Did They Take Away Your Vote
in Our (Sort of) Democracy?

With Donald Trump running away with the Republican party and its establishment in a tizzy over how to upend him, the usual quadrennial
irritations over how we vote for president have been muted. But as the election itself approaches, we’ll soon be in dudgeon that another four years have passed and we’re still stuck with the same clunky system.

Start with the primaries. The states and the political parties are free to mostly do as they please, so instead of a single primary day in all the states, the dates are scattered across the calendar, making the candidates zig-zag frenziedly around the country. Two states — Iowa and New Hampshire — jump ahead of all the rest to win the outsized attention of candidates for months, even though they have only a combined 1.4% of the population. And some states use caucuses, unaccountably lauded as a wonderful example of democracy in action considering that folks are denied a secret ballot, must therefore visibly reveal their preference, and are subjected to peer pressure to change it.

We all then became aware of something called “superdelegates”, the power élite’s thumb on the scale as a counterweight should your vote meet with their displeasure. Superdelegates, which inhabit only the Democratic party, are party factotums who are simply handed the right to be a delegate by virtue of being a somebody — a former or current elected official of a state such as governor, senator, House representative, or just a party faithful or worker such as a member of the Democratic National Committee.

Across the states there are 712 superdelegates — a big number — out of a total of 4,763 who will vote at the Democratic convention. That’s just shy of 30% of the 2,383 a candidate needs to win, a significant dilution of the votes of the rest of us. Election-savvy Hillary Clinton is running well ahead, so she didn’t really need them, but she had lined up most of the superdelegates well in advance, probably before Bernie Sanders even knew what they were.

The superdelegate ruse was adopted by Democrats in 1982 when the party’s establishment, stung by the 1972 rout of George McGovern by Richard Nixon, and then by Jimmy Carter’s edging aside Ted Kennedy at the 1980 Democratic convention, decided they should have a way to prevent an insurgent grass roots populist from becoming the party’s candidate. Steamrollered by the Trump juggernaut, it is now the Republican party kicking itself for not having done the same.

conventions, on the other hand…

While superdelegates are worth noting as anti-democratic, primaries are nonetheless part of a far more democratic process than what had gone before — the behind-closed-doors anointing of party candidates at the summer conventions, where caricatured cigar-puffing power-brokers once trampled the will of the people in “smoke-filled rooms”.

Consider the 1960 Democratic convention in Chicago. In the midst of the Vietnam War, Lyndon Johnson had decided not to run. His vice-president, Hubert Humphrey, ran in his stead. Anti-war candidate Robert Kennedy had been assassinated and party kingmakers were apprehensive that his delegates might commit to the other anti-war candidate, Eugene McCarthy, putting him ahead of Humphrey. Even though 80% of voters had voted for the anti-war candidates in those states which held primaries, the party potentates chose Humphrey, who went on to lose to Richard Nixon.

That power grab and the street violence which the Walker Report would later call a “police riot” for their brutal crackdown on protesters in the streets of Chicago are what led all states to adopt either the primary or caucus system for deciding on party candidates democratically, reducing the conventions to a formality.

second thoughts?

The ascendancy of Donald Trump against all attempts to eliminate him has caused the Republican establishment to pine for the good old days. By the beginning of March behind the scenes speculation about how to unseat Trump at the convention had broken cover, irrespective of the betrayal that would mean of primary voters. Nevertheless, the subject is alive, such as Chris Christie saying he has advised Trump not to bolt the party if he is denied the nomination. “I’ve urged him not to do that”, said Christie, suggesting that it had indeed been considered.

The prospect of Trump as the nominee even stirred Mitt Romney to re-emerge four years later to deliver a speech outlining the catastrophe Trump portends for the Republican party, calling Trump “a phony, a fraud”. The maneuver backfired badly. At this writing, over 70 Republican experts on foreign policy and national security issued a press release pledging to oppose the front-runner. Anti-Trump groups poured millions of dollars into ad campaigns in Florida and Ohio, both winner-take-all states, in the hopes of preventing Trump from pocketing all 165 delegates in their March 15th primaries. It worked only in Ohio where favorite son Governor John Kasich won by a good margin.

And now we are now told that the people do not decide who is to be the nominee, the Republican Party decides, and it sets the rules for the convention that will engineer that decision. That tells us that the months of primaries and caucuses are only meant to give the process a democratic patina. Trump is archly threatening at his increasingly violent rallies that if there is an attempt to take the nomination from him, “there is going to be trouble”. Cleveland must be wishing it hadn’t won the bid to hold the convention.

off to college

Bad enough that in some states the primary winner walks away with all the delegates. Worse is that the practice becomes almost universal come November when the constitutional abomination only Supreme Court originalists could love takes over: the Electoral College.

Instead of your vote for the presidency awarded directly, “Each State shall appoint…a Number of Electors” in place of you, and in 48 of the states, all of their votes are given to the winning candidate in those states. Only Maine and Nebraska apportion votes. As with the primaries, if you live in a state where a majority, however slim, vote for the other party, you might as well not exist. Your vote is nullified. Or you could say it has been stolen and given to the opposing candidate without your consent.

