Advice to a (small ‘d’) democrat

A friend asks for facts about Joe Biden, without mentioning Donald Trump, to help her decide. Not comprehensive, but this is what I wrote her after spending 15 minutes on the question (and a few more refining for this post):

An election is a binary choice. This year’s is between an incumbent with a four-year record and a challenger whose public service stretches over decades. Biden’s record includes serving in the constitutionally useless job of vice president, in which at the president’s direction he was a minister without portfolio. Among his tasks: coordinating the 2009 expenditure of nearly $800 billion in stimulus spending approved by Congress (far less than needed) and the government’s response that year to the H1N1 virus, which originated here, posed a worldwide threat and ended up killing about 14,000 in the U.S. over two years. Having served in the White House for eight years, he has an intimate understanding of the operations of the executive branch.

Biden’s experience as a legislator is less relevant, because those skills are different. But he negotiated a lot of policies with his former Senate colleagues, including the outlines of Obamacare and a big tax bill in 2012. I didn’t like the outcomes of these negotiations, because my side lost too much. But of course negotiations involve compromise, and the deals achieved were better than no deal – or so both sides thought. Biden’s experience in the Senate is relevant to governing, because Congress writes most of our policies.

I’m not a huge Biden fan, because he’s too moderate for my taste. That is, his policy prescriptions don’t go far enough. But having policy prescriptions is not the same as achieving them. I think he can get some of them done, especially those under the control of the executive branch.

And the policies that have been promulgated by this executive over the last four years are a disaster for life as we know it on the planet, to our aspirational values, to the maintenance and strengthening of the functions of government which we have collectively asked of it over the past 160 years. The government’s scientific expertise has been systematically dismantled, everything from agriculture to atmosphere. The EPA has been turned into an instrument for polluters through the promulgation of regulations that harm our air, water and earth. The CDC has been transformed from the most respected disease-fighting institution in the world into a propaganda arm of the White House. These developments have occurred because the president has appointed political hacks in every agency in order to, as Steve Bannon put it, “deconstruct the administrative state.” For what purpose? To increase corporate profits.

In my particular area of expertise, tax policy, which I have been studying since 1981, the 2017 tax bill is the sloppiest law I’ve ever seen, so slapdash that my former colleagues in a “big four” accounting firm have spent years trying to understand and convey its meaning to clients. The IRS just issued regulations on one section of that law (I’m lobbying the Oregon legislature on it now), trying to make sense of the mishmash Congress created. On the whole, however, I would testify that the result of the law was to shift the tax burden from the richest Americans to the middle class. My own federal taxes went up $1400 in 2018, compared to what they would have been without the law. I don’t mind paying more taxes to enhance the quality of life in America. I resent it when my increased burden is used to reduce taxes on the wealthiest 1 or one-half percent, which that law demonstrably did.

Trump’s withdrawal from international treaties, including the Paris climate agreement and the Iran nuclear deal, as well as from the World Health Organization and other bodies, has made the world more dangerous.

Our border policy is an affront to our values.

You asked for facts about Biden. My assessment is that Biden would do what he can, with or without the support of Congress, to reverse as many of these policies as possible. I doubt he can reverse all of them. The institutional hollowing over the last four years cannot be rebuilt in a year or 10. For example, the Agricultural Research Service scientists who quit when the secretary moved the headquarters from D.C. to Kansas City will not return. (The purpose of the move was to silence publication of the evidence of climate change effects on crop yields.) But a new generation may be recruited that is interested in bettering our lives. That will take many years. The same is likely true of many other agencies.

