Let's Get ready to Rumble: Trump Sets Himself up for another Showdown in the Courts with new Executive Order

Someone should tell Trump, "It's a lot easier avoid a problem than it is to solve one." He's just created another problem for himself that he could have avoided and probably still accomplished what he ultimately wanted to do. In commemoration of the National Day of Prayer, Trump signed a "religious freedom" executive order that, among other things, exempts religious organizations from the Johnson Amendment, which prohibits nonprofits from explicitly endorsing or opposing political candidates. This will assuredly go to court (SHOCKER! between me writing this post and publishing it, the Freedom From Religion Foundation has announced their plans to file a lawsuit), where Trump hasn't had a strong success record yet. This impending headache could be avoided, if we just repealed the Johnson Amendment through an act of Congress, which is what Trump vowed to do, and what Ways and Means Committee Chairman Kevin Brady (R-Texas), has also committed to do. I'm not saying that I agree with getting rid of the Johnson Amendment. Doing so opens a can of worms allowing more dark money to influence politics. But if that's what Trump wants to do, he's going about it all wrong.

Disclaimer: I started this post before I read the full text of the executive order, and I think it might not actually do anything. The executive order states that "to the extent permitted by law (emphasis added), the Department of the Treasury [will] not take any adverse action against any individual, house of worship or other religious organization." According to the IRS, "all section 501(c)(3) organizations are absolutely prohibited"from promoting or opposing candidates for office. Words like "all" and "absolutely" do not leave wiggle room for interpretation or discretion (Again, between starting this post and publishing it, I've found out that the ACLU is deciding not to sue, for this reason). That being said, I'll give Trump the benefit of the doubt and assume he didn't want to just pay lip service to religious organizations and that the executive order will actually do what he intends.

In a lot of the outrage in response to this executive order, people are claiming it violates the First Amendment and the separation of church and state. This is a misinterpretation of the First Amendment. The phrase, "separation of church and state" doesn't actually appear in the Constitution; it's from a letter from Thomas Jefferson to the Danbury Baptist association. The First Amendment actually says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Trump isn't violating that because the executive order applies to all religious organizations equally, as seen by the diversity of the clergy surrounding him when he signed it.

Nothing brings different religions together like lobbying money (AP photo/ Evan Vucci)

If it was unconstitutional for religious organizations to endorse or oppose candidate, there would be no need for the Johnson Amendment. The problem with Trump's executive order is that it gives preferential to religious nonprofits over secular ones. "Corporations are people, my friend," and secular 501(c)(3) organizations have a right to equal treatment under the law. In court, the Trump administration will have to show clear and compelling reason for creating this distinction. He can argue that if a person's faith and concern for the fate of their immortal soul persuades them to advocate for or against a candidate, the government should not interfere. Such reasoning is why religious solicitors - *ahem* Jehovah's Witnesses - get special protection from the government, as opposed to salesmen. However, political solicitors get similar protections, as well. Given that the Trump administration is portraying the Johnson Amendment as such an attack on political speech, the courts will likely interpret it as having to apply to all 501(c)(3) organizations or none of them. Maybe in some weird plot twist, his goal is actually to get the Supreme Court to overturn the Johnson Amendment, in a Citizen's United-esque decision. But I don't really think he's that clever, politically.

Furthermore, I don't think it's the president's prerogative to affect the Johnson Amendment. As I stated earlier, the Johnson Amendment is explicit in it's absolute-ness; there's no wiggle room. Therefore, it would necessarily take a Supreme Court ruling, an act of Congress or an amendment to the Constitution to change the Johnson Amendment.

I'm willing to wager the overwhelming majority of Americans had no idea about the Johnson Amendment. If Trump and Republicans took their time, they probably could repeal it in relative silence, since they control both houses and the executive branch. Instead, he's creating a hoopla and leaving it up to the courts, which he hasn't held in high regards. Maybe, Trump just wanted a photo-op he could throw to his base, like the ACLU suggests. His past experience in leadership has been with absolute power, so maybe he doesn't understand the ideas of limited and separation of powers. It was his presidential idol, Andrew Jackson, who said, "John Marshall has made his decision, now let him enforce it." Given his affinity for autocrats around the world, maybe he believes the executive branch should be supreme, and  enjoys these conflicts with the judicial branch. Whatever the case, if he really wants religious organizations to politick, he's shooting himself in the foot. As someone who disagrees with Trump on quite a bit, watching his ineptitude from the Oval Office has been bitter sweet. Every day I ask myself, "How did we get here?" and "Has it been four years yet?"