Because minority votes are not counted at all when all of a state’s votes are handed to the majority candidate, the effect of the Electoral College is for states with foreordained outcomes to be ignored. In 2012, candidates campaigned in only 10 states after the conventions, Romney bypassing Democratic strongholds on the West Coast and the Northeast, and Obama flying over the South and Plains states. The other 40 states never got to see the candidate who took their votes for granted. Why spend resources on states where the minority votes are tossed in the trash? The result is lower turnout in the states that only get to watch from the sidelines.

Far more serious is that the Electoral College contrivance makes possible going against the public will and taking the presidency from the candidate who has won the national vote. It has happened four times, most notably for current generations in 2000, when George W. Bush was declared the winner despite having lost to Al Gore by more than a half million votes. (The other three instances were in the 19th Century).

The election of 2004 came close. Had 60,000 Ohio votes shifted John Kerry’s way, handing him all of that state’s Electoral College votes, he would have won the presidency despite Bush’s lead of some three million in the popular vote count.

Not quite a democracy.

There is widespread dislike of the Electoral College. But as with constitutional originalists such as Antonin Scalia, there are those who cling with idolatrous zeal to every word of this increasingly creaky document from two and a quarter centuries ago. And so, we have absolutists against any change such as Ted Cruz saying, “the founding fathers fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution”. Without the Constitution’s Electoral College provision, “You would not have any real representation of the people who are basically in the middle of the country”, is Utah Senator Orrin Hatch’s concern. “If it was just the large states, we’d be dominated completely.” Each state is accorded electoral college votes equal to its number of House representatives and its two senators, so what Hatch is really saying is that small states should have greater proportionate weight than larger states. That’s so because their two senator votes are the same as the senator votes of the largest states. At the extremes, the two senator votes fatten California’s electoral count by about 4% but they triple Wyoming’s, which has but one representative. Ditto Montana, the Dakotas, Alaska, Vermont, Delaware and the District of Columbia. Next come five states with two House representatives and four college votes. For them, the senator bonus doubles their heft beyond their population’s proportion to the country. You could that these are the states’ superdelegates.

our ossified constitution

There will be editorials as the election nears bemoaning these facts and arguing that the Electoral College should be abolished. We hear this every four years, but constitutional amendments have become all but impossible in this polarized country. The steep climb that Article V dictates — endorsement by two-thirds of the House and the Senate and then ratification by three-quarters of the state legislatures — is insurmountable.

It didn’t used to be that way when there was a country unified in fixing what was not working. Testimony is that five amendments were adopted in just the 20 years of 1951 to 1971. That could have been six; a move to abolish the Electoral College in 1970 was filibustered out of consideration by small state senators.

workarounds

There is something ludicrous about being so hog-tied by the hoary Constitution that schemes have been hatched to outwit it instead of fixing it. But contrivances have been put forth to do so, given the impossibility of a repeal amendment. States could agree to abolish winner-take-all and split their electoral votes proportionate to the popular vote for each candidate. But the bigger states doing so would, by splitting their votes, empower still further the bloc of small states that would hand all votes to one party.

More vigorous is the proposed National Popular Vote interstate compact. States collectively representing 30% of the Electoral College have so far banded together in an agreement that they will cast all their votes for the candidate who wins the national popular vote, a pledge to become effective once states representing half the college’s votes (270) sign on. Enough further states have pending legislation that would bring the total to 46%.

But all such schemes have problems. Voters would likely challenge their state if it swung all its electoral votes to the national winner when the majority of the state’s voters had voted for the losing candidate. Doesn’t that steal your vote just as does the Electoral College? Actually, it doesn’t, because your vote will have been counted in arriving at the national total. It’s more like a committee changing its vote to unanimous as an expression of unity once the actual vote’s outcome is clear.

The National Popular Vote also overwhelms the holdout states who do not join in the compact, especially the small states with their supersenators. Outsider states would probably build a case against the NPV that it’s somehow unconstitutional for a state to throw all its votes to the candidate that a majority of its citizens voted against.

These defects in our voting practices — they’re just the half of it. We haven’t even touched on gerrymandering and the raft of new state laws that are engineered to throw the vote to one party, subjects we’ll get to next. Taken all together, it’s a stretch that we call this a democracy, and a wonder why we haven’t insisted that it be fixed.

Why Trump Arouses American Authoritarian Yearnings

Into March, on the second Saturday of multi-state primaries, a New York Times article could still say the Donald Trump phenomenon is “a movement that still puzzles the Republican elite”. Their bewilderment all along has asked why Trump’s brash crudity, his juvenile bullying insults, his months-long cascade of self-contradictions, his disinterest in the truth, and now his hesitant disavowal of white supremacists have not been met with the rejection of such conduct that a civilized society prescribes. Nothing Trump says or does, no matter how offensive, has deterred the millions who have voted for him so far.

In the Detroit debate on March 3rd, Fox News’ Megyn Kelly confronted Trump with video clips of typical contradictions in which Trump reversed his positions — on whether the war in Afghanistan was or was not a mistake, on whether or not we should accept Syrian refugees into the U.S., on whether George W. Bush lied us into the Iraq War. In the midst of the clips Trump said his flip-flops “wouldn’t matter”.

He’s right, and neither Democrats or Republicans have figured out that Trump followers don’t care.

