Wednesday, June 16, 2021

Democrats for More Democrats

One of my favorite social campaign slogans of all time is "Neighbors for more neighbors" -- the mantra of supporters of upzoning in Minneapolis-St. Paul. And to co-opt it, Democrats should support policies that create more Democrats.

At one level, that's obvious; at another, it's obscure. What does it mean for a policy to "create" more Democrats? It'd be nice if "good policy that makes people's lives better" had a direct connection to getting more votes, but I'm dubious. Typically, the process through which people become members of a political party is a little less straightforward -- working through cultural affinity and other group dynamics as much if not more so than policy preferences. And on the other side, we should not support a policy that's objectively unethical just because it might redound to the transient political advantage of the Democratic Party. All politics is, in a sense, a trade-off between what's right and what's expedient, but the very best political moves -- the true no-brainers -- are those which are both right and expedient. What we'd want, then, are policies that are both (a) objectively good and (b) are likely to inject more Democratic voters into the polity. 

Statehood for DC (and the other colonies) is an obvious one -- it rectifies a clear injustice of areas under permanent American jurisdiction which lack political representation, and most of the relevant places are strongly blue-leaning (at "worst", places like Puerto Rico are swingy) and so would add more Democrats into American politics.

Immigration reform is, potentially, another. Again, it is correct on the ethics, but it also is likely that many (not all) of the immigrant populations will be inclined to vote blue -- particularly if Republicans insist on declaring loudly and consistently that the immigrants aren't welcome here. Accelerating paths to citizenship -- basically, creating a fatter spigot of naturalized U.S. citizens -- will likely yield more Democratic voters.

A less obvious play is policies which enhance college accessibility ("free college" or related programs), resulting in more Americans getting college-educated. The big story in American voter behavior over the past decade is that partisanship is now sorted almost entirely along the dimension of education -- higher-education cohorts voting blue, lower-education cohorts voting red (this holds even accounting for differences in wealth -- high-ed/low-income voters are still blue, high-income/low-ed voters are still red). 

Does this mean that, if more Americans go to college, they'll come out Democrats? Not necessarily -- it could be that "people who are Democrats are more inclined to go to college" rather than "going to college makes people more inclined to become a Democrat" -- if that's the case, then adding new college attendees won't change the underlying partisan composition of the electorate. But I'm inclined to think that the causal arrow does flow in the direction of "college attendance --> Democrat" rather than vice versa. One hint that this is right is that we're seeing a big shift in voting patterns from college-educated voters who are long-since removed from college, which seems more compatible with college attendance --> Democrat than Democrat --> college attendance.

But what makes the pattern work? It's not because lefty professors are successfully indoctrinating students (as we often remark, we can't even get them to read the syllabus!). In part, it may be that college exposes students to people from a wider range of backgrounds and experiences than might otherwise be the case; that horizon-broadening experience fits better with political progressivism. But right now, I think the larger answer is simply a form of cultural affinity (or, to be a little cruder, tribalism): college-educated persons now are far more likely to be liberals than not, and that very consensus makes it more likely that each marginal member of the college-educated cohort will also be liberal (the same is true for non-college educated voters, but in reverse). People tend to adopt the politics of their surrounding community; if their community is fellow college-educated persons, they'll trend towards the predominant views of that set.

What this means is that if Democrats make a big push to increase the number of Americans who get college degrees, it is likely that the result will be more Democratic voters. It's not going to be everyone, of course. But I suspect if one randomly assigned a sample of Americans who were not planning to attend college into two groups -- one sent to college, one not -- the former would in four years have more Democratic voters than the latter.

It's good to give representation to places under American sovereignty. It's good to welcome immigrants who want to make their home here into the fabric of America. And it's good to increase college accessibility and affordability for Americans of all backgrounds. But each of these policies, in addition to their moral goods, may have the additional happy consequence of creating more Democratic voters. Democrats for more Democrats, please.

Tuesday, June 15, 2021

Blogging Queen, Young and Sweet, Only Seventeen

Happy birthday to this blog, which just turned seventeen years old today!

In that time, I have ...

  • earned four degrees (B.A., J.D., M.A., Ph.D.)
  • lived in eight cities (and ten different apartment buildings, not including dorms)
  • taught at three universities (Illinois, Berkeley, and DePaul) in two different departments (law and political science)
  • held two non-academic full-time jobs and three non-academic summer jobs
  • had one girlfriend/wife (yup -- while I had some high school girlfriends, she's the only person I dated from the time this blog started to present)
And after so much flux and turmoil ... I have just officially begun as an assistant professor at Lewis & Clark Law School! So following a move to one last city, this list should stabilize significantly over (knock on wood) the next seventeen years.

Bad Clients Make Shaky Law on National Origin Discrimination

I just saw an interesting new decision out of New York, Bibliotechnical Athenaeum v. American University of Beirut, concluding that "national origin" anti-discrimination protections do not encompass discrimination against a company for its place of incorporation. The short version of the facts: BA is incorporated in Israel with it's principle place of business in New York, it sought to participate in AUB's online job fair, when it told AUB it was an Israeli company, AUB locked it out of the fair, BA sues alleging national origin discrimination.

It is well-established that a corporation can be subjected to "discrimination" under federal law (on account of race, ethnicity, national origin, or other protected characteristics). But that right is derivative of the identities of members of the corporation -- its shareholders, officers, employees, etc. -- and so merely noting that a company has incorporated in Israel does not demonstrate that any of its human beings are of Israeli national origin. For example, sometimes a company incorporates in a given state purely for tax purposes, but none of its officers or employees have any particular connection to the company. BA, for its part, did not plead any facts demonstrating a connection to Israel beyond the fact that it was incorporated there, and so the court concluded that if that was its only link to Israel, discrimination based on that fact is not actually "national origin" discrimination.

