guidelines in 2012 for cottage-food regulations, spelling out best practices, including which foods are safe to make at home, what labeling is necessary and where foods may be made — only in the kitchen of someone’s primary residence.
Each state has its own food-safety laws, and the federal government rarely intervenes. The federal government has authority over food in interstate commerce, but state law traditionally has regulated food produced for sale within state lines, according to “Cottage Food Laws in the United States,” updated in 2018 by the Harvard Law School Food Law and Policy Clinic.
However, when the Maine legislature passed a food sovereignty law in 2017 that allowed municipalities to set their own food-safety ordinances, the U.S. Department of Agriculture threatened to take over meat inspections in the state.
The Maine legislature clarified that localities must abide by federal meat and poultry regulations.
“Food freedom is pushing the envelope. It’s basically cottage foods on steroids,” said Doug Farquhar, program director for environmental health at the National Conference of State Legislatures. “It’s a pretty risky proposition.”
State legislatures this year have introduced at least 39 bills related to cottage food, including three food-freedom bills, NCSL’s Farquhar said.
New Mexico and West Virginia are considering food-freedom laws, while North Dakota legislators might clarify their intent in a 2017 law. A food-freedom bill in Mississippi died in committee in February.
During the 2017 and 2018 sessions, 12 cottage-food-related bills were enacted in 10 states, according to NCSL.  

Fresh Banana Cream Pie

The Wyoming legislature adopted the nation’s first Food Freedom Act in 2015, after rejecting it five times in seven years. The measure finally sailed through after a provision was removed allowing the sale of raw milk and meat. The state law was expanded two years later to include raw milk and some meat products.
“Meat products were the most controversial,” said state Rep. Tyler Lindholm, the Republican sponsor, who introduced expansions in 2017 to include direct sales in-state of up to 1,000 chickens per farmer, as well as fish and rabbit.
The Wyoming law allows homemade food and drink to be sold directly to a consumer for home consumption without state license, inspection or regulation. Sales are exempt from state sales tax.
“As we suspected, small business is self-regulating,” Lindholm said. “When you’re at the farmers market in a town of a thousand people, you know where your products are coming from, and everybody knows it’s not an inspected product.”
He would like to add red meat to the food-freedom law, but meat inspection is required by the U.S. Department of Agriculture.
“Doing business in a small town, the farmer will spend more time inspecting the meat than the 2.7 seconds the USDA inspector spends,” he said.
In Wyoming, the least-populated state, with just under 580,000 residents, the Department of Health has not received any reports of foodborne illness from homemade goods, according to Tiffany Greenlee, an epidemiologist with the agency. “That doesn’t mean outbreaks aren’t happening, but they’re not reported,” she added.
When North Dakota passed a similar food-freedom law, the North Dakota Grocers Association opposed it as fostering unfair competition. 
“It seemed unfair in a rural state like North Dakota with a lot of small, rural stores that we have to follow all these health regulations when the cottage-food people can do whatever they like,” said John Dyste, president of the grocers association.
Last year, the North Dakota Health Department started requiring that foods needing refrigeration be sold frozen if transported to a farmers market. The agency allows food to remain refrigerated if sold from the home.
“We want to be sure we provide safe food to the markets,” said Julie Wagendorf, director of the agency’s Division of Food and Lodging. “If they’re going to come and pick them up, it’s the consumers’ responsibility.”
But advocates for food freedom strongly objected, saying the law intended no rules. The requirement to freeze goods especially rankled advocates and other critics of the proposed rules.  
“What happens if you have a fresh banana cream pie? It’ll ruin if it’s frozen,” said LeAnn Harner, a dairy goat farmer in Oliver County, North Dakota, who led the food-freedom fight in the legislature.
Harner says the law needs to be clarified, as does North Dakota state Sen. Jerry Klein, a Republican who sees himself as a referee. He introduced a bill to clarify that some regulations are acceptable.
“We don’t want to over-regulate, but we need some regulation,” said Klein, a retired grocer.
“The concern is, we don’t want them selling lasagna out of the trunk of their car,” he said. “That happens — then you’re in food service.”