By far the most important issue of this election is whether we will elect a party that is dedicated to denying the right to vote to Americans it judges oppose its priorities. Two decades ago, I watched as henchmen in the employ of the George W. Bush campaign stopped the vote recount in Miami-Dade. It was called the “blue blazer riot.” It became a template for the war on voting that we now see across the country, instigated at every level of the Republican Party:

  • The Florida legislature’s successful effort to eviscerate Amendment 4, passed by two-thirds of voters to restore voting rights to ex-felons
  • The census citizenship question, designed to suppress the count and thus diminish fair representation in the House of Representatives
  • The destruction of the Post Office, for a trifecta of purposes: privatize it, delay mail-in balloting, and wreck a daily link between citizens and their government
  • The Supreme Court’s effective repeal of the Voting Rights Act, a decision under which GOP-controlled state governments have purged voting rolls, reduced the number of places citizens can vote and even drop off absentee ballots, and created additional obstacles to the franchise
  • The party’s recruitment this year of lawyers and other volunteers to, respectively, contest votes and challenge individual voters at polling places, the intent of which is to create chaos, delay the count and flip the outcome to the Supreme Court

These are elements of a campaign to destroy fair representation of us, whatever we choose. It is the disease of our time, though it dates to the antebellum defense of slavery: you don’t matter. My vote this year, in part, is a vote for: you do matter; you get to have a voice in government, even if I disagree with you. That alone is why I’m voting for Biden.

Oh. And because he wears a mask in the middle of a pandemic.

Posted in election campaign, Joe Biden, presidential election 2020, Uncategorized, Voting Rights Act | Tagged , | 1 Comment

The lies our textbooks told us

Screen Shot 2020-08-12 at 10.27.20 AMA link to The Washington Post version of my post on the Virginia government’s effort to rewrite history. Published in the Sunday opinion section on August 2, it drew more than 1900 comments. My sampling suggests people were inspired to write: “This was my experience.”


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Exhuming history, exposing lies

As I watched Richmond city workers, surrounded by cheering protestors, remove a hundred-year-old towering bronze of Stonewall Jackson on horseback from its base on Monument Avenue, tears streamed down my face. On the 157th anniversary of the Battle of Gettysburg, I thought of my Virginia history textbook that described slaves as contented servants.

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Virginia: History, Government, Geography (1956), Charles Scribner’s Sons, the seventh-grade text

Virginia History was disseminated in 1957, and Mrs. Stall issued it to me in fourth grade, 10 years later. I’ve been studying Virginia history ever since, fortunately in a scholarly atmosphere that developed alongside the Civil Rights movement. We have been intermittently dismantling the Lost Cause myth all my six decades; the pace is accelerating in this George Floyd moment. Some friends object to the removal of monuments, confusing them with “history.” This Fourth of July, I describe some of that history, beginning with textbooks.

In 2009 Adam Wesley Dean, then a doctoral candidate at my alma mater, the University of Virginia, and now a professor at the University of Lynchburg, published “Who Controls the Past Controls the Future: The Virginia History Textbook Controversy,” in The Virginia Magazine of History and Biography (Volume 117 No. 4). His title is borrowed from Orwell, and his essay reviews the state’s propagation of a lie.

For the middle third of the 20th century, Virginia’s leaders were of the political machine of Harry Flood Byrd Sr., governor 1926-1930 and senator 1933-1965. The Byrd machine was alarmed by President Truman’s 1948 integration of the armed forces. In 1950 the Virginia History and Government Textbook Commission took control of the curriculum from local school boards, choosing the writers and supervising the final drafts sent to publisher Charles Scribner’s Sons. In exchange, Scribner sold the books to every public school in the state for three grades: fourth, seventh and 11th. Students were taught essentially the same mythical narrative.

The commission’s lead historian for the seventh-grade edition was Francis B. Simkins, a professor at Longwood College in Farmville. In his 1947 book, The South Old and New, Simkins wrote that slavery was “an educational process which transformed the black man from a primitive to a civilized person endowed with conceits, customs, industrial skills, Christian beliefs, and ideals, of the Anglo-Saxon of North America.” During the Civil War, the slaves “remained so loyal to their masters [and] supported the war unanimously.” During Reconstruction, “blacks were aroused to political consciousness not of their own accord but by outside forces.”

Spotswood Hunnicutt, one of Simkins’s co-authors, believed that as a result of post-bellum interpretations, students were “confused” that “slavery caused a war in 1861.” The commission, she said, was “looking after the best interest of the students.” The “primary function of history,” she concluded, was “to build patriotism.”