Yes, they harbor pent up anger that under Obama we have lost power in the world, that the Republican party has only fought with itself and done nothing for them, and so forth, but these are not the root causes for the insurgency that has now split the party into a third faction and threatens its existence. Much more at the heart of the uprising were what Trump said upon entry into the campaign — calling the Mexican migrants rapists and murderers. And soon after declaring he would impose a 45% tariff on Chinese imports.

Suddenly, someone was very loudly championing downtrodden Americans stuck in a decades-long stagnant economy with no prospects, someone was speaking for an underclass that is told of the multi-million dollar pay packages corporate CEOs pay themselves and a rigged system with all the gains going to the top 1%.

Trump had simultaneously spoken out against the globalization rip-off that had shipped millions of good-paying jobs overseas, and against the influx of millions of immigrants perceived as taking away what jobs were left. “He’s saying how the people really feel,” said one woman to a reporter. “We’re all afraid to say it.”

fear itself

Fear is key in the Trump revolt, and not just economic fear. Others interviewed at rallies are fearful of terrorism and our seeming helplessness in identifying it in our midst and preventing it. Simplistic solutions work for them: Refuse entry to all Syrian refugees, ban all Muslims from coming into the country, and of course build Trump’s giant wall against Mexican interlopers. In South Carolina, a CBS News exit poll found that 75% of Republican voters supported the Muslim ban. Public Policy Polling found that a third of Trump voters support banning gays and lesbians from the country.

They are essentially frightened by change, disturbed by societal upheavals such as gender transformation and same-sex marriage, the rising tide of religious secularism, the foreign names and skin colors delivering news and commentary on television. What is happening to their America?, they ask.

Political scientists say these fears can act as triggers to set off a subset of people who have authoritarian tendencies, a desire for order and a return to the social norms that gave them comfort. They yearn for a strongman to restore the status quo ante. Donald Trump has come along at exactly the right moment to answer their prayers. He’s tough, he’s a successful businessman, they believe, who can get things done. Never mind the skeptics, the refusal to release his “very beautiful” tax returns, his vagueness, his lack of prescriptions. Months deep in the campaign, Trump has presented almost no policy statements. He seems to have no interest in learning anything of the threats compounding in the world — Syria, Iran, Russia, Afghanistan, Pakistan, Iraq, North Korea, China — and prefers to remain proudly ignorant. He spouts non-answers: About healthcare, “I am going to take care of everyone”; about foreign policy, “I’ll get the best people”; about everything, “It’s going to be great, believe me”.

The Detroit debate provides this example among many. The subject turned to foreign policy and Marco Rubio concluded his rundown with,

“The next president of the United States is going to have eight years of a mess of a foreign policy to clean up and that’s why it can’t be someone who simply has not shown the intellectual curiosity or interest in learning about these very complicated issues.”

Trump’s answer (with an unidentified “they” and repetitions removed) was stupefying:

“When I say they’ll do as I tell them, they’ll do as I tell them. It’s very simple…We have a depleted military… We have, by the way, our vets are treated horribly…we’re going to start taking care of our vets properly like we should. We’re going to build up our military and we’re going to get the equipment we want, not the equipment that’s sold to us by somebody who gave him and him [gesturing to others on the stage] and not the governor campaign contributions. We’re going to get the equipment that the generals and the soldiers want. I will prove to be a great leader. Every single poll when it comes to ISIS, the military and the border say that Trump is the best”.

No sense can be made of this incoherent ramble but the crowd in Detroit roared its approval.

bottom fishing

Trump has now peeled back yet another layer to expose in his followers the ugly substratum of bigotry. His delayed disavowal of David Duke’s support, his prevarication in an interview with Jake Tapper in which he feigned ignorance of Duke and repeatedly claimed to “know nothing about white supremacists” was taken as a dog whistle call to such groups that he wanted their support. The protracted race problems of Ferguson, Missouri, the police blamed for killing blacks, the black street protests and victimhood campaigns such as “Black Lives Matter” — a proven connection is not at hand, but we may find that this constant barrage on their nightly television news has awakened in Trump’s core supporters — white, less educated, in low paying jobs at best — a resentment that their difficulties have once again been ignored. Trump may be encouraging suppressed racial hatred to burst forth that could grow much worse.

Their ilk began to show up at rallies to throw out hecklers and with Trump’s urging — ” get him outta here, get him out, get that guy outta here, get him out, I think he should be arrested” — from the podium. This has become an expected “feature” of his rallies. A known neo-Nazi named Matthew Heimbach was one of those in a Kentucky rally that shoved a black woman to the exit and who later re-tweeted a Glenn Beck tweet that said “I believe Trump, whether he knows it or not, is grooming Brown Shirts”, alluding to the paramilitary group that ran interference for Hitler, to which Heimbach added, adding “God I hope so”.

What’s the next vein of hatred that Trump will open? Is anti-Semitism soon to come?

role model

Was Trump really unaware that the aphorism he tweeted to his six million followers — “It is better to live one day as a lion than 100 years as a sheep” — is attributed to Benito Mussolini, Italy’s fascist dictator in the years leading into World War II? It’s nonsensical
on its face, but for Trump, “It’s a very good quote,” as he said to NBC’s Chuck Todd. Trump cannot be blamed for his likeness to “Il Duce” (“the leader” in Italian) that was remarked on early in the campaign. And yet he affects an arrogant posture — chest out, head tilted up to look down on those around him — that eerily suggests he is modeling himself after Mussolini.

