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The corporate tax cut will never trickle down

June 18, 2018 – 9:23 am

The immediate benefits of the corporate tax cut have gone to stockholders and executives rather than workers. The long-term benefits will too.

Dropping the corporate tax rate from 35% to 21% was the centerpiece of the tax reform package Republicans passed (with no Democratic votes) and Trump signed late last year. They sold that cut with the argument that lower corporate taxes would stimulate investment: Rather than build that new factory in Indonesia or Vietnam, a corporation might site it in Iowa instead, creating new jobs and raising wages. So while it might look like the benefits would go entirely to wealthy shareholders, in the long run that money would flow to American workers. American households, Trump economic advisors claimed, would see their incomes go up by $4000 a year over the next 3-5 years.

For a few weeks, it looked like the trickle-down was happening: A number of companies responded to the tax cut by giving their workers a one-time $1000 bonus — small potatoes compared to what the companies themselves were set to rake in, but not bad if it represented a down payment on future wage increases.

But how long would it take those increases to show up? Well, not immediately, in spite of the well-publicized bonuses. And not in one quarter. CBS reported in April that the corporate windfall (financed by increasing the federal budget deficit) was mostly going into stock manipulations.

In the first quarter, corporate America committed $305 billion to cash takeovers and stock buybacks, more than double the $131 billion in pre-tax wage growth for both new and existing workers subject to income tax withholding, TrimTabs calculates.

Worse, the Bureau of Labor Statistics is reporting bad news for “production and nonsupervisory employees”.

From May 2017 to May 2018, real average hourly earnings decreased 0.1 percent

The Washington Post elaborates, saying that this category “accounts for about four-fifths of the privately employed workers in America”. It also provides this graph.

How long? But it terms of the tax cut, it’s still early days. Of course the process of building new factories and hiring new workers would take longer than just a few months. So when should we expect the corporate tax cut to trickle down? Two years? Five years? Ten?

What about never?In his Friday column, Paul Krugman explains why the tax-motivated new factories and jobs and higher wages aren’t coming, not immediately and probably not ever. He labels his argument as “wonkish”, meaning that ordinary people who aren’t economists may find it hard to follow. So let me interpret a little.

The vision of low corporate taxes creating new jobs with higher wages comes from the Industrial Era, the age of coal-powered textile mills and Henry Ford’s assembly lines. Business investment in those days was mostly big, heavy equipment that cost a lot of money and was meant to last for decades or even longer. (I live in an apartment in a converted textile mill. The mill was built in the 1820s.) Businesses were national (or more likely, local) in those days, so a company located in Akron or Dearborn paid taxes in Akron or Dearborn.

That’s not what the economy looks like any more.

Tax havens. The biggest corporations are multi-national, and they book their profits in whatever countries their accountants choose. One trick is to transfer a company’s intellectual property to a foreign subsidiary, and then pay massive royalties and licensing fees to that subsidiary.

The rights to Nike’s Swoosh trademark, Uber’s taxi-hailing app, Allergan’s Botox patents and Facebook’s social media technology have all resided in shell companies that listed as their headquarters Appleby offices in Bermuda and Grand Cayman, the records show.

When pieces of your product — an iPhone, say — are made all over the world, who’s to say what country the profit is made in? Your accountants say. And they all say the same things: You made your profits in a tax haven.

Indeed, a tiny handful of jurisdictions — mostly Bermuda, Ireland, Luxembourg and the Netherlands — now account for 63 percent of all profits that American multinational companies claim to earn overseas, according to an analysis by Gabriel Zucman, an assistant professor of economics at the University of California, Berkeley.

Think about it: When was the last time you bought something marked “Made in Luxembourg”? Multinationals don’t build factories and employ workers in low-tax countries, they just route their profits there.

Krugman looks at the profit-to-wage ratio of foreign firms and local firms in a variety of countries.

If places like Puerto Rico and Ireland were just massively more productive than the US or Germany — producing enormous profits with relatively low labor costs — that would apply to their local firms too. But it doesn’t. For local firms, the ratio of profits to wages stays pretty constant across the board. It’s only foreign firms that have managed to unlock the Irish productivity miracle — not with actual production that employs workers, but via accounting tricks that claim profits produced by workers in other countries.

In short, multinational corporations have benefited enormously from Ireland’s generous tax laws. Irish workers, not so much. And with time, the corporations get better and better at gaming the tax system.

So lower US corporate taxes may induce corporations to book more of their profits here, for what that’s worth. But that’s an accounting gimmick, not an actual change in economic activity.

But even with that illusion making the effect look bigger than it is, won’t lower taxes still motivate investment and create jobs? Why doesn’t that work? This is where Krugman gets wonkish.

What investment means now. In the Industrial Era, nothing was more solid than a factory. Henry Ford started building his massive River Rouge complex in Dearborn during World War I, and it’s still there. Once it made Model T’s; now it makes F-150 trucks. The US Steel complex in Gary is even older, going back to 1908. Firestone in Akron, Caterpillar in Peoria — the big Industrial Era companies were virtually synonymous with the towns where their factories were.

In the Industrial Era, corporate investment was long-haul investment. You bought land and erected massive buildings to house huge machines. You dug canals and built railroad spurs that came right up to the beginnings and ends of your production lines. The industrialists who made those investments were looking half a century into the future, or even longer.

But most corporate investment these days is far more ephemeral. Take Google, the second-most valuable company in the world. What does it make exactly? Where is its River Rouge or Gary Works? If it wants to create a new product, it may have to hire some extra designers and programmers. But what does it invest in? An office, some computers. The office could be rented, the computers will be obsolete in a few years. Ditto for Facebook. Amazon also needs some warehouses, and maybe some robots to move boxes around. In a few years the warehouses could be somewhere else and the robots will be replaced by better robots. It’s all short-term stuff.

Whenever a company makes an investment, it’s weighing its expected profits against two things: the cost of capital (for example, the interest rate it has to pay on the money it borrows) and the depreciation rate (how fast the investment becomes obsolete). In the Industrial Era, when a factory complex or a railroad might be around for half a century, depreciation was low. So the cost of capital really mattered. If interest rates dropped from 6% to 4%, all your calculations changed. Investments you’d been putting off suddenly made sense again.

But when the equipment you’re buying is going to be scrap in 3-5 years, the cost of capital doesn’t matter nearly so much. Cutting interest rates still motivates people to buy houses, because those are long-term investments. But it doesn’t motivate business investment much any more. Krugman looks at the huge interest rate spike of 1979-1982, when the Fed pushed rates up over 20%. Housing investment crashed. Business investment not so much.

If that was divergence was happening already in the early 80s, it’s even moreso now.

What’s that have to do with tax rates? Now comes the wonky part:

What does this have to do with taxes? One way to think about corporate taxes in a global economy is that they raise the effective cost of capital. Suppose global investors demand an after-tax rate of return r*. Then the pre-tax rate of return they’ll demand in your country – your cost of capital — is r*/(1-t), where t is the marginal tax rate on profits. So cutting the corporate tax rate reduces the effective cost of capital, which should encourage more investment.

Let’s work an example of that. Suppose global investors are looking for a 5% return on their investment after taxes. (That’s Krugman’s r*.) If the corporate tax rate is 35%, they’ll need to make a pre-tax return of 7.7%. (That’s 5%/(1 – .35).) So for every $1,000 you invest, you make $77, you pay 35% of your profit in taxes ($27), and you wind up with $50, or a 5% profit.

Now cut the tax rate to 21%. Now you only need to make 6.3% before taxes to wind up with 5% after taxes. For every $1,000 invested, you make $63, pay 21% in taxes ($13) and wind up with $50.

So in this example, the tax cut effectively reduces the cost of capital from 7.7% to 6.3%.

That would have been a big deal to Henry Ford or Andrew Carnegie. Jeff Bezos or Mark Zuckerberg prefer the lower rate, of course, but it doesn’t drive their decisions in the same way.

Hence Krugman’s conclusion: It’s not that cutting corporate taxes will have no effect on jobs or wages, but it’s going to work out to a huge loss of goverment revenue in exchange for a small number of jobs.

But the vision of a global market in which real capital moves a lot in response to tax rates is all wrong; most of what we see in response to tax rate differences is profit-shifting, not real investment. And there is no reason to believe that the kind of tax cut America just enacted will achieve much besides starving the government of revenue.

The end result. Krugman’s argument needs one more step, because he leaves one question unanswered: Why should you care if the government collects less tax revenue? OK, maybe the lost revenue flows mainly to rich shareholders and billionaire CEOs and only a few jobs are created. Maybe the overall effect on wages doesn’t amount to much. But if it’s something, isn’t that good? The taxman may bag a little less — or even a lot less — but why should American workers cry about that?

Over the last few decades, conservatives have done a good job of convincing many Americans that taxes just go down a rat hole and aren’t connected to the valued services government provides. (In states like Kansas and Louisiana, though, people are starting to see the relationship.) And for the moment, Republicans have stopped worrying about the budget deficits that they were so focused on during the Obama administration. Less revenue means bigger deficits, but, again, why should you care?

Because deficit phobia will be back someday. We are already looking at trillion-dollar deficits beginning in 2020, and that’s under the assumption that we aren’t in recession by then. (This economic cycle is already getting a little old; that’s why unemployment numbers are so low.) In any serious recession — and one always comes eventually — the deficit will top $2 trillion, which is much higher than the record Bush/Obama deficit of FY 2009.

There is only one pile of money big enough cover a shortfall like that: entitlements like Social Security and Medicare. (We could zero out the defense budget and still have a deficit.) When Republicans remember that they care about deficits, that’s where they’re going to look.

So American workers who cheer for the corporate tax cut are like Esau being grateful to Jacob for his porridge: In the long run, the tax cut they let the rich monopolize will cost them their birthright of Social Security and Medicare.