In Adam Dean’s summary, my book (I remember its illustrations) gave this lesson on slavery and the war:

“[T]he Northern people did not need much help to work their small farms. The planters in Virginia and in the South needed many men to work them. They had slaves to do their work.” In terms of secession, Virginia’s History alleged that “the people of all the states had certain rights under the United States Constitution, but the people in the South believed that their rights were being taken away from them [and they decided] to leave the United States and start a new nation.” . . . “General Lee was a handsome man,” who “sat straight and firm in his saddle. Traveller stepped proudly as if he knew that he carried a great general.” Even though the “Confederate armies won many battles . . . they could not win the war.”

The courts intervene

As the textbook commission went about writing the Lost Cause narrative, reality was intruding on two fronts, one of them in Simkins’s and Hunnicutt’s hometown. Farmville students went on strike over unequal facilities in spring 1951 and filed a lawsuit in October. The students, led by Barbara Johns, lost in trial court, but Dorothy Davis v. County School Board of Prince Edward became one of the five cases consolidated in the Supreme Court’s Brown v. Board of Education of Topeka.

After the students’ Brown victory in 1954, the Virginia governor appeared to accept the court’s unanimous decision outlawing school segregation. But Byrd decried it as unconstitutional and coined the term “Massive Resistance.” The details, if you didn’t live in Virginia in the 1950s, seem incredible: a state government enacting laws to close schools. Most of the state’s newspapers participated in an allied effort coordinated by the editor of the Richmond News-Leader, James J. Kilpatrick, later made famous by a slot on 60 Minutes opposite Shana Alexander (and even more so by Dan Aykroyd’s parody with Jane Curtin on Saturday Night Live: “Jane, you ignorant slut”).

In the wake of Brown, publication of the textbooks was delayed. Adam Dean writes that Attorney General J. Lindsey Almond Jr., who described himself as “the most massive of all resisters,” was invited to edit the seventh-grade text. Voters elected Almond governor with 63 percent of the vote in 1957, the year the textbooks arrived in classrooms.

Citizen and business discontent with Massive Resistance grew from the start, but it only  collapsed in 1959, when federal and state courts ruled on the same day that closing public schools was unconstitutional. Arlington and Norfolk quickly admitted Black students, but other districts slow-walked integration long after the Supreme Court ruled against Prince Edward County again in 1964.

With enactment of the Voting Rights Act, Virginia politics began to shift. Mills Godwin won election as governor in 1965 promising more progressive policies on race. But the State Board of Education held firm, renewing the textbooks in 1966 for another six years despite growing criticism among educators and in Congress and other states. In 1968 the board – whose president Lewis F. Powell Jr. would become a Supreme Court justice three years later – proposed a unit in “citizenship education” emphasizing “the rule of law, now so gravely endangered by crime, disorders, extremism and disobedience.” The board’s proposal, according to an AP story, alleged that “there is abroad in this country an escalating unrest which has led already to unprecedented crime, discord and civil disobedience. If unchecked, this unrest will lead to revolution and the end of all freedom.”

By the time the board’s six-year renewal of the books expired in 1972, Powell’s view was in retreat. The month he was sworn in as a justice, the board voted unanimously to withdraw the books. Yet they remained: Pat Lang, a McLean mother, protested about my fourth-grade text in a letter to The Washington Post in October 1977. That damned book was in circulation for a generation of children.

The scholars begin digging

It’s not as if Virginia leaders and academics hadn’t known better from the start. Alongside the political realm arose a new scholarship, and it started at U.Va.

Months after the Supreme Court delivered Brown, C. Vann Woodward, an Arkansan educated at Emory, Columbia and the University of North Carolina, delivered a series of lectures before an integrated audience in Charlottesville. The lectures became his first book, The Strange Career of Jim Crow. A decade later Martin Luther King Jr. called it “the historical bible of the Civil Rights Movement.”