Europe has certainly taken note; they know something of authoritarian demigods.

“Europe knows how democracies collapse, after lost wars, in times of fear and anger and economic hardship, when the pouting demagogue appears with his pageantry and promises.”

That’s from Roger Cohen, the British New York Times columnist writing from London.

As ye sow…

For a few decades now the GOP has declared itself the standard bearer for traditional values and law and order. That has attracted a certain sort of person, those who prefer a simpler, structured society and would rather not see the world around them change. In this book, Vanderbilt University professor Marc Hetherington and University of North Carolina’s Jonathan Weiler concluded (says this article at Vox) that the GOP “had unknowingly attracted what would turn out to be a vast and previously bipartisan population of Americans with authoritarian tendencies”. You could say that the Republican party had unwittingly been gathering tinder without attention to sparks.

In this century, the voice of the GOP became Fox News along with a number of radio hosts. Millions have been getting all their news from Fox for years, and in the past seven years, Fox has relentlessly told viewers that President Obama, deliberative and seeking to avoid wars, has degraded America’s stance in the world because he is weak. He speaks of red lines, but fails to follow through. He goes on “apology tours”, destinations unspecified. He leads from behind where he leads at all.

So there’s some justice in seeing viewers, whom Fox has so thoroughly indoctrinated in the shameful weakness of Obama’s America, turn to a strongman to make America great again. Horrified at the prospect and not even mindful that they played a significant role in the cause, Fox is backpedaling furiously to get its viewers to renounce Trump.

trumping trump?

In the general election, the Clinton campaign has no end of material to throw at Trump. They will pull together composites of his incendiary slurs against Muslims and immigrants, his desire to “open up” the libel laws to wield against a free press, his intention to introduce new torture methods that “go a lot further” than waterboarding (until the military made him walk that back), whatever they can find by digging into court and SEC records of his businesses — he is what Brit Hume on Fox called a “target-rich environment”.

Like Mitt Romney’s second-coming to save the country, this will only increase the anger of the Trump idolaters against the establishment telling them how to vote.

Clinton lieutenants had expected victory by a landslide, but had not accounted for the tepid response of women to Hillary this time around, and the disaffected blue-color white Democrats who have been crossing over to vote for Trump. Former Pennsylvania governor Ed Rendell assures them that, “For every one of those blue-collar Democrats he picks up, he will lose to Hillary two socially moderate Republicans and independents” in the suburbs of Midwestern cities, “places like that”. But maybe they will only fill the gap of disillusioned Sanders Democrats who will stay home rather than vote. The dynamics should prove unique and unpredictable.

Trump in the oval

If Trump does find himself in the Oval Office — out of his depth, hemmed in by Congress and Constitution and quite unable to deliver what he has promised, when they won’t “do as I tell them”, when it is apparent that everything is not “going to be great” — what then? Will his legions of followers take to the streets? How then to control the angry mobs that Trump will have let loose upon the land?

Minimum Wage Deniers Still Fighting Reality

Another seventeen states either increased their minimum wage at the start of the year or are scheduled to do so during 2016. That’s in addition to 22 states last year, with an overlap of 14 that are ratcheting up their rates two years in a row.

With the American public strongly in favor of giving America a raise, as Obama has put it, one would think Republican candidates would be declaring their support for bigger paychecks to gain votes, yet they and conservative editorial pages staunchly argue to keep the minimum where it is at $7.25 an hour, unchanged from 2009 and with no concern that inflation has already taken $.75 out of its buying power in the years since.

Marco Rubio called raising the minimum wage “a disaster”. Jeb Bush says leave it where it is. Ben Carson at first was in favor of raising it an unspecified amount, then joined the pack saying it would be misguided to raise the wage. “Every time we raise the minimum wage, the number of jobless people increases”, which ignores the other half of the equation, the benefits to those whose higher paying jobs continued. Donald Trump has said that, “we’re not going to be able to compete against the world. I hate to say it, but we have to leave it the way it is” and even declared that “our wages are too high.”

In the other camp, Bernie Sanders unsurprisingly wants $15 an hour, but spread on five years. Hillary Clinton more conservatively thinks $12 an hour on a timetable is sufficient.

one-sided doesn’t fit all

For the arguments why wages should be held fast for the sake of businesses, look to the opinion pages of The Wall Street Journal, which continues to fight for the status quo.

There’s David Neumark, an economics professor at the University of California at Irvine, who, judging from his unmodified stance from our reporting on him before, is single-minded about proving that a rise in the minimum wage costs jobs.

In this op-ed he seems exultant that a study has come along that
says the “minimum wage reduces job growth over a period of several years”, which is not the same as job loss, and another study that “found a 1% or 2% reduction for teenage or very low-skill employment” for each 10% wage increase. There is no mention that, per force, the 98% or more have seen their paychecks rise by 10%. Accepting only research that backs his position, he then disparages studies by other reputable economists who have found job loss to be negligible, calling a widely cited and pioneering study by two Princeton economists “flawed” and condescending that another study by collaborating economists from the universities of Massachusetts-Amherst, North Carolina at Chapel Hill, and California at Berkeley has “serious problems with the research design and control groups”. Sharp elbows indeed.