By weeklysift | Tagged | Comments (14)

Thoughts on Depression Sparked by Anthony Bourdain’s Suicide

June 11, 2018 – 10:36 am

I imagine a lot of people have fantasized about being Anthony Bourdain, the star of CNN’s Peabody-winning “Parts Unknown” series, in which he traveled the world eating exotic food and meeting the people who made it. That was probably the most enviable job on television.

Friday, CNN announced that he had committed suicide. He was 61, my age. So I’m having a Richard Cory moment.

Bourdain’s suicide, coming so soon after that of fashion designer Kate Spade, has sparked a lot of discussion about depression. (I’m not sure we really know that either was depressed at the time, but it’s a plausible assumption.) Here’s my contribution to that conversation.

No one close to me has committed suicide, but I have watched both parents and at least one close friend deal with depression. I’ve also skirted the borderlands of depression myself on occasion. In my view, the most insidious thing about it is that it first attacks the faculties that you will need to fight it off. (That’s why all the “snap out of it” advice never works. The command center that could have received and acted on that message has already fallen.) You may not even notice what’s happening until the depression has you encircled.

That’s why I think everyone needs to set alarms at the border, so that you notice the slide while you still have the resources to turn things around. In my case, I’ve flagged two thought patterns. Whenever either of them shows up, I’m in danger and need to implement high standards of mental hygiene:

  • I can’t lean on my friends because they aren’t really my friends. Secretly, it would give them satisfaction to know that I’m doing badly.
  • I can still imagine things that would make me happy, but feel like they’re not worth the bother. Whether or not I enjoy my life is really not that important.

Those are mine; you may have other typical borderland thoughts. Try to identify them and notice when they start showing up.

So what are “high standards of mental hygiene”? Obvious stuff, mostly: Eat right, sleep well, get exercise, drop unrewarding responsibilities that cause unnecessary stress, indulge any creativity or playfulness you happen to notice in yourself (even if it seems silly), spend time with people who love you (and trust that they really do), expose yourself to whatever kind of beauty moves you. If you know any children who aren’t your responsibility, they tend to make good companions: They are naturally playful, and it’s hard to believe that they are devious enough to fake caring about you.

None of that cures a depression after you’re in it. But if you’re not quite there yet, maybe you don’t have to go.

By weeklysift | Comments (12)

Who won the Masterpiece Cakeshop case?

June 11, 2018 – 9:52 am

Technically, the Supreme Court ruled in favor of the baker. But it didn’t endorse any of the larger points he raised. What, if anything, does this mean for future cases?

The Masterpiece Cakeshop case is the legal equivalent of the movie Solo: Touted as a blockbuster in the series of landmark cases that includes Obergfell and Hobby Lobby, it turned out to be a dud.

You’ve probably already heard the basics of the case: In 2012, before same-sex marriage was legal in their state, Charlie Craig and David Mullins were planning to get married in Massachusetts, and then have a wedding reception back home in Colorado. They went to Masterpiece Cakeshop to order a custom-designed wedding cake, but the owner, Jack Phillips, refused to discuss it with them. Attributing his position to his Christian faith, he said he couldn’t be involved in celebrating a same-sex marriage. Craig and Mullins sued under Colorado’s anti-discrimination law, and they won at every level. So Phillips appealed to the Supreme Court.

What everybody expected. The case was supposed to be a 5-4 decision, as all nearly all the same-sex marriage decisions have been. Four conservatives (Thomas, Alito, Roberts, and Gorsuch) would line up with Phillips and four liberals (Ginsburg, Sotomayor, Breyer, and Kagan) with Craig and Mullins, with Justice Kennedy casting the deciding vote, as he usually does.

Nobody was too sure what he would do. He has authored (badly, in my opinion) most of the landmark gay-rights decisions of recent years, but (as part of the 5-4 majority in Hobby Lobby) he also was also known to be sympathetic to the kinds of religious-liberty arguments Phillips was making.

However this case came out, though, we were all sure it would have sweeping consequences: Either the Court would affirm that gays and lesbians have to be treated like everyone else, or it would establish “sincere religious belief” as a permanent loophole in our discrimination laws. [1]That’s not what happened.

Instead, the Court decided 7-2 that the Colorado Civil Rights Commission hadn’t handled this particular case with proper respect for Phillips’ religious views, and so the Court threw out the decision against him. Essentially, we’re back to Square One: It’s as if Craig and Mullins had never filed their complaint.

Here’s how limited the decision is: If tomorrow another same-sex couple goes to Masterpiece Cakeshop asking for a wedding cake and Phillips turns them down, nobody knows what will happen next.

This is how that 7-2 breaks down:

Thomas. Justice Thomas went whole-heartedly for the baker’s argument: Phillips is an artist, and the government cannot command him to create a message he finds abhorrent. Quoting previous free-speech cases, he says:

Forcing Phillips to make custom wedding cakes for same-sex marriages re­quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” or to “affir[m] . . . a belief with which [he] disagrees.”

Gorsuch and Alito. Justices Gorsuch and Alito (with Gorsuch writing for both of them) believe that the Colorado Civil Rights Commission has itself discriminated against Phillips because of its hostility to his religious views. They see Phillips’ case as being equivalent to that of William Jack, who intentionally tried to create such a comparison.

[Jack] approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions.

… The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

… Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case.

So that’s three votes for the baker’s case on the merits. Two more votes and Phillips would get the kind of result he (and the Alliance for Defending Freedom, the Christian-religious-liberty organization arguing his case) had been hoping for: At least in Colorado, bakeries (and presumably florists and caterers and all kinds of other businesses) would be free to deny their services to same-sex couples.

Kagan and Breyer. But you may have noticed a problem in the Gorsuch-Alito reasoning. How could they say Phillips “would not sell the requested cakes to anyone”, when he happily makes wedding cakes for opposite-sex couples? That’s because in their reasoning, a gay wedding cake is a thing. Phillips also wouldn’t sell a “cake celebrating same-sex marriage” to Craig’s mother, who is straight, so he’s not just refusing to sell to gays.

Justices Kagan and Breyer (Kagan writing) found this ridiculous. There is no such thing as a gay wedding cake. The product is just a wedding cake, and the fact that the cake will find its way to either a same-sex or opposite-sex wedding reception does not make it a different product.

And that’s the difference between the Phillips case and the Jack case: The anti-gay message in the Jack case was on the cake. (One cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. Another Jack cake would have put a red X over an image of two groomsmen holding hands.) In the Phillips case the only problem was in the use of the cake and who was using it. Phillips might legally have refused to put overt pro-gay symbols or messages on the cake (say, a rainbow flag). But refusing to make any wedding cake, even one identical to one he would make for an opposite-sex couple, was discrimination.

However, Kagan and Breyer found that the Civil Rights Commission didn’t make that argument properly, and instead some of the commissioners made statements hostile to Phillips religion. This created the impression that the commissioners were responding to their personal beliefs rather than legal principles: They found Jack’s message offensive, but not the Craig-Mullin wedding cake. In short: The CRC could have justified the findings it made, but it didn’t, so its decision in this particular case should be thrown out.

Ginsburg and Sotomayor. Justices Ginsburg and Sotomayor (Ginsburg writing) spelled out in more detail the difference between the Jack and Phillips cases:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.

Ginsburg and Sotomayor scoff at Gorsuch’s notion that the product was a “cake celebrating same-sex marriage”.

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

The merits of the case matter more than any procedural errors the Commission may have made.

I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

The Colorado Court of Appeals, Ginsburg notes, “considered the case de novo“. (In other words: It started over, and considered the case on its merits rather than on the basis of what the Commission had done.)

What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

In a footnote, Ginsburg-Sotomayor also tear up Thomas’ free-speech argument: A message may be in Phillips’ mind, but it isn’t in the cake unless other people can see it there.

The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.

It comes down to Kennedy and Roberts. So three justices agree with the baker on the merits and four don’t. But two of the four also find procedural problems in the rulings against the baker. So it’s already clear that the baker will win the case: The judgment against him will be thrown out. The question for the remaining two justices — Kennedy and Roberts — to decide is whether the Court will create a precedent that similar cases can appeal to.

Roberts’ thinking is usually subtle and often hidden. He will, at times, rule in a way that technically upholds a precedent, while re-interpreting it in a way that will ultimately undo it in subsequent cases. (In a current case that I’ll discuss in the weekly summary, his decision upholding the constitutionality of the Affordable Care Act in 2012 is now the basis for a new case claiming it is unconstitutional. He does that kind of thing.)

Roberts is happiest when he is changing society in a conservative, pro-wealth, or pro-business direction, but doing it behind the scenes. He doesn’t want the Court to make the kind of waves that could result in a major political backlash. (So, for example, he will write a decision that celebrates the principles behind the Voting Rights Act, while gutting the provisions that enforce it.)

This case is not Roberts’ style. He doesn’t want to author a sweeping takedown of anti-discrimination laws, and Kennedy isn’t going to go for that anyway. Also, he knows that the wind is blowing against him here. More and more, society accepts gay rights. The kind of sweeping decision Thomas, Gorsuch, and Alito want won’t look good in five or ten years.

So on this case he will keep his powder dry, uphold his (mostly false) image as a moderate, and go with what Kennedy wants.

Kennedy wants this case to go away. The decisions leading up to the full legalization of same-sex marriage (in Obergfell) are his legacy. When he eventually dies, that’s what his obituary will be about. He doesn’t want that record tarnished, least of all by his own decision.

But Kennedy is an empathy-based judge rather than a principles-based judge. [2] In this case, he seems to empathize with both sides: Craig and Mullin just wanted to have the same kind of wedding reception anybody else might have. Phillips didn’t want to be forced to act against what he saw as his religious convictions.

So the deciding Kennedy-Roberts opinion lets the baker off the hook on the narrowest possible grounds, without giving future courts anything to work with in similar cases.

