I signed this letter.

September 8, 2016

I signed the letter below along with more than 200 of the top legal and economic experts in the country protesting against ratifying any treaty that contains the private dispute mechanism, called ISDS, that allows corporations to defeat major environment and worker protections of the countries signing the agreements. Here are U.S. Senator Elizabeth Warren’s remarks in support:

“Today’s letter from top legal experts makes clear: ISDS undermines the American judicial system and tilts the playing field further in favor of big multinational corporations…This provision empowers companies to challenge laws and regulations they don’t like, with friendly corporate lawyers instead of judges deciding their disputes. Congress should not approve a TPP agreement that includes ISDS.”

And here’s a link to the final letter I signed.
Steve


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


THE POWER OF MONEY: First in a Series on Money in Politics

July 5, 2016

This post is re-released to include a new report by the Roosevelt Institute. During the previous two months, I participated in the Demos Legal Convening at the University of Pennsylvania, and the Scholars Strategy Network meeting on Purchasing Power at the Soros and Ford Foundations. The meetings focused on reducing the impact of money in politics, which will be the subject of several of my next commentaries.

Money creates dependence on the narrow group of people who can fund campaigns.[1]

In turn, money affects elections. The best work I’ve seen is not yet public but confirms our intuitions – money increases the votes candidates get and affects how the elected vote. Scholars have even been able to trace which legislators switched votes on legislation.

The economic impact is huge. By non-enforcement of antitrust laws and providing regulatory breaks, political protection enables companies to take advantage of the public. Here, Albany politicians arranged to have themselves showered with gifts by creating a market payable in contributions by corporations seeking permission to build casinos. That’s also why the state ignored the evidence of harm casinos do. On the national level, political protection for favored corporations and industries has had enormous consequences.

The Roosevelt Institute estimates that the financial sector alone cost the public “between $40,000 and $70,000 for every man, woman, and child in the U.S., or between $105,000 and $184,000 for the typical American family”! No new taxes. Just regulatory bonanzas that take our money and put it in company pockets, because of the benefits our elected representatives do for them.[2]

Instead of facilitating productive activity, the financial sector now threatens prosperity, overcharges for brokerage services, ruins lives through predatory lending, misallocates talent to socially unproductive employment, re-orients corporate behavior “to short term speculation that costs jobs, wages, and productivity growth; and choos[es] poor investments that put people’s retirement incomes at risk. …”[3] It’s had a huge impact through private and public pensions, mortgage financing, credit derivatives, asset management services and predatory lending, imposing the resulting costs and financial instability on society and on the poor.[4]

Compare those figures with the costs of political campaigns. Reported expenses for the 2012 federal election cycle including both the presidential and congressional races exceeded $6 billion. But compare the $6 billion with the trillions that the financial sector alone has cost. We are talking about a return to investment of thousands of times, even when the cost of lobbying is added.[5] The costs of political campaigns are small change by comparison. Which is why investing in politics is such a good deal for those looking for big profits at public expense.

That’s why in an upcoming commentary, I will talk about public financing of political campaigns. If you want to spend your money to fill corporate deep pockets, that’s your business. But I’d rather get a lot more value for mine.

— This commentary was originally broadcast on WAMC Northeast Report, July 5, 2016.

[1] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).

[2] http://rooseveltinstitute.org/overcharged-high-cost-high-finance/ (page 3 of the downloaded report).

[3] Id.

[4] Id. at 4, 40-42. And see generally www.OpenSecrets.org.

[5] For studies of the return to lobbying without, however, including the cost of campaign finance, see Lee Drutman, Lobby more, pay less in taxes, http://sunlightfoundation.com/blog/2012/04/16/lobby-more-pay-less-in-taxes/ (note that their studies are examples, not totals); Steven Strauss, Here’s Everything You’ve Always Wanted To Know About Lobbying For Your Business, http://www.businessinsider.com/everything-you-always-wanted-to-know-about-lobbying-2011-11.


Suckers for Trump

May 31, 2016

Let me begin by reminding you of Trump’s claims,[1] and end with some questions.

