Postmortem

November 15, 2016

I feel like I’m in mourning. The presidency has been taken by a con man and we all deserve better – those he’s duped as well as the rest of us.

  • Trump was “elected” by an “electoral college” system designed in the 18th century to protect slaveowners by augmenting their votes with 3/5 of their slaves.
  • He was “elected” by a Court unwilling to protect the voting rights of all American citizens.
  • As in 2000, when Al Gore won the popular vote but George Bush became President, the 2016 popular vote went to Mrs. Clinton. President Bush proceeded to make colossal mistakes in foreign affairs for which this country will spend a century paying.
  • Trump was elected with the votes of people who had suffered financially over the past two decades – but they voted for the very people who refused to lift a finger to provide jobs, people who don’t believe government should do anything, including good and important things, and for whom blocking anything Obama wanted to do was more important than helping fellow Americans. With Republicans benefitting from that cynical and deceitful strategy they are back in control of Congress. Good luck to the coal miners, autoworkers, steelworkers and others – they’ll need it.
  • We will now have a dirty old man in the White House as a “role model” for the worst behavior toward women.
  • And his rhetoric threatens to take apart the signal achievement of America – our mutual respect across faith, national origins, class, race, and counting – an achievement central to the status and future of the very people who voted for hate.

I am worried, crestfallen and embarrassed. What is there to do?

First, I have become a supporter of Supreme Court term limits. Rehnquist spent 34 years at the Court, Stevens 35, Scalia 30 and Thomas has been there 25. Erwin Chemerinsky, widely respected dean at the University of California at Irvine School of Law wrote:

The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

That way the Court would not be dominated by political decisions made decades ago.

Second, I would not confirm any new justice until there is agreement to reverse the decision that allowed states to monkey with their election rules to disenfranchise voters, and until there is agreement to adopt one of the mathematical rules that precisely measure gerrymandering, the level of favoritism to either party – known as symmetry or wasted voters. Some will object that those decisions are for the justices. Nonsense – the appointments clause is the political check and those decisions put the justices’ prejudices ahead of self-government and assured Republican victories, roles no judge should be playing. Those decisions were partisan, self-serving and should be ruled unconstitutional.

Third, we need to get across to people that refusing to vote because there is someone else we like better is a very bad choice because it has very bad consequences. In a democracy, to live and work together we have to be willing to compromise. It’s part of the deal.

Finally, we need to organize. 2018 is two years away and Congress will be at stake again. True patriots don’t give up.

— This commentary was broadcast on WAMC Northeast Report, Nov. 15, 2016.


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


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).


It’s Government’s Job to Make Work Available

April 19, 2016

Bernie and Hilary argue about trade pacts. We know trade pacts cost some jobs and open up others. That’s not a satisfying trade-off if your skill is suddenly unmarketable and you’ve become unemployed or underemployed. An effective response is crucial.

But protecting specific jobs will ultimately hold America back, diminish our competitiveness, and damage our ability to develop in new directions. Government should not protect specific, unsustainable jobs or avoid trade pacts that promote economic progress, national security or other international objectives.

But – and it’s a very important but – government should make sure that we can all work to support ourselves and our families. That’s why Republican insistence on scaling back Obama’s stimulus package in 2009 and then blocking more investment in infrastructure was very much the wrong move. It shirked our responsibility to each other and made moving forward politically more difficult.

The way government can make jobs available is to hire people to do what we should be doing and building. Once people are working, business and investors will take advantage of the extra income flowing and build their businesses and inventory to satisfy the demand.

But businesses don’t invest in order to create demand. Individual businesses can’t assume their investments will change the economic picture significantly, certainly not enough to repay their investments. Individual businesses can’t assume that they will reap the benefits of having created more jobs – people spend their paychecks in many places only a fraction of which will come back to the company.

That’s just one of the reasons pouring more money into the hands of what Republicans like to call job-creators is worthless, like a Rube Goldberg invention in its totally confused complexity. Business invests to meet demand or to create a product they think will sell – they don’t invest just because they have money. And since in fact they have lots of money on hand, many have been engaging in various forms of financial manipulation, buying back stock, sending money abroad, anything but job-creating investment or investments here.

That means that both Bernie and Hilary are hitting the nail of economic doldrums for the many people who can’t find decent jobs right on the head. It’s a problem that needs government to work for us.

Putting people to work solves many problems at once. Putting people to work supplies the person-power to re-build, update and renovate infrastructure. Putting people to work, pushes the wage scale for the best of reasons – not just a legal minimum wage pegged to an arbitrary number, marketplace pressure for employees raises the payscale. Putting people to work improves the business outlook. And infrastructure improvements improves the feasibility of successful investment for everyone – not just the favored projects of a few but improved access for all of us means that people with a good idea will have the opportunity to get the resources they need and access to the customers they want.

Of course whether government can pay for doing the right thing depends on whether government can actually impose taxes on the people and companies who have money. Arguing about protecting the so-called job-creators bv reducing their taxes is actually a way of starving government so that those so-called job creators can squeeze workers who are uprotected because government can’t afford to do anything about it. A successful modern economy requires a government with the resources to play its part.

— This commentary was broadcast on WAMC Northeast Report, April 19, 2016.

 


People bear the cost for rulers’ misbehavior

March 29, 2016

In a still unpublished manuscript on the way conservative economics has failed us, my friend Eric Zuesse remarked, “The ‘Greek debt’ is really not a debt of the Greek people.” He goes on to identify the “institutional creditors  … Euro-banks … high risk kleptocrats, oligarchs and bankers who siphoned most of the euros into overseas Swiss accounts …. [and other foreign investments] devoid of any capacity to generate income to pay back the debt.”