In a 2000 remembrance published in the New York Review of Books, Woodward protégé David Brion Davis, perhaps the nation’s most prominent scholar of slavery, wrote of Woodward:

He led the way in desegregating the history of his native South and in demolishing a deeply rooted mythology that dominated white Americans’ views of race relations from the end of Reconstruction in 1877 until the 1950s and 1960s – a mythology endorsed by many leading historians and popularized by novelists and filmmakers in, for example, Birth of a Nation and Gone with the Wind.

Negro slavery, according to this mythological tradition, had been a mild and benign means of civilizing African savages. Slavery would have evolved into a more productive and less authoritarian system of peasantry had there been no Civil War, a wholly “repressible conflict” ignited by extremists on both sides. The subsequent Reconstruction, with carpetbaggers and clownish blacks running corrupt state legislatures, had been a grotesque circus, moderately and often humorously checked by the Ku Klux Klan, until “the Redeemers” restored white supremacy and a reasonable system of “separate but equal” Jim Crow.

Woodward’s scholarship continued in Origins of the New South, the greatest influence on my view of our political history since I read it in my final term at Virginia. Within the book was his doctoral dissertation on Thomas E. Watson, an 1890s Georgia Populist who tried to unite rural Americans across race and class and advocated the franchise for Black men. Reading Watson’s turn to nativism and racism after 1900, I thought then that the South got what it deserved: decades of economic and political underdevelopment. The region could have led the way to a more perfect union: a multi-racial, multi-class movement challenging the power of the cartels that ran the economy to the detriment of working people. But as people are wont to do, they fell for racial and cultural divisions incited by demagogues.

Thirty-nine years later, on the 244th anniversary of the document articulating Thomas Jefferson’s self-evident truths, the monuments to a racist past are tumbling, Mississippi has retired its flag, and corporate partners have finally informed Dan Snyder that his NFL franchise’s nickname harms its economic value.

Next stop: Charlottesville, where during neo-Nazis’ defense of a statue of Robert E. Lee three summers ago, a white-supremacist rammed his car into a crowd of counter-protestors, killing Heather Heyer. The president’s defense of white supremacists three days after Heyer’s death – “very fine people on both sides” – remains the nadir of his dismal poll numbers.

For every action. . . .

Still, four months from election day, Donald Trump went to Mt. Rushmore, a site with its own complex history, and claimed in language recalling Harry Byrd and Lewis Powell:

Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values and indoctrinate our children. Angry mobs are trying to tear down statues of our founders, deface our most sacred memorials and unleash a wave of violent crime in our cities.

No, Mr. President. Though you may wish to confuse factions acting and reacting in the streets, your protestors are exhuming history. It doesn’t reverse the division you have promoted, but it may set a foundation for a new birth of freedom.


Stonewall Jackson base, Richmond, July 1. Photo: Brian Ross Cannon


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On becoming a nearly-senior citizen

OLYMPUS DIGITAL CAMERAToday I turn 62. A birthday is a moment for reflection, especially when on this one the government asks, “Would you like a smaller pension now, or a bigger pension later?” And I mull: How much longer is Social Security – and this civilization – going to be here for me?

2020 has been interesting, and it’s only the summer solstice. The shocks are accelerating: COVID, economic collapse, George Floyd. I’m confident that more shocks will arrive before November 3, and after. We appear on the verge of a coming-apart socially and politically that is the result of our choices: the decline of education and the willingness to engage in the slog of self-government; a corrupt campaign-finance system in which officials bow to the private interests they are charged with overseeing; and a ruling political party bent on depriving its perceived opponents of representation. We don’t even have the discipline to deal with a pandemic when we know how to suppress it. All that’s bad enough, but these are temporary problems. The critical one we ignore.

The nature of capitalism is in the expression of the urge to exploit. Exploiting people is not an existential problem, as there have always been more people, and outside our tribes we don’t care about them. (The federal government gives pennies for social welfare and foreign aid.) But exploiting the shrinking natural resources of the planet, and showing zero inclination to reverse course, sets us up for a cataclysm. Soon.