D.C. More Restrictive

The nearly limitless cottage-food laws in North Dakota and Wyoming are far from what’s happening in Washington. The D.C. City Council passed a cottage-food act in 2013, but final rules were not issued until December 2017.
White received approval as a cottage-foods producer in November, shortly after Emily Annick, who was the first. Two other producers are in the application process. 
On a Friday afternoon after work, Annick bends over the granite kitchen island in her condo and carefully pipes warm chocolate ganache into dozens of miniature jars to sell at a food festival the next day.
“I love it,” she said of her part-time business — 440 Confections, named for her home address — but, she added, “There are a lot of restrictions in the District.”
Before Annick could sell a single jar of her “Chocolate Goo” ganache or White could sell her first chocolate truffle, both had to pass a certified food protection manager course. The local health department inspected their kitchens and observed Annick’s cooking.
Each had to submit a product for lab analysis, send in a list of the specific items for sale, obtain a business registry number and follow more rules, including limits on where the product can be sold. They must collect sales taxes and make no more than $25,000 in gross revenue annually, to make sure the operations stay small. Larger operations have different rules and license requirements.
“Honestly, in the District, you are very limited if you have a full-time job or family and can only sell at farmers markets or public events,” Annick said.
Still, she thinks her cottage business is a good first step toward her goal of someday opening a bakery.
Across the Potomac River in Alexandria, Virginia, Chad Breckinridge needed a diversion from his day job as a government attorney, so he started making bagels in his home kitchen to sell at a farmers market in 2015.
Virginia’s cottage-food law isn’t nearly as strict as Washington’s.
“It was quite easy,” Breckinridge said. “I had to assure the health department I wasn’t selling anything that required temperature control — and that was basically it.”
His Bagel Uprising business was so successful that two years later, he moved on to making and selling the bagels at a local cafe. Breckinridge recently signed a lease on a storefront in Alexandria and plans to open his first permanent Bagel Uprising shop this spring.

Wednesday, March 13, 2019

Pelosi quashes I-word -- for now -- March 14, 2019 column


The front-page headline in the New York Post blared: “PELOSI BLINKS.”

A smaller one read: “`He’s just not worth it,’ says speaker.”

He, of course, is President Donald Trump. House Speaker Nancy Pelosi made headlines Tuesday when she said, “I’m not for impeachment.”

Did she blink? Hardly.

Pelosi has been playing down impeachment talk since she became speaker, urging Democrats to wait for various investigations to yield hard evidence before rushing to impeach.  

Her comments made news because the interview with Joe Heim in The Washington Post Magazine, published Monday, was the first time she stated her position so succinctly to a reporter.

Some in Trump’s camp evidently felt comforted by Pelosi’s comments.

“I’m glad she sees what the rest of us see, that there is no reason, no cause for impeachment,” White House Press Secretary Sarah Sanders said on Fox News, typically mischaracterizing what Pelosi said.

Trump, taking the role of victim, cries harassment and calls all investigations a witch hunt.

No one should labor under the delusion Pelosi is giving Trump a Get out of Jail Free card.

Asked if Trump is fit to be president, she said no, he is “ethically unfit. Intellectually unfit. Curiosity-wise unfit.”

Pelosi wants Trump out, but the canny strategist wants to oust him the old-fashioned way – through the electoral process.

She also wants Democrats to retain control of the House and regain the Senate. The last may be wishful thinking, but none of her goals has a prayer if Democrats lose sight of their policy agenda and alienate a wide swath of the electorate, especially 
independent and moderate voters in swing districts.

Impeachment would draw attention away from such Democratic goals as reducing prescription drug costs and ending gender discrimination in the workplace.

So Pelosi has slowed the impeachment train, although some congressional Democrats, like Rep. Al Green of Texas, who first introduced an articles of impeachment resolution in January 2017, and some House freshmen vow to continue their efforts.

Pelosi’s statement provides political cover for Rep. Jerrold Nadler of New York, who heads the House Judiciary Committee, and other Democratic chairmen who face pressure to impeach.

Billionaire activist Tom Steyer, who reportedly plans to spend $40 million in the 2020 election cycle to get Trump impeached, has run ads in Nadler’s and others’ districts, urging them to get on with it.

Nadler launched a sweeping investigation into possible wrongdoing by Trump and has said he believes Trump has committed obstruction of justice. But Nadler said he needs to gather evidence.

The constitutional grounds for impeachment are not whether one finds the president personally odious or his policies wrong-headed. The grounds are “treason, bribery, or other high crimes and misdemeanors.”

It takes time to build a case and the necessary public support for such a wrenching take-down. President Richard Nixon held on and did not resign until Republican congressional leaders broke the bad news that he was about to be impeached. 