Neumark is also in conflict with 600 economists, seven Nobel winners among them, who wrote a letter to President Obama and congressional leaders saying, “Research suggests that a minimum-wage increase could have a small stimulative effect on the economy as low-wage workers spend their additional earnings, raising demand and job growth” and that evidence showed that past increases in the minimum wage resulted in job loss ranging from minimal to none.

Then there is Andy Puzder, who seems to have open access to the Journal‘s op-ed page where he is welcomed to present self-serving arguments against any minimum wage increase. He is the CEO of CKE Restaurants (Hardee’s, Carl’s Jr.). We count four submissions in six months. In one he calculates that the aggregate profits of all retail, restaurant, pharmacy and supermarket companies in the Fortune 500, divided by their headcount, yields about $6,300 in profit per employee. He then figures that an increase in the minimum wage to only $9 an hour would cut that profit to under $4,000; to under $2,000 if the increase were to Obama’s proposed $10.10 an hour; and to a loss if Clintons $12 an hour were enacted.

But if an industry can only operate at a profit by paying its workers today’s minimum wage — a Dickensian $15,000 a year for a 40-hour work week (no vacation, no sick days) — then it should be clear that it is a parasitic business model. It is subsidized by we taxpayers because its workers must turn to government social programs — food stamps, housing assistance, Medicaid, refund of taxes — to fill the gap between their poverty level wage and life’s necessities. Yes, but we benefit from low prices, goes one argument. But why should our wallets be fattened by low prices made possible by exploitive wages paid to other Americans? It can’t be otherwise for Mr. Puzder it seems, who oddly concludes with, “With low inflation and the economy growing at an annual average of about 2.2%, dramatic price increases are unrealistic”, as if such low inflation is depressing the economy and as if more disposable income in the hands of low-income people, who will spend it all on goods and services, would not boost the economy.

Another argument says that a higher minimum would price out of the market the teenagers who are the typical minimum wage earners. But this is a fallacy. Only 33% of minimum earners are less than 25 years old, much less teens. Another 30% are 25 to 39; the next 21% are 40 to 54, and 15% are 55 and older.

When Wal-Mart announced raising its base wage first to $9 an hour and then to $10, it predicted a 6%-to-12% decline in earnings per share, 75% of which it attributed to the payroll increases. When he later saw Wal-Mart announce it would close 150 U.S. stores, that was conclusive proof for Mr. Puzder in another op-ed piece that minimum wage increases result in job losses. “When a store closes, the minimum wage for your lost job is zero”, he writes. “Activists should have seen it coming. Unlike the government, Wal-Mart can’t survive if it isn’t profitable”.

Well, no, but wasn’t that only a 6%-to-12% profit decline he reported earlier and not bankruptcy? And if it is so stressed how can Wal-Mart manage the $20 billion stock buyback that it intends, money enough to pay all of its 1.4 million U.S. employees more than an extra $14,000 each. Puzder writes:

The lesson is that America’s largest private employer — known for its ability to control costs and operate efficiently — lost profit because the company couldn’t offset a wage increase to $9 an hour by increasing prices, automating tasks or scheduling employees more efficiently.

As said, that only demonstrates that Wal-Mart’s is a business model that doesn’t work if it pays any more than subsistence wages. And the company says it is closing those stores because they are “underperforming” with no mention of wages. And all are the company’s Express offshoot — small format stores that Wal-Mart has found generate too low sales per square foot. But the Journal editors allow Puzder to blame it all on wage increases. And he ignores that Wal-Mart says it hopes those increases will stem the defections of the 500,000 dissatisfied employees it loses every year and that the company will recoup what it spends to hire and train new employees.

What’s our point, if you’ve stayed with us this far? It’s to show that the Journal is not to be trusted on this particular subject.

paradox

In place of the minimum wage, some in the conservative camp — Marco Rubio most notably, as part of his tax reform plan — want to replace social programs with what amounts to an expanded earned income tax credit (EITC) from the federal government. That appeals to those on the right, because, as a program voted in during the Reagan years, it limits eligibility to only those who work, and by making that the condition for augmenting their low wages it encourages people to stay in the work force. Okay, but it is curious that conservatives would want to expand a government dole, and even argue that the work component plays to workers’ dignity, whereas the minimum wage, which workers see themselves earning directly in their weekly paycheck, is what workers view as demeaning. Really? Did anyone ask the workers?

Both the EITC and the Republican expansion plan are defective for being a tax credit, though, because it is paid once a year, is based on the prior year’s income tax return, and is therefore paid well after-the-fact. A smarter plan showed up in a New York Times op-ed by Owen Cass, a fellow at the Manhattan Institute, a conservative think tank whose op-eds regularly appear not at the Times but at the Journal.

Cass proposes a direct wage subsidy paid to low-wage workers. A “target wage” would be established proportional to the median wage in each market area. The employee’s paycheck would be supplemented by an amount equal to the difference between the target hourly wage and the actual wage paid by the employer. The worker gets the money straightaway, in every payroll, and into the economy that extra money is sure to go then and there, instead of what Cass calls the “boom or bust” of the delayed annual payout. The author claims that the government could cover the cost with $150 billion replacing the $65 billion now spent on the EITC and the long list of social programs. Cass doesn’t go into the mechanics, but the employer would have to compute and finance the payment for each employee based on the government’s published market target, so the program would require near instantaneous reimbursement from the government or a perpetually topped up advance account for each employer.