Precedents like this make me nervous. I get the example of how weird it would be for a company which incorporates in some random country for tax purposes being imputed as having the "national origin" of that country for discrimination law claims. At the same time, any time one opens a hole like this -- "national origin discrimination is forbidden, but this thing that's one step adjacent to national origin discrimination and could be used to effectively do the same thing as national origin discrimination is a-ok" -- one does serious damage to the vitality of anti-discrimination law. Exempting from "national origin discrimination" "discrimination on basis of place of incorporation or place of business" is an exception that could easily swallow the rule.

What's going on here? The name "Bibliotechnical Athenaeum" rang a bell -- I had heard of litigation they launched a few years ago against the National Lawyers Guild when the latter refused to accept an ad from them listing their (West Bank) address as in "Israel". But I didn't know anything else about who they were, so this time around I did some research.

Or tried to, anyway. It's virtually impossible to find anything about Bibliotechnical Athenaeum aside from coverage of lawsuits like this (which it appears to launch in collaboration with the Lawfare Project). Indeed, my strong suspicion is that they only exist to launch lawsuits like this: go up to a target they suspect does BDS-like activity, say "we're Israeli and we want to participate", then sue the organization when it locks them out. But aside from that, they don't do any substantive work (the above link on the NLG litigation says that "Bibliotechnical is not an operational, commercial business enterprise."). They are a vehicle for launching lawsuits, nothing more.

Judges tend not to look favorably on this sort of concocted litigation. The most noble example one could find is the "testers" sometimes employed by the Fair Housing Authority, to see if apartments are treating Black and White applicants alike. These are usually state employees, though, engaging in a specific enforcement mission. For better or for worse, more recent efforts by people to fly solo in this endeavor are less warmly received. I recall a series of cases from the Eighth Circuit in the past few years where a guy in a wheelchair would drive hours away from his house to random restaurants looking for technical violations of the ADA, take some pictures, and then sue the business. He didn't have any actual interest in dining at the establishments -- he was just looking for the settlement. The Eighth Circuit started rejecting these "drive-by" cases on standing grounds, saying the plaintiff was not actually injured.

I suspect that the judge in this case perceived this litigation as of a similar sort -- an ideological "drive-by" from an entity that did not actually have any real interest in working with AUB or hiring at its job fair. The fact that BA couldn't plead a tangible connection to Israel other than incorporating there (and, one surmises, it incorporated there solely so it could claim to be "Israeli" when launching litigation like this) further underscored the sense that it was engaging in abusive gamesmanship. And so the court took the path of least resistance in getting rid of the claim, which was to leverage the relatively meager connections between BA and Israel (at least as the case was pled) in order to say that it does not qualify as national origin discrimination under the statute.

However -- cases launched by bad clients still establish governing law. When Bibliotechnical (and Lawfare) launch a case like this and lose, they establish precedents that make life harder for entities with actual, non-concocted legal claims. One can easily imagine an actual company that does actual business and is actually harmed by being excluded from a job fair or whatnot suing for national origin discrimination, and the defense pointing to this case and saying "no no -- we're not excluding you because of national origin, we're excluding you because of the nation you're incorporated in, and that's totally fine!"

Ideally, the cases could be distinguished -- there is language in this opinion which suggests things would be different if BA plead connections to Israel that went beyond place-of-incorporation. But there's also language that is more sweeping in suggesting that, so long as the discriminator is targeting the company for its place of incorporation, no national origin discrimination can be found, period. The former, I think, is the better read; but the latter is absolutely available. And so a bad client makes, at best, very shaky law. Way to ruin it, guys.

Monday, June 14, 2021

Condemning Antisemitism Alone

The Senate just passed S. Res. 252, "A resolution unequivocally condemning the recent rise in antisemitic violence and harassment targeting Jewish Americans, and standing in solidarity with those affected by antisemitism." The resolution, spearheaded by Sen. Jacky Rosen (D-NV), was broadly bipartisan and passed by voice vote.

I've heard very little about this resolution -- in particular, I've heard much less than I've heard complaints over the last few years that politicians don't condemn antisemitism or don't condemn antisemitism "alone" because they link it to condemnations of Islamophobia, racism, or other forms of oppression. I don't find the latter move as offensive as some do, but in any case this resolution is exclusively about antisemitism -- no "and all forms of racism" language here. I hope that the quietude around the resolution is not because certain persons prefer complaining about Jews allegedly being left to fend for ourselves around antisemitism than they do acknowledging when America's political institutions do, in fact, come to support us in the face of antisemitism.

In terms of specifics, the resolution expressly ties the recent surge in antisemitism to the surge in hostilities between Israel and Hamas in Gaza. It also notes a Department of Homeland Security report that concludes that White Supremacist terrorists "will remain the most persistent and lethal threat" to domestic security. It cites instances of antisemitism by prominent politicians in Turkey and Pakistan relating to Israel, as well as the spread of COVID-19 related conspiracy theories, Holocaust denial and distortion, and hate crime spikes. There could be more. There always could be more. But objectively speaking, this is a comprehensive condemnation of antisemitism as it manifests across the political and ideological spectrum.

I thank Senator Rosen for her leadership on this issue, and be grateful that it passed the Senate with seemingly little consternation or conflict. And hopefully, the next time we are tempted by the thought that America turns a blind eye to antisemitism or refuses to condemn it or refuses to condemn it "alone", we remember this resolution.