When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

So the baker wins. But Kennedy leaves the larger issues open.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [3]

I find myself sharing the concern Sarah Posner expressed in The Nation: “how assiduously Justice Kennedy labored to find government ‘hostility’ to Phillips’s religion”. If a judge searches the record hard enough, with hyper-sensitivity to a hostility that he has pre-decided must be there, won’t he always be able to find some evidence of anti-religious bias somewhere?

What will be the evidence of such supposed animus in the next case? A question from a judge at oral arguments? Deposition questions by government attorneys? That is the crucial open question from Masterpiece—not whether the next case will be more winnable for a gay couple without Masterpiece’s specific facts, but how hard opponents of LGBTQ rights will work to convince the courts that similar specific facts exist in that case, too.

What next? Neither side can take comfort in the numbers. Seven justices looks like a solid majority for the conservative side, but four of the seven are only citing procedural reasons for objecting to the Commission’s ruling, and not saying they should have ruled in the baker’s favor.

Similarly, six justices reaffirm that anti-discrimination laws can apply to gay couples, whose “dignity and worth” is not inferior to opposite-sex couples. But Roberts cannot be trusted. If he could have formed a conservative majority on the other side, he quite likely would have.

So here’s where I think we are: Roberts is stalling, with the hope of getting another conservative appointment out of Trump before the Court has to make a definitive ruling. If he gets that extra conservative justice, then the Court will rule decisively to gut anti-discrimination protections for gays and lesbians, using “sincere religious belief” as the loophole.

In the meantime, look for a series of cases like this one, decided on the narrowest possible terms, and usually in favor of the conservative side.

[1] Phillips’ defenders argue that discrimination against gays is special in some way, but it’s hard to see how. When inter-racial marriage was controversial, the arguments against it were also framed in religious terms. Slavery, segregation, discrimination against women — pretty much every kind of bigotry roots itself in religion when other supports start to fail. If “sincere religious belief” allows discrimination against Craig and Mullins, it’s hard to see how any discrimination law stands up.

BTW: Notice what I didn’t say there. I didn’t say that Christianity or any other religion is inherently bigoted. I’m saying that bigots will cloak themselves in religion, and will cherry-pick sacred texts to justify their bigotry. If courts let them get away with this dodge, anti-discrimination laws will be toothless.

[2] That is what has driven me nuts in his previous rulings. He consistently fails to enunciate principles that lower-court judges can apply, instead making what are essentially political arguments that one side or the other deserves to prevail. That is why same-sex marriage cases kept going to the Supreme Court. Kennedy’s opinions were murky, and lower-court judges disagreed about what they meant. Eventually each new case had to come back to Kennedy so that he could interpret himself.

[3] This kind of writing also drives social conservatives nuts. “Our society has come to the recognition …” What kind of legal principle is that?

Kennedy consistently acts the part of the stereotypic liberal-activist-judge who projects his own moral convictions onto the law. Ginsburg is much more liberal than Kennedy, but you’ll never find that kind of mushiness in her opinions. She defines terms, cites precedents, and enunciates principles that lower-court judges can apply with confidence.

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What is impeachment for?

June 4, 2018 – 9:07 am

During Obama’s presidency, Republican standards for impeachment were low and Democratic standards high. Now it’s the reverse. We need American standards that don’t change with the political winds.

Someday — maybe sooner, maybe later — Bob Mueller is going to issue his report on the Trump campaign’s relationship with Russia, whether Trump has been attempting to obstruct justice, and possibly other Trump-related scandals. When that happens, Congress and the American people will have to look at what has been found and decide what to do about it. Is it enough for an impeachment or not?

At that moment, partisans on both sides will adjust their standards to get the conclusion they want. Trumpists will put forward impossibly high standards for impeachment, and anti-Trumpists will drop their standards to match the facts available. Not admiring either of these approaches, I want to set out my general ideas about impeachment now, before we know what the evidence will say.

Previous impeachments. As background, let me start by confessing that I’m old enough to have watched two presidential impeachment processes: Nixon’s and Clinton’s. The two could not have been more different.

At the time of the Nixon impeachment hearings, the United States hadn’t impeached a president in a century. Leaders of both parties in Congress appreciated that they were wielding a fearful and awesome power. They felt the Eye of History watching them. So, while Democrats were in general the prosecutors and Republicans the defenders, both approached their roles with extreme scrupulousness. Both sides were determined to get to the truth of the matter rather than just to win.

The iconic question “What did the President know and when did he know it?” was asked by Republican Senator Howard Baker. The House Judiciary Committee’s decision to subpoena Nixon’s tapes of Oval Office conversations was overwhelmingly bipartisan (33-3). Of the five articles of impeachment considered by the committee, three were supported by some Republicans and three were opposed by some Democrats. In the end, Nixon resigned after a delegation of Republican leaders went to the White House to tell the President that they could no longer defend him.

By contrast, the Clinton impeachment was an entirely partisan exercise from beginning to end. Nixon’s special prosecutor (Leon Jaworski) had been a fellow Republican. But for Clinton, the first Republican special prosecutor hadn’t been rabid enough, so he was replaced with a more partisan one. The focus of the investigation kept shifting, eventually settling on Clinton’s sexual escapades. Even the obstruction of justice charge postulated a private conspiracy (inducing Monica Lewinsky to give false testimony in a civil lawsuit) rather than a misuse of presidential power. None of the 45 Democratic senators voted to convict on any charge.

During the Obama administration, Republicans would occasionally raise the idea of impeachment, but it was clear that their standards had declined even further since the Clinton era. Republican Congressman Kerry Bentivolio told a town hall meeting of impeachment-happy partisans that impeaching Obama would be “a dream come true”, but there was one tiny hurdle he didn’t know how to jump yet: “You’ve got to have evidence.”

Now, of course, Republican standards for impeachment are high again and Democratic standards have lowered. But what we need are American standards that we’re willing to apply to presidents of either party.

The Constitution only helps us up to a point. It lays down the basic process, but (as it so often does) leaves the details to the interpretation of later generations. Perhaps that openness is why the document has lasted this long.

I first formulated my ideas about impeachment during the Clinton process, and I will attempt to apply those theories to Trump, even though Clinton is a Democrat and Trump a Republican.

The bad-president problem. The Founders believed that any legitimate sovereignty had to come from the People, but they understood that the People would make mistakes. It was inevitable that sooner or later the United States would elect a bad president — a demagogue who was unwise, uninformed, and temperamentally unfit for the job.

It’s clear what they saw as the primary remedy for a bad president: Wait for his term to end and elect somebody else. (In the meantime, the other branches of government should use their checks and balances to minimize the harm he could do.) We may not have the same appreciation for the elect-somebody-else solution as the Founders, but you have to bear in mind that they were comparing the presidency to the monarchy of England. Alexander Hamilton wrote in Federalist #69:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.

If England had a bad king, the solution was either to revolt or wait for him to die. But in the US, you could circle a date an a calendar and plan for the bad president to be gone. The Founders saw that as a big improvement.

So what is impeachment for? Impeachment is in the Constitution for those rare cases where the country just can’t wait. You can see that reflected in the clause that establishes it.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What makes treason and bribery so special that the Constitution names them? Each points to a problem more serious than mere incompetence or wrongheadedness or lax morals or bad temper. Both describe situations where the power of the presidency has been removed from the People and might possibly be used against them. A treasonous president is loyal to a foreign power; a bribed one is loyal to some private interest. The power of the presidency hasn’t just been used unwisely, it has been suborned or usurped. That’s a situation that can’t be allowed to continue.

Treason and bribery should be models for “other high Crimes and Misdemeanors”. That phrase, I think, is intentionally vague, to give Congress the leeway to do what it thinks it needs to do. But treason and bribery should set the bar: A legitimate impeachment case needs to argue that the Republic is in danger. There must be some reason why waiting for the next election either won’t work or isn’t good enough.

Reasons to impeach. If you buy that general framework, then legitimate reasons to impeach fall into four categories:

  1. The president is not loyal to the People of the United States. Basically, treason or bribery. A third offense, which in the Nixon impeachment was called “abuse of power”, is similar if a bit more vague: Loyalty to self has eclipsed loyalty to the country. The power of the presidency is being used not for the common good, but to enrich the president, to reward the president’s friends, or to punish his or her enemies.
  2. The president’s actions threaten the integrity of the election process. One reason we might not be able to wait for the next election is that the next election has been compromised. This was the heart of the Nixon impeachment: If a president can harass and spy on political rivals with impunity, then the whole election process becomes untrustworthy. You can imagine extreme cases where the president is winning elections by stuffing the ballot box, as happens in many pseudo-democratic countries.
  3. The president’s actions prevent investigations of (1) or (2). Obstruction of justice can be an impeachable offense, but it should only be used if the underlying charge has some can’t-wait significance. Nixon’s attempt to obstruct the investigation of the Watergate burglary had clear implications for the integrity of the election process. But whether or not Clinton obstructed Paula Jones’ civil lawsuit was an issue that could have waited.
  4. Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver. If the Iran-Contra scandal had led to impeaching President Reagan, this would have been the justification.

A fifth condition is urgent in a similar way, but has its own constitutional process: A president who is insane or demented can be removed via the 25th Amendment, if the vice president and a majority of the cabinet believe he or she is unfit.

Reasons that aren’t good enough. Impeachment shouldn’t be seen as a do-over for the voters’ mistakes. No matter how many people change their minds, or how low the president’s popularity sinks, that by itself is not a reason to impeach.

Policy disagreements between the president and Congress aren’t impeachable, as long as the President is respecting Congress’ legitimate powers. Attempts to stretch presidential power into debatable areas — like Obama’s executive orders on immigration — are not impeachable if the president backs down when Congress passes new laws or the courts overturn the orders.

The president becoming an embarrassment to the country is not enough. This, I think, was the mistake at the heart of the Clinton impeachment: Many Americans were embarrassed to hear news reports about oral sex in the Oval Office. That might be a good reason to call for a president’s resignation, but not to impeach.

