Blight

Many of you know that I usually focus on federal issues, but I want to get something off my chest. People periodically talk about “blight.” The language suggests a focus on the buildings. They may need paint or repairs – though that doesn’t seem so offensive in rural areas. People with more money like to see property that matches their artistic senses more closely. I have always enjoyed walking among fine specimens of architecture. But what we tend to call blight includes homes. Regardless of color, and most of the poor are white, people live there because that’s what they have enough money for. They may laugh and play like the rest of us despite what appears to those of us with more money as flaws in their living space.

Since I’ve worked as a store-front lawyer in programs designed to give legal assistance to people without the resources to hire lawyers, I’ve been in some of those homes. And I knew the folk who lived there. I will never forget some of them – decent, hard-working people who did the best they could for their families and their neighbors, and when they could, their houses too, though that depended on their landlords.

But the normal way people try to deal with blight is to tear it down in which case the people have to scatter. Of course others will complain that they’ll bring their blight somewhere else. In Cape Town, South Africa, people were pushed three quarters of an hour out of the city and had to hang out of so-called busses to get to their jobs. But they put flowers in their windows, carted jugs of water and hooked themselves in to the electric wires that pass by. The only places for the kids to play were a garbage dump and across unguarded railroad tracks.

When I was in St. Louis, government blew up the Pruitt-Igoe houses. I don’t remember evidence that St. Louis was improved. For a different project, I worked with a group of social scientists at the universities in St. Louis to explain that the impact of building a highway through a poor and Black community would have been total community disintegration – separation of people from their workplaces, separation of churches and congregants, separation of businesses and patrons, separation of professionals – doctors, lawyers, etc. – from those they serve, separation of friends and even families – that’s the result of eliminating “blight.”

There is of course another approach. There’s no perfect solution that works for everyone, but various groups and governments around the globe, some even in the U.S., have tried giving people money or other support. The evidence is that those programs work. But people get outraged about their hard-earned money going to help people who, for whatever reason, don’t have any. Except of course the people who are helping themselves to my and most of our hard-earned money are the super-rich who have decided that it is unseemly for them to pay taxes – taxes are for the unwashed who barely have the money.

Frankly, I think a little public support could pay dividends to the community. On the other hand there’s that warehouse – now that does need to be torn down before it falls on another Amtrak train and assorted people in the neighborhood.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 30, 2022.

Gerrymandering by Bipartisan Commissions and Judicial Referees

We’re going through the primaries for state legislators and members of Congress. It’s a mess. Some well liked and experienced legislators were thrown into the same districts so they had to compete and excellent legislators will surely be knocked out. But do the districts treat the two parties equally?

For years, each house of the New York legislature designed its own districts. And the majority party controlled the design of the congressional seats. New Yorkers rightly complained that legislators should not control the design of their seats and choose who could vote in their districts, thereby assuring their continuance in office and negating the voters’ power to kick them out.

New York and several other states recently turned to nonpartisan commissions and now a special master to design some of the New York legislative districts.[1] While this was going on, several cases challenging gerrymandering were brought to the Supreme Court. Plaintiffs brought to the Court carefully designed mathematical methods to test whether the selected design of legislative seats was a partisan gerrymander. One by one the US Supreme Court rejected every one of them. It rejected the neutrality or symmetry formula, which has long been treated as the gold standard among political scientists, in League of United Latin Am. Citizens [a/k/a LULAC] v. Perry.[2] It rejected the wasted votes formula, also known as the efficiency gap, in Gill v. Whitford.[3] It refused to treat partisan gerrymandering as a justiciable issue.[4]

So-called nonpartisan commissions are no substitute for a standard. That can be because the membership of such commissions can be gamed. It can also be because members of such commissions can be inexperienced or don’t understand the consequences of what they’re doing. Only by testing their results can we be sure that they have been fair.

A test is not a program that will write the districts. Each test can be satisfied in different ways.  But whatever the choices, the tests can verify that the results will be fair to both of the major political parties. The commissions and the people that choose them will not be able to ordain a Democratic or a Republican result. That’s the people’s job.

Years ago, the New York Law Journal published my commentary[5] on the Supreme Court’s decision on some Pennsylvania gerrymandering. I used the decision to urge the use of the neutrality or symmetry standard.[6] A couple of years later I got a call from one of the nation’s top Republican lawyers. We were on opposite sides and he knew that, but my point was for fairness between the parties. He had read my op-ed and called as a curtesy to tell me that he was persuaded to try using symmetry in the LULAC case. A brief submitted by a group of eminent political scientists explained the symmetry test at length. So when the briefs were submitted and published, I looked for his. But he didn’t use the symmetry test. So I called him back. He told me he ran the numbers but it didn’t work so he left it out. He couldn’t use it if it would hurt his clients. In other words, the symmetry test worked well enough to dissuade a lawyer from using it when it revealed that his clients had written a partisan districting plan. If the Court had adopted the standard, we would have gotten the fair results many of us wanted, instead of the partisan results he wanted and got.