Because of our optimism and awareness of a few thousand years of scientific progress, we assume we’ll devise solutions to forestall disaster. But climate change is only the consequence of our addiction to more. Whether we have a lengthy Soylent Green or Blade Runner or 12 Monkeys, who knows. The science is: We are about to have a die-off from the change already baked in. When author Dahr Jamail came to Powell’s Books to read from The End of Ice, I asked him: What did his source-scientists estimate to be the earth’s sustainable population? They wouldn’t say, but his own is about 1 billion people. (The planet will survive, and Mother Nature won’t skip a beat.)

Two birthdays ago, I traded the nation’s capital for Portland, Oregon, to escape the political pool in which I had swum since childhood for the beauty and the vibe of the Pacific Northwest. Of course, I’m still political, I just left the Majors for Triple A, where leaders as a whole also have their heads in the sand. Oregon’s problems are different. I sense a scarcity mentality, perhaps stemming from its frontier-extractive heritage, now depleted. D.C.’s mentality is ambition to suck at the always-flowing teat of the federal government. But Oregon too has its teat: big business depletes the state’s natural resources – timber and water – and pays nothing for the privilege, thanks to an immobile legislature.

That’s American capitalism: privatized profits and socialized costs. In the case of ancient forests, converting them into plantations unleashes consequences we understand: the destruction of the ecosystems on which all life depends.

That California and Washington have better environmental regulations and tax laws to hold the rape of the land in check is beside the point. None of these practices is sustainable. Half the world’s forests have been destroyed since Wisconsin’s were mowed down to build Chicago, a nanosecond in the planet’s timeline. By the end of the century, at least half of what remains will be erased. Look at satellite images of the Northwest, or the Amazon, or Indonesia, or Siberia.

Though I’m disturbed by what we the people have manifest in Donald Trump the personality, which pumps enthusiasm or disgust, he doesn’t matter. Yes, he is the Great Accelerator, pushing us toward the environmental edge. But we’ve known we were headed there for 40 years, and we’ve elected one government after another that either did nothing or nibbled at the edges.

Here in Oregon, Republican legislators have walked out of the Capitol the last two years to prevent ruling Democrats from obtaining the simple majority required to pass a modest cap-and-trade bill. Their constituents, who rely on either extraction or government subsidies, think climate change is somebody else’s problem.

Mt. Hood, 49 miles from my neighborhood, is still covered in snow year-round. I would be fortunate to have it be among my final views.

Meanwhile, I’m uncertain what to do about my pension option, though as part of the richest generation in world history – the (white) American boomers – the question is academic. But I’m under no illusion that our stewardship of this blue marble will work out well for my 20-something children.

Posted in climate change, Uncategorized | 5 Comments

Snapshots of a myth


The five-story bronze of Robert E. Lee on Monument Avenue in Richmond, erected in 1890, with graffiti inspired by the murder of George Floyd. A temporary injunction has blocked Governor Ralph Northam from removing it.

Defenders of statues of Confederate generals and soldiers contend these monuments should not be removed, ever, because they are “history.”

Monuments have nothing to do with history. They are snapshots of a narrative. My favorite monument-narrative is the Lincoln Memorial. On its walls are chiseled the Gettysburg Address and the Second Inaugural, the two greatest speeches in American history, one of which includes the single greatest sentence in American history.*

But the Lincoln Memorial is not history. It is a way to tell a story, a story intrinsic to our national experience.

What statue of a Confederate general tells a story? None. All are monuments to a myth. Propaganda. We might put them in museums, along with a narrative:

This statue was mounted on a notable boulevard in order to further a myth about a “lost cause”: slavery, the practice of buying and selling human beings as commodities, part of an economic system, enforced by violence, that built this country over its first 250 years, and one that continued in a similar form for another 100 years. At the heart of the system was the production of cotton, financed by Northern banks and spun in Northern and English factories by exploited labor. At the heart of cotton was slavery.