Loss of faith in the president’s judgment isn’t enough, unless it rises to 25th-amendment levels. If, say, a president were ready to start nuclear war for no reason, the vice president and the cabinet should step in. But if the president just demonstrates bad judgment within the ordinary human range, replacing him or her would be another form of election do-over.

Standards of proof. During the Clinton impeachment, my representative (Charlie Bass) was one of many Republicans who pledged that they would only vote for impeachment if the evidence were beyond reasonable doubt. (He lied, and voted to impeach anyway. It was certainly reasonable to believe that Clinton perjured himself or conspired in Lewinsky’s perjury. Depending on your opinion of Clinton’s character, that may even have been the more likely possibility. But by no stretch of the imagination was the case against Clinton proved beyond reasonable doubt.) I think they made that pledge because they knew that the charges against Clinton were legalistic rather than based on the kind of emergency concerns the Founders envisioned.

But is the criminal-trial standard — beyond reasonable doubt — really the appropriate one? What if members of Congress are only 90% convinced that the president is a traitor? Should they wait for the next election?

Clearly not.

Criminal conviction can take away the freedom we all value and view as our right. But political office, especially a high political office like the presidency, is an honor and a privilege rather than a right. Taking it away just reduces a president to the same level as the rest of us. So the standards of proof required shouldn’t be as high as in a criminal trial. (After a president is removed from office, a criminal indictment might follow. At that trial, the beyond-reasonable-doubt standard would apply. So it would not be unreasonable to remove a president from office via impeachment, and then fail to convict in the subsequent criminal trial. Both outcomes might be appropriate responses to the evidence.)

The House and Senate play different roles in an impeachment, and they should apply different standards. The House is like a grand jury; essentially, it is voting to indict. The Senate is the trial jury; it is deciding whether to convict. I think the House should turn the reasonable-doubt standard upside-down. Voting to impeach should mean two things:

  • The charges are serious enough that they can’t wait until the end of the president’s term, and Congress has no less drastic way to deal with them. If they are true, the president needs to be removed as soon as possible.
  • The evidence could lead reasonable people to believe that the charges are true.

The Senate is making the more serious decision. If the House impeaches, the trial in the Senate will be stressful for the country, but by itself the trial does no real harm. (The country survived the Clinton trial with little damage. The situation when Clinton’s term expired — peace, a budget surplus, low unemployment, low inflation — was arguably better than at any time since.) Improperly removing a duly elected president, though, would be a serious blow to our constitutional system.

The Senate has to weigh the risks on each side: Voting to acquit leaves a possibly dangerous president in office until the end of the term, and tells future presidents that Congress will tolerate the impeached behavior. Voting to convict might damage the presidency and devalue future elections. Which path into the future is better for the country and our system of government?

Application to Trump. It’s possible that Mueller might find the exact wrong-doing that the Constitution specifies: If Trump conspired with the Russian government to gain an advantage in the 2016 election, and if his subsequent favoritism to Russian interests stems from his political debt to Putin, that’s treason. If he has been making foreign-policy decisions based on foreign-government actions that benefit him financially (like the Chinese investment in the MNC Lido City project), that’s bribery. Those would be the slam-dunk cases.

Abuse of power accusations (like his alleged pressure on the postmaster general to raise rates on Amazon to strike back at Jeff Bezos for The Washington Post’s hostile coverage) haven’t gotten as much attention, but would also be serious if they could be proved — not just the fact of pressure, but also the intent. But I would want to see a pattern of such reprisals — like Nixon’s enemies list — rather than just one example.

The offense Mueller is most likely to find is obstruction of justice. The question I would have at that point is whether the obstruction succeeded. (Firing Comey, for example, may have been intended to derail the Russia investigation, but it obviously didn’t.) If Mueller’s conclusion is that Trump’s obstruction prevents us from knowing whether he was part of a treasonous conspiracy, then I would want to impeach him for that. But if Mueller did in fact get to the bottom of the Russia affair, then the impeachment decision should be based on the answer to that question.

One outcome, for example, could be that Trump played no part in the Russia conspiracy, but obstructed justice to cover up crimes committed by his sons or by son-in-law Jared Kushner. If that’s the case, I would indict those people immediately, and prosecute Trump for obstruction after his term ends. It’s a crime, but it’s over now, and waiting does not endanger the country.

I suspect there is considerable evidence that Trump is profiting off his presidency in ways that don’t quite rise to the level of bribery. For example, he could hardly be doing any more to promote Mar-a-Lago than he has been, including spending large quantities of public money there. (Trump’s trips to Mar-a-Lago have cost the taxpayers more than the entire Mueller investigation. “Probably several times over,” estimates the WaPo’s Philip Bump.) The Trump International Hotel in Washington profits extensively from foreigners attempting to curry the President’s favor. (The Trump Organization donated $151K in foreign-government profits to the Treasury, but has not explained how it came up with that number. I would be amazed if it were a fair accounting.) Michael Cohen has collected millions in what appear to be payments for access to the Trump administration, but we still don’t know if Trump conspired in that, or whether the payments bought any government favors.

However, Congress could crack down on Trump’s profiteering without resorting to impeachment. He (and future presidents) could be required to publish their tax returns. Congress could investigate the Trump Organization and do its own accounting of politically tainted profits, or insist that Trump divest (and let him decide whether he would rather resign). It could refuse to spend public funds on any businesses owned by the President. Conflict-of-interest rules that apply to every government official except the president could be extended.

Congress hasn’t done these things because Republicans don’t want to take any action against Trump. It’s crazy to imagine that impeachment is feasible as long as such common-sense moves haven’t been made. Impeachment is a break-glass-in-case-of-emergency last resort; if anything else could fix the problem, it should be tried first.

To be continued … Chances are, not all of the conclusions of the Mueller investigation will be clear-cut. There may be some evidence of collusion with Putin, but not definite proof. It may be impossible to establish whether Trump’s reluctance to sanction Russia was a quid-pro-quo or not. I’ve laid out my general principles on impeachment, but those kinds of judgment calls can’t be made without seeing the specific evidence.

When that evidence comes out, I can only hope that I and the Congress and Americans on both sides of the partisan divide will understand the gravity of the judgment to be made, and that we will all feel the Eye of History watching us.

By weeklysift | Tagged , | Comments (24)

It’s time to let Israel be a country

May 28, 2018 – 10:50 am

The assumptions behind the United States’ Israel policy are obsolete, and many were never realistic. It’s time to go back to Square One and rethink.

Since its founding seventy years ago, Israel has consistently been more of a symbol or a fantasy to Americans than a real place. I can’t pretend to grasp the full significance it has for American Jews, but for the rest of us Israel has meant the Holy Land, a way to make right the collective guilt we felt for doing so little to avert the Holocaust, the heroic Sabras of Leon Uris’ Exodus, a demonstration of the West’s superiority to the decaying Orient, a Cold War destination for talented Jews abandoning the Soviet Union, a David-and-Goliath story of one tiny country standing up to larger ones, and many other things that have been (at best) tangentially related to a real country of real people.

For Evangelical Christians, the founding of Israel started a prophetic clock ticking down to the End Times, when all the Jews who don’t convert will be sadly wiped out, but the rest of us will get to live in Jesus’ Millennial Kingdom. Socialists have idealized the kibbutzim. The alt-Right sees Israel simultaneously as the place they will someday deport American Jews to, and as a model for the ethno-religious state white Christians could make here and in Europe. For globalists, the peace we will someday broker among Israel, its indigenous Palestinians, and its Arab neighbors will prove the righteousness of American power in a unipolar world. For neo-cons, Israel represents a no-nonsense approach to the terrorist threat, unclouded by the hazy illusions of political correctness.

All these constructions are built on a foundation of stereotypes, both positive and negative, about Jews. They are God’s chosen people, the invisible and infinitely manipulative Elders of Zion, both the relatives and the accusers of Jesus, the fast talkers who can sell anything, the source of inexplicably many of the West’s foundational thinkers, or the bankers who always win because they have backed both sides. You can hear echoes of these ancient, quasi-supernatural Jewish powers whenever a conversation turns to Mossad or AIPAC or the Rothschilds or that nebulous collection of “Jews who control the media”. Ordinary notions of possibility and impossibility melt away; they’re Jews, who knows what they can do?

From the beginning, Israel has been both the beneficiary and the victim of the fantasies we project onto them. The benefits have been tangible: billions in American aid every year, American military technology, and the protection of both the American nuclear umbrella and the US veto in the UN Security Council. But our illusions have also been freighted with expectations: Israel should be better than other countries, and should be condemned and even punished when it isn’t.

During the 1948 war that established Israel as a country, Arabs terrified by both real and imagined Jewish atrocities fled the war zone, creating a refugee population that under international law has a right to return home. Since the 1967 war created the Occupied Territories, Israel has ruled a subject population that it treats badly.

But lots of countries are in violation of some international law or another, and lots have subject populations that they treat badly. (Some countries treat all their people badly.) Try being Shia in a Sunni country like Saudi Arabia, or Sunni in a Shia country like Iraq. Hindus and Muslims oppress each other in India and Pakistan. In Myanmar, the Buddhist majority is pushing Muslim Rohingya out of the country, even though they have nowhere to go. Americans, if we bother to inform ourselves about these situations at all, wring our hands helplessly. We don’t organize boycotts or insist that our church or university’s endowment divest holdings tainted by association.

In recent years, Israel’s internal politics have taken a disturbing rightward turn, with growing intolerance and disregard for abstract principles of justice. But so have Hungary’s and Poland’s and (let’s be honest) our own. What fault can you find in Netanyahu that isn’t also present in Trump?

Recent events have been hard to square with American illusions about Israel. Two weeks ago, the United States dedicated a new embassy in Jerusalem, abandoning a long-held bipartisan policy that such a move should wait for a peace treaty putting the status of Jerusalem on a firm international foundation. While this was happening, Palestinian protesters rushed the fence that keeps them trapped in Gaza, and Israeli snipers shot them down by the dozens.