Nonpartisan commissions and court appointed special masters can sometimes be an improvement, but mathematical tests of their fairness make them even better.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 24, 2022.

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[1] Matter of Harkenrider v. Hochul, 2022 NY Slip Op 02833.

[2] League of United Latin Am. Citizens v. Perry,  548 U.S. 399 (2006).

[3] Gill v. Whitford, 138 S. Ct. 1916 (2018).

[4] Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[5] In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, August 19, 2004, pp. 4, 7.

[6] Vieth v. Jubelirer, 124 S.Ct. 1769 (2004).

Krugman on Why we don’t have a carbon tax

It’s a very interesting and perceptive piece. Clearly a carbon tax would be very helpful in battling the overuse of fossil fuels. Krugman points out that a number of very distinguished economists have supported it. The proposal was nonpartisan – half the economists served under Republican Presidents. But Americans won’t stand for taxes no matter what. So Krugman argues that the alternative is subsidies and they work too. And that’s the approach of the legislation President Biden signed today. Definitely a step forward.

Pelosi

Republicans attacked Nancy Pelosi when she was Speaker of the House under Obama and now again under Biden. Easier to attack her than the president. They tried to block everything Biden tried to do and then turned around and hypocritically attacked him for not getting the job done. And they’ve attacked Pelosi for getting too much done, passing things they didn’t like. Speaking out of both sides of their mouths, Republicans claim Biden and Pelosi didn’t get the job done except when claiming they did too much.

Some Democrats picked up the chant – Republican criticism made them shy to support Pelosi. Wow – Republicans got Democrats to attack the biggest thorns in the Republicans’ side! Republicans’ hatred for Pelosi’s success is exactly why Democrats should stand by her. Democrats that do Republicans’ bidding are Democrats in Name Only – DIMOS.

She proudly lists among her accomplishments laws she, Biden and Obama got done – each a poke in Republican eyes:

• The just passed Inflation Reduction Act
• The American Rescue Plan to deal with the pandemic.
• The American Recovery and Reinvestment Act to rescue America from the 2009 financial crisis.
• The Lilly Ledbetter Fair Pay Act  to restore women’s ability to fight pay discrimination.
• The Dodd-Frank reforms to rein in big banks and protect consumers, seniors and Servicemembers.
• Obamacare, the Affordable Care Act, and they blocked the effort to repeal it, increased funding to fight the opioid epidemic, and support NIH medical research.
• They also passed major energy and environmental legislation in 2007, 2009 and 2021, to raise fuel efficiency standards, support America’s homegrown biofuels, create clean energy jobs, combat the climate crisis and transition America to a clean energy economy and help American communities improve resiliency to climate disaster, plus she helped provide new funding to combat poisons in our air and water for our health.
• They also passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, advancing justice for the millions of Americans at risk from discrimination and violence simply for being who they are.
• For America’s workers and families they increased the minimum wage for the first time in a decade; and she shepherded through Congress the largest college aid expansion since the GI bill; 
• For our veterans, a new GI education bill for those who served in the Iraq and Afghanistan wars; increased services for veterans and their caregivers; and care for veterans exposed to toxic chemicals in the line of duty;

Under her leadership, the House created the bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol.

And under her leadership, the House voted:

• To expand ballot access, outlaw partisan gerrymandering, combat dark money in politics, and pass the John R. Lewis Voting Rights Advancement Act to restore the federal government’s power to defend ballot access across the country.

Under her leadership, the House voted

• To help Biden put together billions of dollars to support Ukraine and orchestrate severe consequences on Russia.
• To stand by the repeal of policies that prevented gay and lesbian Americans from openly serving their country.
• To pass legislation:
  • To save lives through mandatory background checks for gun purchases;
  • To protect pregnant workers against discrimination;
  • To reform America’s immigration system and secure justice for Dreamers and farmworkers;
  • And to protect borrowers from unfair lending practices.

I’d say, keep it up, Nancy. I appreciate and admire you, Biden and Obama for the same reasons Republicans don’t. Wow!

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 16, 2022.

The Logic of Policing

Whenever there’s a serious crime, police, DAs, etc., call for more police. But take a serious look at the logic of what they’re asking for. Police get to crime scenes after crimes have been committed. Theirs is largely a mopping up operation. Other agencies and organizations get there before there’s a problem. Social workers, youth programs, parks departments, religious institutions, swimming programs, after-school activities, community colleges, training programs, are all in the prevention business, and thank heavens people are going back to work at last.

Police force size can affect crime rates. But data show that crime goes up and down, regardless of whether the police forces have gotten larger or smaller. Many other factors have much more impact on the crime rate and are far beyond the ability of police departments to handle.

In the years when it was a woman’s right, the availability of abortion and contraception reduced the number of unwanted babies so far fewer grew up where they weren’t wanted, where they became more susceptible to criminal paths.

The recent pandemic disrupted every aspect of life, put many out of work, increased frustration, even desperation for some, and left many with nothing to do. The pandemic caught government between terrified teachers and desperate parents, between essential workers who couldn’t stay home to care for their families and schools which couldn’t be staffed. The results stressed everybody and left many young children without the adult direction children need. The stress, lack of supervision and daily structure all contributed to increased violence.