Eric’s statement is profound, pointing to the ways that those in power play with our lives and then displace the responsibility to their innocent victims. While I’m sure that some will argue that elections gave the Greek people some complicity, Eric accurately points to the ability of those primarily responsible to displace the costs of their own misbehavior.

I think we can see that pattern all over modern public affairs. What responsibility did the refugees in Syria or Iraq have for the wars that took their lives, homes and livelihoods? What responsibility did unemployed Americans have for the depression that was engineered by banks too big to fail, banks which traded worthless securities in an enormous Ponzi scheme for which they have not been prosecuted? The Supreme Court has cleared the manufacturers of failed medical devices for rupturing in our bodies but why is it somehow the responsibility of the victims to absorb the injuries and the costs? This is a pattern – the rich and powerful do the damage and outsource the costs to the rest of us.

Terrorists take advantage of that. They attacked the World Trade Center and the Pentagon on 9/11. But the people of Afghanistan, Iraq and the Middle East have paid the price of our response, innocent men, women and children, polarizing regions and sweeping us into the worldwind. Our failure to calibrate the response had much wider repercussions.

The British, French, Germans and Spanish have suffered similar terrorist attacks, actually over many decades from many different groups, but they have managed to restrain their responses. England fought in the so-called “troubles” of Northern Ireland but finally learned that their response was devastating the wrong people and making the problem worse. The Spanish restrained their response to the Basques. All restrained their response to leftist terror. They responded with police work, ultimately capturing and trying many of the terrorists.

For many Americans anything but an all-out response seems unacceptable. Politicians attack restraint as weakness, not strength. And of course ordinary Americans pay the price. We pay it in the deficit, in taxes, in the lives of our loved ones in foreign wars, and in civil liberties at home. But those who benefit are immune. Major suppliers of paramilitary forces abroad like Blackwater and Halliburton get more contracts while they supply deniability to American leadership for their violations of human rights.

These are bad bargains. Will we have leadership capable of leading, capable of explaining to the American people and standing strong in the face of hotheads for whom an indiscriminate overreaction is the only so-called “manly” response. Will we have leadership capable of zeroing in on the perpetrators of economic collapse, mortgage failure, and malfunctioning products?

Isn’t it time to stop blaming the people for the misbehavior of the oligarchs? Or will the rulers, paraphrasing Thomas Hardy’s conclusion to Tess of the d’Urbervilles, end their sport with us?

— This commentary was broadcast on WAMC Northeast Report, March 29, 2016.


Jobs and the “job creator” fairy tale

December 22, 2015

At this season in which charity is high on our agenda, I’d like to address some economic issues. I recently spoke with you about what the oligarchs are doing to American democracy. This time I’d like to talk with you about is happening to our jobs and wages. Jobs have recovered slowly from the 2008 crash; wages have flatlined for a decade. Candidates should be talking about jobs and wages.

Some want to turn money over to what they call the “job creators” – fabulous, fairy tale language. When taxes were cut to the 1%, the great bulk of that money didn’t finance jobs, or even trickle down to the rest of us. The 1% used it for finance, to jack up asset prices, buy and sell companies, close factories and outsource jobs abroad, or build McMansions, everything but better lives for American workers, who put in long hours at multiple jobs, with little to show for it but worry about the future. Creating jobs by lowering taxes hasn’t worked for decades because we already did it decades ago; now it’s become a fairy tale told for the gullible. It’s amazing the demonstrable nonsense that people can convince themselves of.

Our society insists it’s everyone’s personal responsibility to find work. As a legal aid lawyer, I worked closely with unemployed, mostly African-American clients. I felt like I was watching them die. Losing a job left them feeling worthless; nothing was more deeply hurtful or more threatening. With little to tide them over, they lived where they could afford housing, far from jobs, without cars to get to interviews or available work, or any network of employed friends to point them to possible jobs. On-the-job training left them few transferable skills, and parents struggled to find affordable day care. The more they needed work, the harder it was to find a job.

We had a fellow do odd jobs, yard work, pick up bottles and cans for the deposit, after losing his last job for lack of transportation. A lawsuit for unrelated injuries got him enough to buy a car. Instantly he was working, steadily.

The stuff called tough love isn’t love but it is dumb. People without assets or work become vulnerable to doing anything just to stay alive. That affects all of us.

The unemployed cost us money, for unemployment insurance, because of the dislocation that unemployment generates, and for lots of police because we fear the jobless. They cost us money because of the decrease in property values, the poor prospects of their children and those who live in areas of high unemployment. We pay in the fear of going out at night or stepping on to the wrong street; and we lose the multi-generational workforce we want for our own programs and projects.

Any responsible business person would include all the costs to individuals and our communities in their balance sheet for deciding whether to support a job program. To evaluate the cost to each of us individually in taxes, compare it to the taxes we have to pay for not putting people to work, as well as the value of the work they could do.

The notion that all taxes are bad for us, is sloppy economics. Justice, fairness and safety are not trade-offs but different sides of the same coin. I’d put people to work rebuilding and improving the infrastructure and other needed projects. There are a lot of things we can do to boost the economy and provide jobs if we are not bamboozled by fairy tale language about what the princes would do for us if only they had even more money.

— This commentary was broadcast on WAMC Northeast Report, December 22, 2015.

 


Our Common Stake in Affirmative Action

October 15, 2013

The Court just heard argument in another affirmative action case. It is often put as if it is all about them and the rest of us are just losers as the result of any affirmative action for African-Americans. But do we have a stake in affirmative action, or whether African-Americans remain a permanent underclass? Read the rest of this entry »


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