Viewed through one lens, the shooting was entirely justified: The protesters — all hostile, some armed, all attempting to cross an international border — constituted an invading army, or at least an invading mob. Viewed through another, it was a gross overreaction: The Israelis had ample warning and held all the cards; surely they could have devised some less lethal method of crowd control without endangering their soldiers or citizens. Gazan lives, it seems, don’t matter.

For decades, the United States has tried to restrain Israel’s more extreme tendencies. We have discouraged building settlements on disputed territory, pushed for cease-fires, and sometimes even brokered treaties like the Camp David Accords. We have styled ourselves as the holders of the vision of peace, and so we have consistently urged Israel not to do things that can never be undone.

We don’t do that any more. UN Ambassador Nikki Haley was full-throated supporter of the Israeli snipers. “No country in this chamber would act with more restraint than Israel has,” she told the Security Council. If the Trump administration believes this, it is chilling. It suggests that’s Trump’s wall might someday be manned by snipers indiscriminately gunning down Mexicans because some of them might be MS-13 gangsters.

Increasingly, it is clear that there isn’t going to be a negotiated peace. Gaza is the new model of resolution: Israel will dictate terms. It will set boundaries for zones of Palestinian autonomy, and will decide what that autonomy consists of. Like the reservations the US created for Native Americans, the Palestinian zones will not be economically viable, at least not for the number of people assigned to live there. The best land and the water rights will be reserved for Israeli settlements. As with the Native American reservations, non-viability will be a feature. America hoped its Indians would eventually assimilate into second-class citizenship in white society; Israel hopes that Palestinians will self-deport to Jordan or Egypt or anywhere Israel doesn’t have to deal with them.

All of these developments should raise a question: What is the US role going forward? For decades, Americans have believed that our aid gave us leverage, which we could use to nudge all parties towards a peace agreement. But if we’re not nudging and there isn’t going to be an agreement, what is our aid for? What are we buying? What are we supporting? Why?

I am not proposing answers to those questions. But I am urging all Americans, whether you think of yourself as pro-Israel or anti-Israel or neutral, to rethink your view from first principles. What if we all stopped thinking about Israel in mythic or symbolic terms and instead just thought of it as a country like any other country? In some ways it is like us and in some ways not. In some ways we share its interests and in other ways we don’t. It does things that deserve our support and things that deserve our condemnation.

Like any other country.

When we let go of all the fears and fantasies that we have projected onto Israel, what is left? How should we respond to the reality of Israel as country like any other country?

By weeklysift | Tagged | Comments (53)

Outlines of a Reading Project on Class

May 28, 2018 – 9:06 am

Lately I’ve been reading a lot about the class divide in America — a topic that has been on my mind for several years, but has acquired a new significance in the Trump Era. Probably all this research will eventually result in a long article where I try to find some deeper insight, but in the meantime I’ll just summarize what I’ve been reading, in case you want to read along with me.

A great place to start is “The 9.9% is the New American Aristocracy” by Matthew Stewart in The Atlantic. Wealth, as many authors have shown, is increasingly accumulating in the top tenth of a percent. But beneath that layer of plutocrats is the rest of the top 10%, which mostly consists of educated professionals with a decent amount of economic security, who have pleasant homes in safe neighborhoods with good schools, read magazines like The Atlantic, and do physical labor only to the extent they want to. (I wasn’t born into this class, but that’s where I am now. I suspect most — but not all — of my readers are 9.9-percenters also.)

Collectively, we control more than half of American’s wealth, a percentage that has held fairly steady for decades. The gains of the top .1% mostly haven’t come from us, but at the expense of the bottom 90%. Stewart says:

By any sociological or financial measure, it’s good to be us. It’s even better to be our kids. In our health, family life, friendship networks, and level of education, not to mention money, we are crushing the competition below. But we do have a blind spot, and it is located right in the center of the mirror: We seem to be the last to notice just how rapidly we’ve morphed, or what we’ve morphed into.

What we’ve morphed into is a hereditary aristocracy; it’s increasingly hard for people not born into this class to join. On its surface, the system looks like a meritocracy, but we’ve gamed it. Winning the race requires the kind of preparation that only aristocratic kids are in a position to get. Like Jane Austen’s aristocrats, we have a strong tendency to intermarry, closing off that point of entry. We also feel very little guilt about leaving the classes below us in the dust: In the Game of Life, we tell ourselves, they just didn’t measure up. (Chris Hayes made a similar point several years ago in The Twilight of the Elites.)

The middle-working class — let’s leave the boundaries of that vague for now — consists of people who didn’t make it into the aristocracy, but have what Joan Williams in her book White Working Class calls “settled lives”: They aren’t college educated, but they are consistently employed and have stable homes with (mostly) solid families. They typically have jobs rather than careers, and they get their identities from family and community (often a church community) rather than from their professions. (Even if you have lucrative lifelong employment as a plumber or electrician, it’s what you do, not who you are.)

Members of this class take a lot of pride in the disagreeable things they’ve had to do to stay out of poverty — the long hours of unrewarding work, the desires they’ve had to suppress, the dreams they’ve had to defer, etc. — and they picture poor people as lacking the same moral stamina. (That’s why it aggravates them when government programs let the undeserving poor enjoy some of the same rewards they take pride in earning. Liberals, they feel, are trying to erode the significance of their moral achievement.) They have different cultural values than the aristocrats and are annoyed by our belief that they tried to be us, but just failed. They don’t actually want to be us, but they envy our generational stability, because (as the kinds of jobs that underwrite settled lives go away) they see no guarantees that their children won’t be poor.

They also resent the hell out of us, much more than they resent the .1%. The plutocrats are like distant kings, but working-class folks have to deal with aristocrats every day. We’re their bosses and the doctors who talk down to them. We’re their hard-to-please clients, the consultants who come in to tell them that they’re doing it all wrong, and the experts who observe and interview them in hopes of replacing them with machines. We’re the talking heads on TV who use big words and insist that they’d agree with us if only they had read enough books to know what they’re talking about.

Trump made it to the White House by playing on that resentment. (Historically, the 9.9% has been split between the parties or even leaned Republican. But many never-Trump conservatives are 9.9 percenters, and congressional seats in professional-class suburbs are viewed by Democrats as pick-up opportunities.) Since taking office he has done virtually nothing to help the working class — not even the white working class. But he remains popular among them because he gives voice to their resentment of the 9.9%.

Williams’ point is that we aristocrats should try harder to understand and show respect to the working class, which is true as far as it goes. But The Washington Post’s Paul Waldman points out a disagreeable truth: Professional-class liberals — or even just reality-based anti-Trump conservatives — are kidding themselves if they think respect is some kind of “magic key that Democrats can use to unlock the hearts of white people who vote Republican”. No matter how respectful a candidate or a set of policies might be, that message will never get through the filter of “an entire industry that’s devoted to convincing white people that liberal elitists look down on them.”

If you doubt this, I’d encourage you to tune in to Fox News or listen to conservative talk radio for a week. When you do, you’ll find that again and again you’re told stories of some excess of campus political correctness, some obscure liberal professor who said something offensive, some liberal celebrity who said something crude about rednecks or some Democratic politician who displayed a lack of knowledge of a conservative cultural marker. The message is pounded home over and over: They hate you and everything you stand for.

Essentially, conservative media is like the community gossip who constantly starts conversations with “Did you hear what so-and-so just said about you?” No matter how respectful the bulk of us may eventually learn to be, somebody somewhere is always going to be dissing working-class whites, and Fox News will make sure that they hear about it.

Even when that disrespect is absent, it is easily manufactured. Waldman points out how out-of-context quotes were used to skewer Barack Obama and Hillary Clinton. Everyone knows that Clinton thinks working-class Trump voters are “deplorable”, and Obama believes they are “clinging to guns and religion”.

Finally, the consequences of this class divide are discussed in Ganesh Sitaraman’s book The Crisis of the Middle-Class Constitution. Unlike previous republics, the United States didn’t write the class struggle into its constitution: Rome, for example, balanced an aristocratic Senate against the veto-wielding Tribunes of the People. Britain separated the House of Commons from the House of Lords. America didn’t do anything like that.

Instead, the Founders counted on relative equality of wealth and the presence of a large middle class to maintain a balanced society. Those are the conditions our system of government is designed for, and at various key points in American history (the homestead era, the Progressive Era, the New Deal) the government made deliberate choices that preserved the middle class and prevented either plutocratic domination or a revolution of the dispossessed.

Now we’re in an era of increased concentration of wealth and power by the .1%. Now more than ever, if we’re going to preserve our system of government, we need the 9.9% and the working class to band together against the domination of the super-rich. But how is that going to happen?

By weeklysift | Tagged | Comments (16)

Speaking in Code: Two phrases that no longer mean what they used to

May 7, 2018 – 10:16 am

To liberals, a lot of what conservatives say and do looks like hypocrisy. And some of it really is, like the pro-life congressman who urged his mistress to get an abortion, or the long list of people who denounced Bill Clinton’s illicit affairs while they were carrying on some of their own. That’s hypocrisy: piously announcing strict rules for other people while living by a looser set yourself.

But some things that look like hypocrisy to liberals are actually something else: Conservatives have repurposed phrases that used to mean one thing to express some other idea entirely. Both the speaker and his target audience know exactly what he means, and there’s no inconsistency between that meaning and his actions. It’s just that liberals never got the memo.

So let me catch you up on what two phrases you’ve known and loved in the past mean now when conservatives say them.

Religious liberty or religious freedom means special rights for Christians. Thursday, the Republican National Committee asked everyone on Twitter to thank Donald Trump “for his commitment to religious freedom”. One commenter expressed skepticism about Trump’s commitment to religious freedom by adding “unless you happen to be Muslim”.