And the effort to blame bail reform is equally misguided blame shifting – it was much more significant that the pandemic slowed or closed courts making justice unavailable. And remember, it’s bail that’s catch and release – as the Governor has been explaining, many provisions allow judges to keep dangerous people behind bars, without giving judges vague and unbounded discretion that allow their prejudices to determine whether to ruin people’s chances at productive and decent lives by locking them up at the cost of their jobs, their families, their kids and their futures.

It’s important to support agencies that show up before there are crimes to investigate. We once paid much more attention to getting young people off the streets and into group activities. And there were lots fewer guns on the street. The police are just one agency among many whose jobs are much more directly related to prevention.

Some people are much more committed to retribution than prevention. We used to call prisons penitentiaries where people can become penitent. We often call them the clink, cooler, or house of detention where people are stored away from everyone else. And then we started calling them reformatories and houses of correction which are supposed to change and prepare inmates for return to society – though our prisons are still our best schools for criminal and gang behavior. Recidivism is high. But we “save money” by ending programs that actually decrease future crimes like education in prisons. Too often we stress retribution over prevention and get punishment without prevention.

Loading conflicting demands on police departments that they’re not well designed to fulfill doesn’t do justice to them or to us. The logic of public safety is that the police are the people who show up after the damage is done, while other agencies show up before things go wrong and provide the assistance and direction people need. We need to support the agencies that work with people before the crimes are committed.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 9, 2022.

Restore Workers’ Rights

Republicans and conservatives talk about the law of supply and demand as if law had nothing to do with it. For millennia, the law of supply and demand meant slavery.[1] In Europe, where we whites trace our ancestry, it was called serfdom, was pervasive and almost certainly included some of your ancestors. Serfdom may have been less cruel than slavery as practiced here before the Civil War, but serfdom involved such things as the right of the master to your daughters’ virginity. It wasn’t nice. The Hebrew Bible put limits on slavery without eliminating it. The medieval Catholic Church had rules about slavery, about who could enslave which Europeans. Christians, Muslims,[2] and Africans themselves[3] played dominant roles in the African trade. More recently, women were their husbands’ slaves, taking a vow to obey. What was called indentured servitude was time-bound “voluntary” slavery. Those were economic decisions by women and parents.

Why did it stop, to the extent it did? ? Religion, revolution and law. Spanish Dominican clerics made the case that slavery was a violation of natural law,[4] which also caught on in Scotland. The French revolted against rule by the aristocracy. The American Revolution made aristocratic titles unconstitutional and freedom central to Revolutionary ideology, though some Americans thought freedom only applied to themselves. Gradually law changed. States outlawed slavery before the Thirteenth Amendment made it nationally illegal. The British banned the slave trade and eventually slavery itself.[5] Eventually, during our own Civil War, the Russian Czar ended serfdom. And early in the twentieth century, the US Supreme Court held that peonage, a form of voluntary slavery, was also illegal.[6] The law of supply and demand is the law of the strong over the weak and there are no boundaries.

So how come the American worker enjoyed a golden age? They formed unions. But unions were only as good as the law. In the 19^th and early 20^th century, federal, state and local troops fought, fired at and killed strikers. Union members and organizers were driven out by corporations and their police. Only passage of the National Labor Relations Act in the 30s, under Democratic President Franklin Roosevelt, began to give us civilized labor relations and give the American worker a fair shake.[7]

Corporations and their Republican allies tried to take it all back. They passed the Taft-Hartley Act over the veto of Democratic President Harry Truman. Whenever and wherever Republicans held power they cut back workers’ rights. Democrats kept trying to restore them but the filibuster in the Senate made it impossible.

It is time to recognize that the filibuster is the work of the devil and get rid of it. Today people work for hourly pay without security about how many hours they’ll get or whether they’ll have a job at all, with no limit on how long they’ll have to work or how little sleep they’ll get – and no medical or retirement benefits. I remember a swim coach who trained Olympic gold medal swimmers in Russia but brought his family here for medical care after Chernobyl. This enormously talented and skilled swim coach worked three jobs in this country just to put food on his family’s table. That’s what supply and demand is like.

That’s why law is necessary – why we needed Social Security and Medicare and need to improve both and add child care – because many corporations and the pittances they give workers don’t pay for retirement, medical care, or child care, because supply and demand leaves workers falling through the cracks until they’re unemployed, homeless and hopeless. And that’s why we need to end the filibuster and restore workers’ rights and the unions that protect them.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 2, 2022.

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[1] Slave trade.

[2] See History of slavery in the Muslim world,

[3] An African country reckons with its history of selling slaves.

[4] Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press 1979).

[5] Abolition of the slave trade and slavery in Britain.

[6] Bailey v. Alabama, 219 U.S. 219 (1911).

[7] See Explaining the erosion of private-sector unions (Economic Policy Institute 2020) for a description of the legal changes; and see Majorities of adults see decline of union membership as bad for the U.S. and working people (PEW, 2022) for American attitudes about unions.