“I’m totally pro-choice” he declared and then took it back: “I’m pro-life” and told MSNBC that “there has to be some form of punishment” for a woman who has an abortion, later modified that only the doctor should be responsible. Plus he supported Planned Parenthood, and defunding them.

Remember the poor woman in Providence whose house was taken under eminent domain? “Eminent domain is wonderful” he told Fox News, and within a month told another outlet, “I don’t like eminent domain.”

He told CNN “I’m an environmentalist,” but tweeted “Global warming is a total, and very expensive, hoax!”

He once “support[ed] the ban on assault weapons and … a slightly longer waiting period to purchase a gun.” but “I don’t support it anymore.” Now he says he’s “the strongest person running in favor of the Second Amendment.”

In 2000 he said “We must have universal health care” but his campaign website read “It is not enough to simply repeal this terrible legislation,” and says he’d substitute “free market principles” on health care.

On taxes, in 2015 he described his tax plan as “a big tax reduction, including for the upper income.” On May 5 he told CNBC “I am not necessarily a huge fan of” cutting taxes for billionaires.

It’s not clear who Trump likes as people. First he refused to denounce the Ku Klux Klan and other white nationalists supporting him. Under fire he reversed course but many white supremacists, including David Duke, continue to support Trump. He’s blown hot and cold on refugees: “on a humanitarian basis, he said, “you have to” take in Syrian refugees. But now he wouldn’t. “I love Hispanics!” he tweeted on Cinco de Mayo, pictured with a taco bowl. Except of course that he wants to build a wall and send them all back to Mexico.

Donald thinks military policy is a cinch, “It would take an hour and a half to learn everything there is to learn about missiles. … I think I know most of it anyway.” He waffles on whether he would trust the Russians or not. He liked NATO, the North Atlantic Treaty Organization, which unites Europe and the U.S. militarily. “I see NATO as a good thing” he said recently but six days later decided “NATO is obsolete.”

The Middle East befuddles him. He supported invading Iraq. and crowed that “It looks like a tremendous success” but four days after that said, “The war’s a mess.”

He supported fighting in Libya: “Qadhafi in Libya is killing thousands of people, nobody knows how bad it is, and we’re sitting around, we have soldiers, all over the Middle East, and we’re not bringing ‘em in to stop this horrible carnage. … We should go in, we should stop this guy, which would be very easy and very quick.” But he said later, “I never discussed that subject.… We would be so much better off if Qadhafi were in charge right now.”

What are we supposed to make of Trump’s contradictions and about-faces? Does the adjective he uses endlessly to describe Hillary fit Trump better? Does he know what he’s talking about? I’m more interested in how we decide what he’s for? He’s inviting people to buy their own dreams. Whatever you’re for, he wants you to think he is too. Selling people their own dreams is a great sales tactic. It’s natural to believe others think like us. But if we guess wrong, who wants to be Donald’s sucker?

— This commentary was broadcast on WAMC Northeast Report, May 31, 2016.

[1] Clips collected on http://www.politico.com/magazine/story/2016/05/donald-trump-2016-contradictions-213869;  Michael P. Lynch, Truth, “Politics and the Power of Contradiction,” New York Times, May 8, 2016, at SR2, available as Michael P. Lynch, Trump, Truth, and the Power of Contradiction, http://www.nytimes.com/2016/05/08/opinion/sunday/trump-truth-and-the-power-of-contradiction.html?_r=0; “A Trump Sampler: His Changing Views,” New York Times, May 8, 2016, on page SR2, available at http://www.nytimes.com/interactive/2016/05/08/sunday-review/a-trump-sampler-his-changing-views.html.


Bernie and Ralph

May 24, 2016

Let’s talk about Bernie Sanders and Ralph Nader. I have enormous respect for what both men have been trying to tell us. I also have enormous respect for Nader’s willingness to plow his earnings back into the effort to improve many aspects of life while he, Nader, lived on a shoestring.

Then came the 2000 election. Nader argued that there was no difference between the major parties so it didn’t matter which one won that election. On the economic issue he was close to right, although the 2008 meltdown should have made clear that there are important differences between Republicans and Democrats on handling the economy. On other issues, particularly the environment, and the War in Iraq, the parties were far apart. That election made an enormous difference.