Is $15 realistic?

In “What’s Going to Happen to Your Social Security?”, we conclude by saying that we must go to $15 an hour to enable workers to provide enough for their greater longevity. But that is a separate imperative. When the minimum wage is considered on its own, the more feasible national floor would seem to be $12, and that reached over three-four years (and then indexed to inflation). The reason is the different economic levels across the U.S. and the common sense avoidance of setting a wage that exceeds the median wage of a given state or area. High-cost Alaska, where the median is over $22 an hour, could manage $15, for example, but at 155% of Puerto Rico’s low-wage median it would be ruinous. The federal minimum should be just that — a rock bottom to protect workers. Each state and city would continue to be free to set its own wage above the federal level.

Oregon has just gone a step further. It plans increases across six years that will take the minimum to $12.50 in rural areas, to $13.50 in smaller cities and $14.75 in metro Portland.

Meanwhile, as the states take charge, Congress continues to do nothing.

Mar 10 2016 | Posted in Economy | Read More »

There Are No Cheerleaders at Trump University

How has it come to this?: Two presumed candidates for the presidency of the United States who are both deep in legal problems, the one accused for misdeeds deserving of prosecution under the Espionage Act of 1917, or so Republicans would have it, the other awaiting a court date in which he and his company have been accused of swindling a few thousand people.
That Hillary Clinton’s State Department e-mail has been serially served up in batches, re-awakening the story every few weeks, has made for a multi-course feast for the media, particularly at Fox News. When the story is not blaming Hillary for Benghazi, which has been running at Fox for three and a half years, the “news” hosts and panelists fill the time slots with wonderment why Ms. Clinton hasn’t been indicted for her conducting classified national business on a private server.

But in contrast, lawsuits over Donald Trump and his Trump University have received muted attention. There were pieces of some length at
The Washington Post and Time magazine, but that was last fall. The New York Times did run a story as its lead article in mid-March, but on a Saturday, the least read day of the print edition. It is as if the weakened print media are wary of the cost of defending lawsuits from the notoriously litigious Mr. Trump, who has expressed his desire to “open up” the libel laws to wield against a free press.

Begun in 2005, Trump’s purported “university” ceased operations in 2010 in the face of two lawsuits in San Diego, investigations by a number of states’ attorneys general, and a suit brought by New York State Attorney General Eric Schneiderman (whom Trump calls a “political hack”). A judge in San Diego has allowed one of the two cases there to go forward under the Racketeer Influenced and Corrupt Organizations Act, or RICO, which says that the candidate could be branded a racketeer.

the up-sell

Marketing materials for Trump University lured students with the promise to teach them Donald Trump’s “insider success secrets” on how to win in real estate. “He’s earned more in a day than most people do in a lifetime,” says a 2009 ad for Trump University. “He’s living a life many men and women only dream about. And now he’s ready to share — with Americans like you — the Trump process for investing in today’s once-in-a-lifetime real estate market.”

In a promotional video, Trump said instructors would be “hand-picked by me”. They would show how to structure get-rich-quick deals and even guide students to finding lenders to finance those deals with “other people’s money”. “We’re going to have … terrific people, terrific brains … the best of the best”.

Court documents said otherwise. The president hired by Trump to run the university said in a pretrial deposition that “none of our instructors … were handpicked by Donald Trump” and that the course curriculum was written by an outside firm that develops materials for adult education courses as its business.

Trump himself has been deposed. He admitted to these misrepresentations and could not explain some of the techniques that the marketing brochures pledged to teach, such as Trump’s “foreclosure system” which the course writers had seemingly invented. Trump said he had personally approved the marketing materials but did not so much as review the curriculum — the contents of the courses that supposedly divulged his proprietary arts of the deal. He was thus not even interested in what was being taught. And the instructors were not successful real estate experts; they came from sales backgrounds. A couple of them had filed for personal bankruptcy.

Newspaper ads and invitations over Trump’s signature sent by mail offered free 90-minute workshop sessions held in 700 locations across the country. Their goal was to persuade attendees to sign up for three-day workshops with a $1,495 tuition that would be “all you need” to go forth on the road to riches. Well, not quite, as it turned out, because at this second tier, the playbook for the “mentors” — who were paid commissions, not a salary — was to “set the hook” in their pupils to sell them third-level programs costing from $9,995 to $34,995.

And sell they did. Court disclosures show that 80,000 attended the 90-minute sessions and close to 9,200 continued to the $1,495 three-day course, during which the instructors urged participants to use the lunch break to call their credit card companies to expand their credit line so they’d have funds for their first real estate deal. But the New York suit alleges that the real purpose was to position the students to sign up for the up to $35,000 Trump Silver or Gold Elite packages they were about to up-sell. Some 800 took the bait.

Those who completed the course were promised a photo alongside The Donald, which turned out to be only a full-size cardboard cutout. (That a photo with him was a draw suggests what sort of people were drawn to Trump U.). The lenders whom the course mentors said they would help graduates find to finance projects proved non-existent.