I’m sure many people thought that commenter had launched a devastating barb, exposing a blatant example of Republican hypocrisy. Because we all know what religious freedom used to mean: Even if your religious community is small and powerless, no one can stop you from meeting. The government can’t tax you to support the views of other sects, or use the public schools to indoctrinate your children in the majority faith. In any legal proceeding, your religion does not count against you.

In the old sense, there is no more powerful opponent of religious freedom in America than Donald Trump, who ran on the promise to keep Muslims out of the United States, and who has signed numerous executive orders trying to work around the clear unconstitutionality of that idea.

But in conservative circles, that’s not what religious freedom means any more. Here’s what it means now: People who root their misbehavior in the teachings (or even just the common prejudices) of popular Christian sects can get away with things that no one else can.

Today, religious freedom means that you can violate anti-discrimination laws that protect LGBT people, if you claim that your bias against them is the historical bias of your popular Christian sect. (You can’t exempt yourself from racial discrimination laws, though, because Christian sects that believe in racial discrimination aren’t popular any more.) You can refuse to do your job as a pharmacist, if the drugs your customer wants are implicated in behaviors your popular Christian sect disapproves of. You can limit the healthcare choices of your employees, if those choices would be sins according to your popular Christian beliefs.

None of these rights can be claimed by non-Christians, or even by members of unpopular Christian sects, except by happy accident. (Zoroastrians might be able to claim special rights in situations where their teachings happen to agree with Baptists or Catholics.) Imagine, if you can, pacifist Quakers trying to claim the same distance from war that Baptists want from abortion — not simply that they not have to do the killing themselves, but that they be kept clear from any connection to it. Imagine Hindus insisting that the FDA not inspect beef, because their tax dollars should not contribute to the killing of cattle. Such “rights” are ridiculous; they would be laughed at if anyone dared to claim them.

Special rights properly belong only to members of popular Christian sects. Everyone knows this. Some are even open about it, like Bryan Fischer of the American Family Association, who offers this interpretation of the First Amendment:

By “religion,” the founders were thinking of Christianity. So the purpose was to protect the free exercise of the Christian faith. It wasn’t about protecting anything else.

The rule of law means getting undocumented Hispanics out of the country by any means necessary. Tuesday, Vice President Pence was the headliner for a rally in Tempe, Arizona organized by the pro-Trump group America First Policies. As headliners often do at political events, he gave a shout-out to some of the local politicians in the audience, including former Maricopa County Sheriff Joe Arpaio. Arpaio probably would be in jail now if Trump hadn’t pardoned him, but instead he is running for the Senate.

A great friend of this president, a tireless champion of strong borders and the rule of law — Sheriff Joe Arpaio, I’m honored to have you here.

For centuries, the rule of law meant that laws applied equally to everyone, and were not subject to the whims of whoever happened to be in power. It was related to the longer phrase a government of laws and not of men.

Arpaio’s career as sheriff is the paradigm for out-of-control law enforcement that is the exact opposite of the rule of law in its traditional sense. His legitimate job as county sheriff had nothing to do with border enforcement, but he squandered his office’s resources on that issue, harassing countless law-abiding Hispanic-American citizens (as well as Arpaio’s political enemies) along the way, and compiling a dismal record dealing with the crimes that were actually within his jurisdiction. His shoddy care for and outright cruelty towards his prisoners showed a similar lack of respect for his duties under the law, and resulted in the county paying tens of millions of dollars in settlements to mistreated prisoners (or their surviving family members). For details, see “The Long, Lawless Ride of Sheriff Joe Arpaio” and several other articles I collected after Trump pardoned Arpaio.

Arpaio is a “champion of the rule of law” only in one sense: He wants undocumented Hispanics out of the country.

Attorney General Jeff Sessions is a defender of the rule of law in a similar sense: His attempts to punish sanctuary cities may themselves be illegal, but they serve the goal of pushing undocumented Hispanics out of the country. Much of what ICE is doing now is also of questionable legality, but its actions are directed against undocumented Hispanics, so it is defending the rule of law.

The Newspeak problem. The problem with assigning new meanings to words and phrases is that the old meanings might still be important. (I’d hate to be a high school history teacher trying to cover “The Gay 90s“.) If the neologism takes, it may drive out the original meaning, making the issues related to that concept difficult or even impossible to discuss.

To a large extent, that is the point of Newspeak: to win arguments by making the opposing position inexpressible, or to avoid dissent entirely by keeping possible objections out of mind.

The rule of law is still being fought over, and rightfully so. In this era, when Trump is trying to claim the Justice Department as his own rather than the country’s, and is pressuring law enforcement officials to stop investigating him and start investigating his political enemies (or investigate again if they didn’t find anything the first time), it’s very important to have a term that captures the original meaning of the rule of law. We desperately need judges and prosecutors and law-enforcement officers who are loyal to the laws of the United States rather than to the President. Anything that makes that issue harder to talk about is a threat to American democracy.

But sadly, the old meaning of religious freedom and religious liberty is all but lost in popular discourse. There is still some small overlap, when Christians are genuinely persecuted in other countries, but many Americans, particularly conservatives, are just confused when atheists don’t want their children pressured to pray in public settings, or Muslims are denied the right to build a mosque somewhere. They don’t see how religious freedom can even apply to someone who isn’t Christian. To them, a religious freedom issue is whether the Christian clerk who refuses to process same-sex marriage licenses gets to keep her job, not whether a Muslim woman can wear her hijab to the airport without fear of being profiled as a terrorist.

To fight back, I think we must constantly retranslate the new usages back into older terms, and refuse to recognize them as legitimate. The Masterpiece Cakeshop case, for example, has nothing whatsoever to do with religious freedom; it’s about Christians claiming the special right to break discrimination laws. Denying federal funds to sanctuary cities does not defend the rule of law, it tears down the rule of law.

You know what would have defended the rule of law? Letting Joe Arpaio go to jail for his crimes rather than pardoning him.

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Change Can Happen Faster Than You Think

April 30, 2018 – 9:51 am

Uprising can be a craft.

Two weeks ago, I drew your attention to a fairly depressing book, How Democracies Die by Steven Levitsky and Daniel Ziblatt. This week I want to balance that with a more hopeful book, This is an Uprising by Mark and Paul Engler.

From the title you might think it’s a manifesto, but actually it’s a study of how nonviolent action works, and how the thinking of nonviolent activists has developed over the last century or so. Along the way, it makes a convincing parallel argument: Nonviolence does work; sometimes it works on a scale and at a speed that its practitioners never envisioned; and it could work even better if more people understood the mechanics of it.

By the time you finish the book, you’ll probably know a lot more than you did about Gandhi, Martin Luther King, the resistance to Milosevic in Serbia, the Arab Spring, Occupy Wall Street, the campaign for same-sex marriage, how ACT UP provoked action on the AIDS epidemic, and several other movements. You’ll see them warts and all: the doubts and uncertainties of the leaders, the key strategic decisions, the strokes of good and bad luck, and the disappointments as well as the achievements.

Nonviolence is an effective strategy, not just a bid for moral superiority. Each chapter makes a point and illustrates it with the story of a character or a movement. The introduction (Martin Luther King’s Birmingham campaign) and first chapter (Gene Sharp, the man who made nonviolent studies academically respectable), focus on a very basic precondition for understanding nonviolence: You have to grasp that it is a strategic choice, and that, like war, it has tactics that can be learned.

That may seem obvious once you say it out loud, but a lot of pre-Sharp discussion of nonviolent action implicitly assumed otherwise: Nonviolence was often equated with pacifism and framed as a fundamentally moral choice, a sacrifice of practicality to idealism. Its effectiveness was left to God, who presumably would eventually help causes that were deserving enough. Successful nonviolent movements were (and often still are) described as “spontaneous” and regarded as inexplicable, as God’s actions often are. (The Englers don’t use this example, but pre-Civil-War abolitionism was caught in this dilemma, seeing few options other than the violence of John Brown or high-minded attempts to change the hearts of individual slaveowners.)

Sharp documented how unarmed uprisings could produce remarkable and sometimes counterintuitive results. Whereas violent rebellions play to the strengths of dictatorships — which are deft at suppressing armed attacks and using security challenges to justify the creation of a police state — nonviolent action often catches these regimes off guard. Through what Sharp calls “political jiu-jitsu,” social movements can turn repression into a weakness for those in power. Violent crackdowns against unarmed protests end up exposing the brutality of a ruling force, undermining its legitimacy, and, in many cases, creating wider public unwillingness to cooperate with its mandates.

King’s success in Birmingham did not just happen. It was a well-thought-out campaign that created an ever-escalating public crisis. The city’s lack of any answer other than violent repression, and the demonstrators’ willingness to suffer that violence, created a national narrative that led not just to (fairly small) concessions from Birmingham’s business community, but to a sea change in the nation’s willingness to accept Jim Crow. Congress soon passed the Civil Rights Act and the Voting Rights Act.

Structure and Movement. The second chapter discusses two competing views of how nonviolent action can create positive change. One school (associated with Saul Alinsky) focuses on long-term community organizing that builds power step-by-step. (A typical Alinsky slogan is “Organized people can beat organized money.”) The canonical example is the neighborhood group that comes together to demand a stop sign at a dangerous corner, and then (having achieved that victory), looks for the next improvement it can win for its members. A labor union is another classically Alinskyite organization.

The second school (the Englers use Frances Fox Piven as a key theorist) focuses on mass movements: big demonstrations made up of people who may or may not have a deep understanding of the issues they are protesting, and who may or may not be committed for the long term. The important thing is that a lot of people show up, not that they have a long-term plan.

The book was published in 2016, so it could not use the Women’s March the day after Trump’s inauguration as an example, but it would have fit. People marched for a lot of different reasons, and shared more vaguely defined hopes and fears rather than a specific set of demands. But they showed up by the millions.