And it almost killed Nader’s movement; it certainly killed his ability to be an effective advocate. The conversation after the 2000 election wasn’t about Nader’s message; it was about the damage Nader did.

Bernie has an important message, which he shares with people like Elizabeth Warren and Ralph Nader, that the American economy is organized to take advantage of the vulnerable and deliver its benefits to those who have much more than they need. But if Hillary wins the Democratic nomination, what happens to Bernie’s message will depend on how he treats Hillary. It will be important for his message that he works for her election – and that his supporters do. If he and they work for the ticket, then his message has staying power because it becomes a shared message, his people are welcome and they broaden their own power within the Party. But if they sit it out or vote for the other side, their only message is that they aren’t important, reliable or helpful. It will stir resentments that will block their appeal going forward.

Nurturing Bernie’s message requires looking beyond this election, making friends and alliances for future elections. The way to create a lasting movement is to build on good feelings and organize for challenging down ballot in future federal, state and local elections much like what conservatives did to the Republican Party. Winning the top spot is a defective balloon, useless without down ballot organization. Bernie’s people have a chance to push the whole party, not just the White House, to the left. That’s the big prize. It doesn’t mean Bernie lost if he can’t catch Hillary; it means he and his supporters can do something much more powerful and sustainable.

Sitting back, or communicating that it’s my way or the highway infuriates the public. Republicans are learning the costs of that strategy, and even if Donnie wins, he may have no coattails or ability to govern. One of the crucial features of a democratic culture is the ability to be a good sport. Moderates usually win in the general election because that’s where the public is, so compromise must join principle in a successful strategy. Movements build over time. The best way to limit a movement’s prospects is to look like a sore loser.

I hope that message gets across to Bernie and his supporters.

— This commentary was broadcast on WAMC Northeast Report, May 24, 2016.


Universalism vs. the What-About-Mes

May 10, 2016

This primary season has made plain Americans’ dissatisfaction with American politics – dissatisfaction because someone else seems to be getting all the goodies and concern. The right wing thinks the poor are the government’s favorites. The left wing sees its wages and taxes mostly benefitting the super wealthy. Both Sanders and Trump mined the political backlash from special interest politics. Trump’s apparent nomination increases the urgency for both parties to respond to this problem.

And for anyone who wants to argue that impoverished or minority Americans are being short changed, one runs a minefield of envy, and the “what-about-mes.” The same weighs down discussion of the advantages of international trade agreements. If we don’t all share, the biggest issue is me. Similarly, for too many people the environment never seems to be about themselves but someone else, people on islands, lowlands, the next generations, but not themselves. That makes all our problems tougher to deal with.

When he wanted to establish a program for the elderly and the injured, the genius of President Franklin Roosevelt was to make it seem universal. Social security insurance applied to all kinds of people and most kinds of jobs.[1] We pay into the system long before we know whether and how much we’ll need. Many get social security who would be excluded by any need based program. But that’s the point. There is no stigma to social security. FDR did it as an insurance program; most of us contribute and collect. Roosevelt wanted to make it simple – you did your social security business at the post office. And when some politicians wanted to tamper with it for ideological reasons, they found that social security was a third rail of politics. FDR had hit that nail on the head.

Now, however, simple, universal programs like medical insurance have become a political football, and the very possibility of the government pursuing the general welfare is under attack from the not-with-my-money crowd. But because it is under attack, because we cannot count on government even to pull us out of a recession that would involve spending tax dollars, no matter how good the investment, the very possibility of economic changes are much more threatening than they should be.

Investment in infrastructure should be an investment in the general welfare, full of benefits for everyone, putting people to work building it, making jobs and businesses easier to reach, and creating benefits for all of us, from clean water and more reliable utilities to better education and internet services. The best way to protect people from unemployment is to provide jobs that provide benefits for the public. Infrastructure can pay dividends, in jobs and services that make everyone better off, and that only government can build.