Trump told the reporter from Time that “all money that I made was going to go to charity”. Court testimony and evidence say that checks or wire transfers totaling $5 million were sent him from the university because he wanted to make the charitable contributions from his personal accounts, but Trump admits to reneging when the law suits and legal fees started.

satisfied plaintiffs?

The suit brought by the New York attorney general seeks $40 million in restitution for the students it says were bilked by courses that did not live up to the misleading advertisements. In San Diego, Trump’s lawyers argued that because students got varying degrees of value from the courses, their degree of damage claims varied, and therefore they should be required to sue individually, but the judge decided that so little value was conveyed in the course that the students were more uniformly defrauded, and the case was therefore allowed to go forward as a class action with some 7,000 plaintiffs. Trump “created, funded, implemented and benefited from a scam that cost them … thousands, even tens of thousands of dollars each”, reads the complaint.

On leaving, students filled out questionnaires. They were effectively coerced into signing “glowing evaluations” of the courses, says the Times article and others, pressured by the instructors looking over their shoulders, telling them that “Mr. Trump might not invite me back to teach again” if the reviews weren’t excellent. “Beautiful statements” is what Trump calls the evaluations; “98% of the students that took the course gave it rave ratings”. As defense in the lawsuit, Trump’s company set up a website, 98percentapproval.com, where 10,000 surveys are posted.

That number exceeds the 9,200 who took the three-day course (the 800 who went further are among them), suggesting that it includes some who only attended the 90-minute promotion. More contradictorily still, refunds were offered part way into the courses. In the $1,495 group, 32% were issued refunds. It was tougher to get the university to party with the $34,995 tuitions, students reported, but 16% got refunds in that group. Additionally, the mass of plaintiffs in the class action suit claim that they, too, had sought refunds, but were told that their requests were made too late according to university rules.

So the question is, how could 98% and the 10,000 be satisfied?

As the suit meandered through the courts, the Trump organization sent an e-mail blast to former students who had given a positive response in the questionnaires asking for yet another endorsement, but back came a flood of negative assessments from those who had evidently found the courses worthless in the outside world in the time since.

The judge in Sand Diego is currently weighing whether an August court date should take place in the midst of the election campaign. “This will be a zoo if it goes to trial”, Trump’s lawyer said to the judge.

In New York, the appeals court just ruled that one of Attorney General Schneiderman’s fraud cases can go forward.

The Time piece concludes with a quote from a fellow named Bob Guillo who had gone for the whole Trump Gold Elite package:

“He’s the biggest phony in the world, yet people as gullible as me think he’s the greatest guy in the world. When I watch him on TV, I’m really impressed. I think, ‘How can people believe in him?’ And I think, ‘Well, Bob, you believed in him in 2009. You gave him $35,000.’”

Mar 9 2016 | Posted in Politics | Read More »

The Constitutional Standoff Over the Supreme Court Seat

Senate Majority Leader Mitch McConnell had no truck with the niceties of eulogies and condolences. Barely an hour after death of Justice Antonin Scalia was confirmed he issued a categorical rejection of anyone President Obama might
nominate as his
replacement, proclaiming, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president”.

A week later, Senate Republican leaders slammed the door tighter saying there will be no confirmation hearings and that McConnell will not even meet with President Obama’s nominee, an ugly discourtesy that knows no precedent.

The current president had reminded him that, “The Constitution is pretty clear about what is supposed to happen now” — the prescription of Article II, Section 2 that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court”. Not “may” do so but “shall”. And it is implicit that the Constitution does not have in mind “someday”.

Charges and demands flew back and forth. President Obama was reminded in turn that he had voted to filibuster President George W. Bush’s pick of Samuel Alito for the Court. The opposition fired back with a 2007 radio interview in which McConnell had prodded Democrats to confirm Bush’s federal judge choices in his last year in office. Senator Charles Schumer, who has demanded that the Senate perform its advice and consent role, was caught out saying in a 2007 speech that, should there be another Supreme Court opening for Bush to fill, “I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances”. Marco Rubio threw down the gauntlet, challenging Obama to “nominate whoever he wants”, but “we’re not moving forward on it, period.” Apoplectic at the prospect of Obama’s getting to fill the empty seat, Ted Cruz warned that “we are one justice away from the Second Amendment being written out of the Constitution altogether” and with another Democratic president there would be “unlimited abortion on demand”. Hillary Clinton and Bernie Sanders both lambasted Cruz and the other Republicans for championing strict adherence to the Constitution — except when its commandments prove inconvenient. An exasperated Cruz blurted out, “This is a 5-4 court!”. Apparently it is always to have a conservative majority in his version of the Constitution.

strategy

Obama has let it be known that he has every intention of nominating. The question is whether he will put forth another liberal candidate for the court as he did with Sonia Sotomayor and Elena Kagan in the assumption that the Senate’s refusing their preferred sort of candidate will anger the Democratic base and send record numbers to the polls in November.