Negativity Killed the Campaign: How Democrats can Learn from Clinton's Mistakes

Back in college, I had a professor for America Politics who in class said money doesn't win elections. Being a young opinionated liberal post-Citizens United, I immediately shot back that the candidate with the most money wins the overwhelming majority of the time. He rebutted that certainly money helps, but that raising money is basically a proxy for running a good campaign, and that good campaigns are what wins elections. I had a chance to meet up with him a couple days after the election, and given the results, I had to concede that he was right. It's no secret that Clinton vastly out-raised and outspent Trump by vast amounts. Much to my chagrin, I have to agree with Kellyanne Conway that despite Clinton having "oodles of $$," she lost to a "better candidate."

You Ignored WI
Called us deplorable/irredeemable
Had oodles of $$ & no message
Lost to a better candidate

From: Woman in the White House https://t.co/bJQ0xbXwH3

— Kellyanne Conway (@KellyannePolls) May 3, 2017

Now, when I say that Trump was a better candidate, I certainly do not mean that he was better for the job of leading our government; I simply mean that he did a better job of campaigning for the position. He ran on a message that resonated with enough voters to win the White House.

But before I criticize the Hillary campaign, I definitely agree that, despite the flaws in her campaign, the timing of Comey's letter to Congress ultimately cost her the election. Had the election been two weeks sooner or later, the United States would have elected our first woman president. I am not of the persuasion that there was a "silent majority" supporting Trump but were too afraid to admit it to pollsters. Rather, I believe that some people change their minds if and for whom they'll vote during an election cycle, and that at any given time, polls - and especially aggregates of polls - do display an accurate enough portrait of what the electorate is thinking. If you look at polls from this perspective, they showed that Trump had a ceiling of support that he could not exceed, and that Clinton had a floor of support that could be pulled from under her at any moment. Trump's ceiling is illustrated in the fact that despite winning the electoral college he lost the popular vote by a considerate margin. After Trump's remarks to Billy Bush were public, I thought Clinton would have smooth sailings to the White House, no matter what she said or did. However, FBI Director Comey pulled the floor from under Clinton when he wrote that letter to Congress, with not enough time for the Beyonces, Jay-Zs and Miley Cyruses of the world to build her support back up, and that's really fucking unfortunate.

After the election, when a lot of Democrats were complaining about Russian hacking, Comey's letter and the electoral college, I posted on Facebook that they probably complain about bad calls after a sports game. Playing basketball in high school, I used to always get mad at our coach when he would miss calls during our scrimmages at practice. Until, one day I had an epiphany that he did it on purpose to prepare us for when it happens during real games. For those of us who don't go on to play in college and professionally, one of the main benefits of playing sports is to learn how to overcome adversity. Referees are flawed human beings who miss and make bad calls, sometimes at really inopportune times; however, if over the course of the game, you execute better than your opponent, you should be able to overcome that misfortune. Unless you can say that you absolutely played perfectly, your takeaway after a loss should be thoughts about what you could have done better, not what the referee could have done. Likewise, if Hillary had ran a better campaign, she could have insulated herself from the fallout of Comey's letter to Congress.

Clinton does admit she could have ran a better campaign, in her recent comments at the Women for Women International event, but she uses the word "but" before going into all those factors outside of her control. Despite her brilliance, I have always knocked Clinton's inability to follow simple rules that would make her a more effective and well-liked speaker. People tend to forget or ignore everything that comes before the word "but." Therefore, if she wanted to communicate that she took responsibility for the loss, she should have said something like, "There were some things outside our control, but here's what we could have done better." Or, she could have simply replaced "but" with "and." Instead of portraying her as taking ownership of her defeat, because of the way she worded her sentence, the media has made her look like a villain in a Scooby-Doo episode: "I would've gotten away with it too, if it wasn't for those Russians and that blasted Comey."