Unfortunately politicians prefer big showy projects, dramatic new bridges and buildings rather than maintenance, repair and cost effective options. They prefer projects targeted for their contributors, Or they prefer to get on their soapboxes and try to get us to tear down the very government that made this country a great one. The cost of political behavior that breeds distrust of American government is enormous. Good government, self-government was the signal contribution of America to the world and we are allowing our political infrastructure to crumble along with the water, utility, transportation and electrical infrastructure.

It’s not just who we tax; it’s also what we do. Government matters; it does things for the public that no one else will take care of. We need good government, fair government, government for all of us, but government – strong, effective government – and the confidence that comes from doing it right.

— This commentary was broadcast on WAMC Northeast Report, May 10, 2016.

[1] On the original exclusions, see Larry DeWitt, The Decision to Exclude Agricultural and Domestic Workers from the 1935 Social Security Act, Social Security Bulletin, Vol. 70, No. 4, 2010, https://www.ssa.gov/policy/docs/ssb/v70n4/v70n4p49.html, but he is less convincing regarding motivation. For summaries of current exemptions, see Intuit Inc. (U.S.) at https://turbotax.intuit.com/tax-tools/tax-tips/General-Tax-Tips/Who-Is-Exempt-from-Paying-Social-Security-Tax-/INF19965.html or http://www.investopedia.com/ask/answers/013015/who-exempt-paying-social-security-taxes.asp.


The Outdated Economics of Conservative Ideologues

April 26, 2016

Some of you may have been following Shankar Vedantam on NPR or the discoveries of Daniel Kahneman, the Nobel Prize winning psychologist on the Princeton faculty, and their demonstration of the irrational ways that people very naturally and ordinarily reach decisions. Indeed, for quite a long time it’s been apparent that rational decision making often demands too much of people. As Cornell’s Vicki Bogan said in a talk in Albany, the rational choice model of economics assumes that people:

  • Think like Albert Einstein
  • Can store as much memory as IBM’s Big Blue
  • Can exercise the will power of Mahatma Gandhi
  • … [and] make unbiased forecasts

Nobel Prizes have been awarded to psychologists and economists who have been studying human decision making, showing that people literally can’t do what conservative economic theory expects them to. The rational man doesn’t exist, and for that reason, markets often don’t protect us. For both businessmen and consumers, rational choice is often impossible; it’s just too hard. Sometimes things aren’t currently knowable. Sometimes they’re beyond the capacity of individuals, even if institutions can figure it out.

A trip to the grocery store helps make the point clear. Even though much of the information exists, I can’t know enough about all the ingredients of the goods I buy, and their impact on my body, and still take the time to do my work and have a life to live. I have to trust someone or something else. But consumer ignorance shapes what businessmen have to do to survive. Those who cater only to the most informed, cater to small markets and often go under.

One consequence is that the market doesn’t protect us. That’s why workers’ compensation was started many decades ago – workers couldn’t figure out the odds of injury and didn’t have the ability to protect themselves as cheaply and effectively as informed employers could. Government stepped in to move that burden of knowing and choosing from the employee to the employer.

Those are examples. The broader impact of what is now called behavioral economics is that the economic theory of market ideologues is thoroughly discredited nonsense. It doesn’t work. A couple of decades ago there was a big debate about the efficient market theory which claimed that the market had it right even though individuals could be wrong. But they couldn’t tell me whether the market had it right the day before or the day after the crash. In other words it was nonsense on stilts.

That’s one of the reasons the public, all of us, have to get out of the glare of the outdated economics coming from conservative ideologues. It’s one of the reasons why it has been so important that Elizabeth Warren and Bernie Sanders have moved the Democratic Party to the left. That shift also clears the way for Hilary Clinton to return to the roots of the modern Democratic Party in the Great Depression, in Roosevelt’s New Deal, in being a party with heart.

Hilary and Bernie both have a lot to offer, but just as big a key to progress will be the Senate and the House of Representatives, which have blocked Obama’s efforts to push this country toward better, more caring solutions at every turn.

— This commentary was broadcast on WAMC Northeast Report, April 26, 2016.


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