Or will he this time propose a moderate to make it as difficult as possible for McConnell and the Senate Republicans to ignore the Constitution’s directive to render “advice and consent” for a president’s nominee. The moderate option should be doubly UPDATE: Feb.26: Instead of what we expect here to be Obama’s strategic options, just after we posted this story, the President was reported to be seriously considering a Republican, Governor Brian Sandoval of Nevada, a move which would have accomplished nothing other than to anger and bewilder both Democratic centrists and liberals. Sandoval quickly asked that his name be withdrawn. Several others are said to be undergoing vetting now.
    

awkward if the choice is someone who has already been vetted by the Senate. The media immediately came up with Judge Sri Srinivasan, an Indian-American named by Obama in 2013 to the D.C. Court of Appeals and confirmed by the Senate 97 to 0, and Judge Jane Kelly, an Obama Harvard Law School classmate whom he also named to the Court of Appeals in 2013 and whom the Senate also confirmed unanimously, 96 to 0.

How will the Senators argue that they were mistaken and on reconsideration decide that neither is qualified? The answer is that they will make no argument and instead leave the court in limbo.

As summer approaches, McConnell’s absolutist stance could prove problematic for senators up for re-election this fall. If Obama sends nomination of a moderate to the Senate only to be ignored while the court hands down one after another deadlocked 4-to-4 decisions in the important cases it is now reviewing, there will be pressure on McConnell to relent, with Democrats chanting “obstructionists” in full voice. But with his second announcement McConnell has painted himself into a corner.

4-to-4, or maybe not

In the event of 4-to-4 decision, the ruling of the lower court whose decision has been appealed to the Supreme Court, stands. That will mean that a 2013 Texas law will survive that requires abortion clinics to have outpatient surgical facilities and its doctors to have admitting privileges at a nearby hospital, a law that adds so much cost that it is clearly intended to drive the clinics out of business.

But liberals will fare better in other cases. The justices again have before them the affirmative action case, Fisher v. University of Texas, (which we covered in ” Supreme Court Might Erase Race from Affirmative Action”)in which a student claimed she had been denied admission by a policy that favored less-qualified Africa-American candidates. Because she worked on the case as solicitor general when it was first heard (it had been remanded to the appellate court for further consideration but back it came), Justice Kagan recused herself, which leaves seven justices and removes the possibility of deadlock. There is a question whether the court will decide so momentous a case this shorthanded.

In Evenwel v. Abbott, yet another Texas case, the court had showed a strong leaning toward the plaintiff’s argument that only persons eligible to vote should be considered in divvying up election districts (which we’ve also explored in “Is the Supreme Court Plotting to Scramble Elections?”). But Scalia’s absence leads to a probable 4-to-4 and no change in the never before challenged practice of counting everyone.

Similarly, Friedrichs v. California Teachers Association will probably come in at 4-to-4 which leaves unchanged a case that portended a death knell for unions had it been reversed. Instead the lower court’s ruling that teachers cannot opt out of union dues will stand.

Then there is contraception. In Zubik v. Burwell the court will hear seven petitions arguing that employers should not be required against their religious principles to pay for contraception for their employees as required by the Affordable Care Act. This is a follow on from the court’s decision in favor of the Hobby Lobby corporation that Justice Kagan foretold would bring religious objectors “out of the woodwork”. A 4-to-4 dead heat will leave the lower courts split, some in favor of the plaintiffs, some against, which probably means the case will need to be re-argued when, if ever, a ninth justice is confirmed.

The most interesting conjecture came in a letter to the New York Times from Brad Thompson of McMinnville, Oregon.

Associate Justice Anthony M. Kennedy gains if he works with the liberal faction of the court. He was never reliably conservative anyway. And his legacy is not helped by being on the conservative side of virtually meaningless 4-to-4 votes. But as the senior justice on the liberal side of a 5-to-3 vote, he would assign opinions and keep the best cases for himself. He does not get to do that by joining with Chief Justice John G. Roberts Jr. (who would otherwise assign opinions) and the other conservatives. Watch Justice Kennedy over the next year polish his legacy.

the nuclear option

If McConnell manages to lock out any nominee for the next ten months, there is speculation that Obama might take advantage of the Senate’s year-end recess to appoint a new justice, as allowed by the Constitution. To prevent Obama from making recess appointments while the Senate took its long breaks throughout the year, the Senate used to keep a single member on duty to conduct daily sham sessions so that it could not be considered in recess, until the Supreme Court ruled that all those vacations were not the “Recess” that the Constitution had in mind. Only the bi-annual changeover after elections can now be called official recesses. But McConnell will probably see to plugging that opening with the same sham session technique. And even if not, an appointment during a recess is temporary.

Which leaves a nuclear option that it seems has not occurred to anyone. Say that a Republican wins the presidency. But if Democrats can trade off Republican obstinacy in not considering a new justice and in blocking the closing of Guantánamo to win back the Senate with the barest majority, they could, immediately on taking their seats, change Senate rules — allowed only at the start of a new session. The Democrats already got a rule changed in 2013 that blocked filibustering against judgeships and other appointments so that a simple majority could carry. But the appointment of a Supreme Court justice was especially excepted and is subject to filibuster.

Given that scenario, Democrats could change that rule with it newly controlling majority the moment the Senate convenes in January, making a simple 51-to-49 vote sufficient to confirm a Supreme Court justice, and then hastily begin confirmation hearings and rush through a vote for a ninth justice days before the next president takes office January 20th.