The two styles of action appeal to different kinds of activists, and at times can seem like competitors or even enemies. Community organizers sometimes resent the big movement activists who come to town, get a lot of attention, and then leave, taking the TV cameras with them even though the underlying problems remain. Mass-movement people, conversely, can see the community organizers — with their stop signs and other incremental demands — as lacking vision. They are so concerned about preserving the marginal gains of their organizations that they aren’t willing to reach for revolutionary change.

Working together. But what if the two types of activists saw each other as complements rather than competitors? This notion is exemplified (in the third chapter) by the Otpor — Serbian for “resistance” — movement that ousted Serbian dictator Slobodan Milosevic.

Otpor actually represented a third wave of mass protests: The first had failed in 1991-1992, and the second in 1996.

“The school of organizing I came from was the student protests,” says [Otpor organizer Ivan] Marovic. “This organizing school was totally impulsive. It put no emphasis on establishing connections between people. It was about getting the greatest number of people and bringing them out on the street.

“We could draw out 10,000, sometimes 20,000 people, just from the university,” he explains. “The problem with this way of organizing is that it couldn’t last long, and we couldn’t take it outside our familiar terrain” — namely the prominent college towns.

Conversely, the opposition political parties had long-term members and enduring structure, but “couldn’t reach people who weren’t already connected to their networks. They couldn’t bring in people from the outside like we could with our protests.”

Otpor’s answer was to create not a hierarchical structure, but an organizational culture that made it “well organized but decentralized”. (Compare to Wikipedia. The strength of Wikipedia is in its easily grasped goals and methods, which allow tens of thousands of volunteers to contribute without an extensive management structure.)

The founders had intentionally created a sort of DNA that was replicated as Otpor chapters spread. … They had a clear strategy, a brand, and a vision of what they wanted to accomplish. They had a distinct set of tactics that people could pick up and use, as well as well-defined boundaries within which local teams expressed their independence.

Through humorous stunts, Otpor drew attention to just how widespread discontent was. Then came big demonstrations scattered around the country. Otpor graffiti was so simple that Milosevic didn’t even have to be named. (“It’s spreading.” “It’s time.” “He’s finished.”) Its leaders did not propose to take over the country themselves, and the movement did not stand for a governing philosophy. The purpose was simply to oust Milosevic. The plan was simple:

In short, activists would compel the regime to call elections; they would create massive turnout around a united opposition candidate; they would join other nongovernmental organizations in carefully monitoring election results so they could document their victory; and they would use mass noncompliance — leading up to a general strike — if and when Milosevic refused to step down.

It couldn’t have worked without both mass demonstrations and organized opposition parties. But the mass movement was already going by the time the parties needed to play their part. Under mass pressure and against their usual patterns, they got in line by compromising on a single challenger, and events played out as intended.

Change inside democracies. Bringing down an already unpopular dictator is one thing, but changing the direction of a democracy is something else entirely. That’s why the fourth chapter centers on the United States’ amazingly fast turnaround on gay rights, and particularly on same-sex marriage. From 1996, when the Senate passed the Defense of Marriage Act 85-14, to 2015, when the Supreme Court legalized same-sex marriage nationwide with the support of a large (and growing) majority of the public, was not even 20 years. (In 2012 I thought I was being bold predicting that “Everybody will support same-sex marriage by 2030”. I now think that was pessimistic.)

How did that happen? Not the way we were taught in Civics class.

Rather than being based on calculating realism — a shrewd assessment of what was attainable in the current political climate — the drive for marriage equality drew on a transformational vision. It was grounded in the idea that if social movements could win the battle over public opinion, the courts and the legislators would ultimately fall in line.

Changing public opinion would seem to suggest changing minds one-by-one. But that’s not exactly what happened either. And that’s the lesson of the fourth chapter: Society is neither a monolith nor a cloud of disconnected individuals. Using an architectural metaphor, the Englers say that the social order is held up by institutional pillars. Likewise, individual identities are shaped by the institutions those individuals identify with.

The battle for marriage equality was not fought mind-by-mind so much as institution-by-institution: In the media, first gay characters became accepted, and then it became safe for gay celebrities to come out. In religion, no church wanted to hold down the liberal flank of the anti-gay coalition. Unitarians accepted same-sex unions and gay clergy, then Episcopalians and Congregationalists, then Presbyterians and Lutherans. The battle was fought in associations of psychologists and therapists, professional organizations of doctors and lawyers, among educators and adoption professionals, within the military, and in many similar venues. Eventually, young people growing up in an era of increasing openness could barely grasp what the big deal had been.

In the same way that a dictator like Milosevic depended on a collective belief that nothing could be done about him, the second-class status of gays depended on each person feeling like there was no point in taking gay rights seriously, because it would never happen anyway. Instead, by focusing on these smaller venues, one group of people after another were put in the position that they personally were holding back the tide. Each institution that flipped pushed the onus onto the next.

Part of the process of transformational change is that once an issue has won, its righteousness becomes common sense. After this happens, people will commonly deny that the change was ever a big deal to begin with. They will contend that the shift was an inevitable by-product of historical forces, that it would have happened even without a struggle, and that the lessons that one can draw from it are therefore limited.

Momentum. In pragmatic political action, what counts is the concessions that authorities are eventually forced to yield. Whether the action succeeded or failed is judged by whether the pipeline gets built or the workers get a raise.

But transformational movements are always playing to a larger audience. If an action draws attention to a larger issue and can be spun as a momentum-building win, even comparatively meager concessions can amount to a major victory. Gandhi’s Salt March was resolved fairly cheaply by the local powers-that-be, but was a key step in the larger campaign for India’s independence.

The salt tax was hardly the heart of British power in India, and the modest agreement Gandhi eventually made did not eliminate it. But it was an issue whose symbolism everyone could grasp: The British had claimed control of the basic stuff of life, and British laws prevented Indians from providing for themselves. And whatever deal came out of the negotiations, the symbolism of Gandhi (in Winston Churchill’s account) “striding half-naked up the steps of the Vice-regal palace” to negotiate as an equal with a British Lord was a victory in itself. Biographer Geoffrey Ashe wrote:

In the people’s eyes, the plain fact that the Englishman had been brought to negotiate instead of giving orders outweighed any number of details.

King’s Birmingham campaign had a similar outcome: modest concessions from the Birmingham business community, but a huge national boost in momentum for the Civil Rights movement.

The Englers point to the importance of framing the result: Ideally, the movement sets goals that it can judge for itself, rather than objective goals that outside news media can declare unmet. Otpor referred to this practice as “Declare victory and run.”

Disruption, sacrifice, escalation. After the financial collapse of 2008, many well-established and well-funded organizations tried to get the public interested in economic inequality. Labors unions tried, national pundits tried, and the issue largely didn’t take off — until Occupy Wall Street.

It’s easy to look back and proclaim OWS a failure: It elected no candidates and passed no laws. The occupations are gone now and the system is largely unchanged. The Trump administration is busily rolling back what few post-2008 regulations did get passed. But OWS shifted the national conversation; its message of the 99% and the 1% has stuck, and we have not heard the last of it. David Graeber, who talked about his OWS experiences in The Democracy Project, stated a different way of judging success: “transformations of political common sense”.

OWS succeeded in getting the inequality issue on the table because — unlike the well-crafted arguments of pundits or the ad campaigns of established political organizations — they were disruptive and dramatic. In cities all over the country, people had to walk around the encampments and governments had to decide how long they would let them continue.

Disruption gets attention, but by itself it can be counterproductive: The public might just get mad at the disruptors and continue to ignore the issue they’re trying to raise. What counters that in a well-designed protest is that the protesters lives are disrupted more than anyone’s. By enduring hardship and the possibility of arrest or violence, protesters demonstrate their commitment and earn the public’s sympathy.

This kind of sacrifice is often described as an attempt to reach the heart of the enemy, but actually it works to raise the energy of friends.

When people decide to risk their safety or to face arrest, their decisions have the effect of mobilizing the communities closest to them. … Disruption is a crucial means for making sure that demonstrations are not overlooked. Sacrifice, meanwhile, makes it more likely that observers will side with the movement participants rather than those who move against them.

Established organizations, like unions or political parties, have too much to lose to engage in significant disruptions; they can be sued for their assets or their hard-won access and privileges can be taken away.

Finally, a successful mass protest needs a path of escalation. Occupy began as a few people camping in a park near Wall Street, but it quickly morphed into “Occupy Everywhere”.

Whirlwind. The goal of mass protest is to arrive at a state the Englers call “the whirlwind” — moments when previously “impossible” things are happening on a regular basis, the old political common sense is useless in predicting the future, and new possibilities open up. In 1989, for example, it seemed impossible that the East German government could fall, the Berlin Wall could be torn down, and Germany could reunify. In 1989, it happened.

Political scientist Aristide Zolbert describes them as “moments of madness” — periods of political exuberance when “Human beings living in modern societies believe that “all is possible”.

Whirlwind moments are usually triggered by some unpredictable event, like the Tunisian street vendor who set himself on fire and sparked the Arab Spring, or the shooting of Michael Brown that ignited the Ferguson protests. That unpredictability is a large part of what makes the whirlwinds themselves seem spontaneous and unplanned. But the Englers argue that “potential trigger events happen all the time”. What’s rare is a community ready to exploit one.

For example, Rosa Parks was far from the first African-American to refuse to give up her seat on a bus. But she did it at a moment when the Montgomery black community and the Civil Rights movement were ready.

Chance offers up possibilities for revolt; movements make whirlwinds.

Particularly inspired leaders sometimes come up with ways to make their own sparks, as Gandhi did in the Salt March. Other times the trigger events actually are foreseeable: Otpor foresaw that Milosevic would steal the election they had pushed him to hold.