Going forward, I hope that the Democrat's only takeaway from 2016 is not to beef up their cyber-security. As I said earlier, I don't believe in the "silent majority" narrative. However, if there was any evidence to support it, it was that even when Clinton out-polled Trump and they thought he was not fit for the office, voters still thought he was better for the economy and national security, the two most salient issues for voters in any election. After he left the Trump campaign in the summer of 2015, Roger Stone went on Morning Joe and espoused his belief "that presidential politics is about big picture, sweeping issues and a few memorable phrases." "Build a wall!" "Lock her up!" "Crooked Hillary!" "Drain the swamp!" "Make America great again!" Any of that ring a bell?

(Starting at 1:54 you can see the exact moment I realized Trump would win the Republican nomination and had a legitimate shot at the White House)

Trump kept his message simple, "I'm going to protect you from the globalists who are getting rich by sending your jobs away while immigrants, documented and undocumented, take away what jobs are left here; from ISIS and radical Islamic terrorism; from those currency manipulators in China; from Wall Street; etc." He spoke to the disillusionment many voters, white male voters in particular, increasingly had with government post-Cold War and the insecurity they felt. Certainly, he also played on racist and sexist anxiety; however, despite Clinton's message of "Stronger Together," white women voted for Trump and Trump got a higher percentage of votes than Romney in 2012 from every race except white people.

Hillary is a brilliant policy expert and that the world is much more complex than Trump realized, as he seems to repeatedly admit lately (here on North Korea, here on healthcare, and here on the presidency in general), but she didn't campaign on how much better her ideas were for the American people. Instead, she ran one of the most negative campaigns we've ever seen. The negativity of Hillary's campaign was her biggest mistake. It's taken for granted that people who vote Republican, will vote and vote consistently, while people who vote Democratic may need a little nudge to go to the polls each election. Therefore, in order to win, Democrats need as many people to vote as possible. Negative ads have the adverse effect; they "shrink and polarize the electorate." Those negative ads were low hanging fruit for those of who already supported her, but they did nothing to motivate people on the fence to go out and vote for her.

On her website, Clinton had a plethora of policy ideas and even outlined her goals further in her book Stronger Together. But, I'm sure many people who even bothered to go to her website were like, "tl;dr" and the sales for her book were a dud. As a Field Organizer for a progressive Super-PAC this past cycle (this post went from me criticizing money in politics to admitting I sold my soul), whenever I encountered a voter who said the economy was the most important issue for them and they were on the fence about who to vote for I kept it real simple for them: "You know Moody's, the credit agency? They did an analysis of Trump's plans and an analysis of Clinton's. They found that over five years, Trump's plans would lose 1.5 million jobs and Hillary's would gain about 10.5 million jobs. That's a difference of 12 million jobs!" In those terms, voting for Hillary is a no-brainer, right!? While she was running ads about how our children were watching to Trump's potty mouth, I had to tell mothers about how Clinton had a better plan to subsidize childcare before Trump ever had a thought about the subject. As someone who supported Bernie in the primary and voted Green Party in 2012, I told my fellow Bernie Bros this was not the year for a protest vote. But, I rejected the notion that a vote for Hillary was for the lesser evil; rather, it was a vote for the greater good, even if she wasn't as great as we'd like. Speaking positively of Clinton and her policies and ideas resonated with voters a lot more than simply saying, "Trump's an asshole" and showed how a vote for Hillary was in this country's best interest.

As we look back at the election, we can decry Russian interference, Comey's letter, racism, sexism, xenophobia, etc., but none of that provides a plan for Democrats to defend and gain seats in 2018 and win back the White House in 2020. Bill Maher thinks Democrats should go lower when Republicans go low and Tom Perez apparently thinks Democrats can cuss their way back into the White House. These strategies work. . . for Republicans. However, if Democrats want to motivate their diverse rainbow coalition of voters to show up at the polls, they need to focus on the positive effects their policies bring to the table and not how bad Republicans are.



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