Voting to impeach Trump prematurely would be the political equivalent of downing a large piece of chocolate lava cake while dieting – delicious in the moment but ultimately a self-defeating indulgence.

The reality is even if the House were to vote to impeach Trump, a trial in the Senate would not remove him from office, not at this point with a GOP majority, and failed impeachment could redound to the benefit of Republicans.

Pelosi was in the House when Republicans impeached President Bill Clinton, failed in the Senate to remove him from office – and lost seats in the next election.    

Pelosi did leave the door ajar for impeachment of Trump someday, but said it’s so divisive it should be avoided “unless there’s something so compelling and bipartisan.”

Compelling and bipartisan are good standards. There’s also a question of timing. 

Unless impeachment proceedings take place this year, 2020 may be too late. Impeachment proceedings would take over the campaign and incite Trump voters.   

Pelosi likes to quote Lincoln: “Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed.”

If Democrats want to succeed, they should listen to and trust the experienced Nancy Pelosi.

©2019 Marsha Mercer. All rights reserved.

Wednesday, March 6, 2019

First Hispanic Supreme aims not to be the last -- March 7, 2019 column


As a child growing up in the South Bronx projects, Sonia Sotomayor never dreamed of being on the Supreme Court.

“You cannot dream of something you don’t know about,” she said, adding, “That has been the most important lesson of my life.”

Sotomayor, the first Hispanic and the third woman justice on the U.S. Supreme Court in history, has made it her mission to inspire children with words we seldom hear anymore from anyone in public life.  

“Everything in life is hard. To get anywhere, to do anything, you have to work at it,” she said March 1 in a conversation with actress Eva Longoria Bastón at George Washington University.

The auditorium was filled not with college students but schoolchildren, many of them Hispanic, and Sotomayor spoke Spanish as well as English.

“You’ve got to work hard, you have to study hard, you have to do a lot of things you don’t want to do, but there can still be hope,” she said. “And I want every child to live in the world knowing dreams can come true.”

She’s been on tour to promote her latest book, “Turning Pages: My Life Story,” a children’s picture book in Spanish and English, which she called, “a great way to learn Spanish or if you have to learn English.”

Showing photos in the book of her family and herself as a child, she said: “I look like a lot of you – don’t I?”

When President Barack Obama named Sotomayor to the court in 2009, he called  her “an inspiring woman who I believe will make a great justice.”

His choice sent a powerful message to the Latino community and all minorities that America still can be the land of opportunity – a message needed even more today than a decade ago.  

Sotomayor, 65, was born in New York City, where her mother, an Army veteran, and her father relocated from Puerto Rico. Her dad, a tool-and-die maker, did not speak English; her mom, a nurse in a methadone clinic, was fanatical that Sonia and her brother learn English and get a good education.

After her father died when she was 9, young Sonia went to the library to escape the sadness at home.

“Reading is the key to your success in life,” she said.

Asking if her young listeners had library cards, she said: “Make your parents take you tomorrow to sign up.”

As part of her mission, she also promotes civics -- “the most important class you can ever take in school.” She serves on the board of iCivics, founded by retired Justice Sandra Day O’Connor, which teaches civics through video games.

In her pre-video game youth, Sotomayor was inspired by watching “Perry Mason” on TV. The first iteration of the popular TV legal drama and who-done-it ran from 1957 to 1966. 

Sotomayor attended Princeton University. Her first job out of Yale Law School was as an assistant district attorney in Manhattan. She was named a U.S. District Court judge by President George H.W. Bush and to the 2nd U.S. Circuit Court of Appeals by President Bill Clinton.

“Yes, it’s a little bit harder when you come from a background a lot of other people don’t come from,” she said.

But asked how her Puerto Rican heritage influences her, she credits it with instilling her identity and values.

“It’s not just food or music or poetry, it’s the way you learn to love one another as a family,” she said. 

When Obama nominated her, critics said she wasn’t “smart enough” to be a Supreme Court justice, she told the kids.

“That hurt me a lot,” and she started to doubt herself. But she didn’t let her doubts stop her.

She had faced fear at an early age. At age 7, she was diagnosed with Type 1 diabetes and, terrified of needles, had to learn to give herself insulin shots.

She steeled herself to the task by emulating a character in her favorite comic book.

“Maybe I can find the bravery Supergirl has,” she thought at the time.

She urged her young listeners not to let fear stop them from pursuing their dreams.

“We all have courage inside us.”