Whirlwinds, however, do not last, and the visions they inspire at their peak are often not realized. That’s why afterwards it can be hard for activists to give themselves credit for what actually was accomplished. (In his model of the process, Bill Moyer — not to be confused with Bill Moyers the journalist — included “perception of failure” as a predictable stage.) But they should not lose heart.

A movement that is building popular support need not worry if its initial moment in the spotlight passes and the fickle news media turns its attention elsewhere. Instead, its active supporters can ready themselves to ignite fresh waves of protest when the opportunities arise.

Division, violence, and discipline. A movement need not become popular to achieve its purpose. ACT UP, for example, used divisive and aggravating tactics to force a reluctant nation to recognize the AIDS epidemic. Often the group raised more hostility than support, but what it really garnered was attention for an issue the mainstream would rather have ignored.

Asked in 2005 if he thought ACT UP’s tactics had been alienating, [activist Larry] Kramer responded with characteristic indignation. “Who gives a shit? I’m so sick of that. You do not get more with honey than you do with vinegar. You just do not.”

Protest is nearly always polarizing to some extent, because often the purpose of a protest is to dramatize injustices previously swept under the rug. Martin Luther King, for example, was often criticized as a troublemaker who disrupted previously peaceful cities.

Yet there is a danger here. For polarization to work to the advantage of a social movement, advocates cannot delude themselves into thinking that public reaction does not matter or that “anything goes” is a viable strategy. Activists can take the risk of being called rude and rash as a result of pursuing confrontation. But if a movement is to remain effective, it must be another thing as well: disciplined.

The cautionary example here is Earth First!, whose tree-spiking tactic sometimes resulted in injury for sawmill workers. (Logging companies could have avoided this by not logging areas that had been spiked, but they typically were not the ones blamed.)

If a movement’s tactics are so divisive and widely condemned that they overshadow the issue at hand and foster sympathy for the opposition, polarization works against it. Judi Bari, who turned Earth First away from spiking, never became a pacifist. But she recognized

People who put their bodies in front of the bulldozer are depending on prevailing moral standards and the threat of public outrage to protect them from attack. Unfortunately, prevailing public opinion in the country, at least in the timber region, is that if sabotage is involved, they have a license to kill. Until that changes, mixing civil disobedience and monkey-wrenching is suicidal.

It may at times be tempting to answer government violence with violence. But Gene Sharp cautioned:

It is important for the actionists to maintain nonviolent discipline even in the face of brutal repression. If the nonviolent group switches to violence, it has, in effect, consented to fight on the opponents own terms and with weapons where most of the advantages lie with him.

Ecology of radical organization. The book closes with a chapter explaining that many different types of groups are necessary to achieve lasting change.

Not all efforts to create change prevail over the long term. But those that do tend to see themselves as part of an ecology that is made healthier when different traditions each contribute: mass mobilizations alter the terms of public debate and create new possibilities for progress; structure-based organizing helps take advantage of this potential and protects against efforts to roll back advances; and counter-cultural communities preserve progressive values, nurturing dissidents who go on to initiate the next waves of revolt. …

The point of momentum-driven organizing is not to deny the contributions of other approaches. But it is to suggest a simple and urgent idea: that uprising can be a craft, and that this craft can change our world.

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Flipping the Script on Fossil Fuels

April 23, 2018 – 11:13 am

Middle-class climate deniers may think they’re running with the predators. But they’re really prey.

Last Monday, Paul Krugman’s column “Earth, Wind, and Liars” took an interesting tack in talking about climate change and fossil fuels. Up until recently, a typical anti-fossil-fuels argument has been moral: We should stop burning coal and oil because the accumulation of CO2 in the atmosphere is wrecking the climate for future generations.

To the extent environmental defenders have made an economic argument, it usually has been based on comparing long-term interests to short-term interests: We should ignore the artificial cheapness of, say, burning coal in power plants, because the future damage done will have long-term costs that the current price doesn’t account for. People who make this argument talk about externalities (real costs of a transaction that get pushed off on someone other than the buyer or seller), and advocate policies like a carbon tax to re-insert those externalized costs back into the market. Again, though, the argument is fundamentally moral: Shoving the costs of your present-day consumption off onto future refugees and hurricane victims is a nasty thing to do.

The pro-fossil-fuels interests, though, are well defended against moral arguments. They’ve done their best to undermine public confidence that we can predict the future at all — science being part of the global socialist conspiracy, after all — so all those suffering people in the future (or in distant countries or in social classes the media ignores) can be dismissed as imaginary. And even if their reality is admitted, today’s conservatism has a bad-boy aesthetic that glories in its own hard-heartedness: We live in a dog-eat-dog world where you’re either the predator or the prey. Bleeding-heart liberals are weak, and would let Those People (foreign, non-white, non-Christian) take advantage of People Like Us.

But Krugman’s column makes a different argument. He’s far from the first one to do so, but his point has not yet broken through to the general public.

Not that long ago, calls for a move to wind and solar power were widely perceived as impractical if not hippie-dippy silly. Some of that contempt lingers; my sense is that many politicians and some businesspeople still think of renewable energy as marginal, still imagine that real men burn stuff and serious people focus on good old-fashioned fossil fuels.

But the truth is nearly the opposite, certainly when it comes to electricity generation. Believers in the primacy of fossil fuels, coal in particular, are now technological dead-enders; they, not foolish leftists, are our modern Luddites. … [T]here is no longer any reason to believe that it would be hard to drastically “decarbonize” the economy. Indeed, there is no reason to believe that doing so would impose any significant economic cost.

… The fossil fuel sector may represent a technological dead end, but it still has a lot of money and power. Lately it has been putting almost all of that money and power behind Republicans. … What the industry got in return for that money wasn’t just a president who talks nonsense about bringing back coal jobs and an administration that rejects the science of climate change. It got an Environmental Protection Agency head who’s trying to suppress evidence on the damage pollution causes, and a secretary of energy who tried, unsuccessfully so far, to force natural gas and renewables to subsidize coal and nuclear plants.

In the long run, these tactics probably won’t stop the transition to renewable energy, and even the villains of this story probably realize that. Their goal is, instead, to slow things down, so they can extract as much profit as possible from their existing investments.

In other words, non-plutocrat Republicans (the vast majority, in other words) are kidding themselves when they imagine they’re running with the predators. They’re the prey. The predators are the coal and oil barons who have bought their party and who fund the propaganda they listen to. The prey will be stuck not just with the damage from hurricanes, droughts, and wildfires (that they can argue might have happened anyway), and not just with diminished prospects for their children and grandchildren (which — with ever increasing difficulty — they can still deny for a few more years), but with higher bills and an antiquated electrical system. That’s going to happen not decades hence, and not just according to some computer model built by those nefarious scientists, but in the fairly near future.

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My taxes are half what I’d pay if I just made wages

April 16, 2018 – 10:12 am

OK Donald, I’m not going to publish my tax returns either, but I do want to reveal enough information about them to make a point.

Over the last few years, my wife and I have eased towards retirement, which means that an ever-higher percentage of our income comes from investments (interest, dividends, and capital gains) rather than wages. And I’ve watched our taxes go down accordingly, because the tax code is stacked against people who get their money by working. (I’ve been complaining about this at least since 2005. I made a related complaint about estate taxes after I settled my father’s estate in 2015. As a worker I paid one rate; as an investor I have paid a much lower rate, and as an heir I paid essentially nothing.)

I think 2017 was the first year (or maybe the first since that lucky investing year of 2004 that made my tax return look so shocking to me in 2005) that wages have been less than half of our income. And that made me wonder: If I refigured our federal income tax with the assumption that we had the same income, but it was all wages, what would that do to the tax we pay?

Answer: More than double it. A couple who had our same income, same deductions, and so on, but got all their income by working, would pay twice as much tax as we paid, and then a little more. (If you had a lot of wages and want to do my experiment in reverse, go to page 44 of the 1040 Instructions and fill out the Qualified Dividends and Capital Gains Tax Worksheet under the assumption that your whole income consists of capital gains. If you’re willing to share, you can post in the comments the percentage decrease you see.)

You might wonder how that is possible, since capital gains are supposedly taxed at 15%: low, but more than half the rate most wage-earners pay. The answer is that your first chunk of capital gains isn’t taxed at all.

Taxpayers in the 10 and 15 percent tax brackets pay no tax on long-term gains on most assets; taxpayers in the 25-, 28-, 33-, or 35- percent income tax brackets face a 15 percent rate on long-term capital gains. For those in the top 39.6 percent bracket for ordinary income, the rate is 20 percent.

If you don’t have a lot of wages, you only start paying those 15-20% rates after you’ve maxxed out the untaxed chunk.

A response you’ll sometimes hear from conservatives is: “Well, if that bothers you, you should make a voluntary contribution to the Treasury.” And that entirely misses the point. If the problem were my personal sense of guilt over being allowed to pull less than my weight, a contribution to the Treasury would deal with part of it. (I still would have the privilege of deciding for myself what my fair share is, though. That still would put me in a different class from people who have to either pay what they owe or go to jail.)

But my complaint isn’t that I lack some proper method to flagellate myself for having income. The guilt shouldn’t reside with those of us who fill out our tax returns honestly and arrive at the ridiculously low number the law intends us to pay. It’s with the politicians who write these rules, and (even moreso) with the people who use the outsized influence their wealth gives them to induce politicians to write such unfair rules in the first place.

Our tax system is unjust, and every person who earns wages should feel insulted and abused by it. Me sending an extra check to the Treasury would do absolutely nothing to change that.

The problem is structural, so the solution needs to be structural: All forms of income — wages, interest, dividends, capital gains — should be taxed the same. (That’s not a flat tax. Once you total up your income, the tax tables could still be progressive, with rich people paying a higher rate than poor people.) Not only would that change make our tax system fairer and more just, it would achieve goals conservatives are always claiming they support: Figuring out what you owe would be simpler, and the tax code would distort our economy less, since there would be no need for the shenanigans wealthy people pull to make their wages look like capital gains.

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