The purpose of this statue, commissioned when leading white politicians and businessmen all over the country were members of the Ku Klux Klan and other racist organizations, was to remind the descendants of slaves that, despite the 13th, 14th and 15th amendments, we honored those who fought to preserve slavery, to “put them in their place,” as was commonly said for a hundred years. It is a shameful era.

Finally, in the spring of 2020, We the People – prompted by an outpouring of rage over regular police killings of black people, generally the descendants of slaves – decided it was time to recognize what these symbols mean: white supremacy.

This exhibit is brought to you by Conglomerate Z, a successor corporation to the American slave trade.


*”Yet, if God wills that it continue, until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’ ”



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The twilight of LGBT discrimination

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Rep. Howard W. Smith authored the provision outlawing sex discrimination in employment

The June 15 Supreme Court decision in Bostock v. Clayton County (Georgia) has a sweeping logic that, if applied to other areas of law, will mean the end of legal discrimination against people who identify as LGBTQ.

Justice Neil Gorsuch, in his 6-3 opinion, applies a plain-text reading to the employment title of the 1964 Civil Rights Act: Identifying as LGBT arises out of sex, and employers can’t discriminate on the basis of sex. Disparate treatment on account of any condition of sex is illegal. Disparate treatment of an individual, even if as groups an employer treats men and women equally, is illegal. An employer can’t engage in disparate treatment even if it’s only one of multiple reasons cited for that treatment.

All Justice Gorsuch had to do, he wrote, was read the words. The 1964 Civil Rights Act, written largely by the Justice Department under Attorney General Robert Kennedy, bars discrimination primarily applying to “race, color, religion, or national origin,” in particular in voting; or in the use of public accommodations, government facilities (on any level) or public schools; or in any program or activity receiving federal funding. The Kennedy proposal responded to the confrontations with Southern states in the 10 years following Brown v. Board and the weaknesses of the 1957 Civil Rights Act.

But Title VII alone also bars discrimination in employment on account of sex. The law makes it unlawful:

“. . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“Sex” was famously proposed by House Rules Committee Chairman Howard W. Smith. (The Rules Committee is where bills are assigned a procedure governing floor debate; the committee approved the addition as a floor amendment.) Historians aren’t clear why Smith added it, though some believe it was an effort to sabotage the bill; Smith, a Virginian in the House since 1931, was a segregationist. But the politics were complicated; Smith was a long-time proponent of the Equal Rights Amendment and fairness for (white) women, and the AFL-CIO preferred a leg up for its members – men.

In Bostock, the Trump administration joined three defendants in the consolidated case, employers who had fired two gay men and another man who, after six years as an employee, announced his intention to live as a woman. The Justice Department argued that “sex” didn’t apply to orientation or identity. Or, as Gorsuch summarized in his opinion, something other than “status as either male or female (as) determined by reproductive biology.” Gorsuch swept away their distinctions and arguments over 50-year-old interpretations of “discriminate” and “sex”: “An employer who fires an individual merely for being gay or transgender violates Title VII.”

Trump officials have written or rewritten agency rules to allow discrimination against LGBT persons in a range of areas. Last week the administration finalized a rule that repealed an Obama administration prohibition, pursuant to the Affordable Care Act, on discrimination in the provision of health care.

If the court’s opinion is applied to these other areas, then all those efforts will fail sooner than they would under a Biden administration, or any other.


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Will Florida end this battle against voting?


Desmond Meade (left), head of the Florida Rights Restoration Coalition, which authored Amendment 4, with me at a 2018 conference in Virginia

The saga of the restoration of the voting rights of Florida ex-felons continues, but it may be nearing an end. The crux of Federal District Judge Robert Hinkle’s May 24 opinion in Jones v. DeSantis, about the legislature’s attempts to overrule the voter-approved Amendment 4 to the Florida constitution:

“This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.”

Which is to say, for those without money, Florida’s latest poll tax has been struck down.

I’ve been writing about the theory and politics of felon disenfranchisement for a while. Nowhere has the issue been more consequential nor litigated than in Florida, which since Bush v. Gore has been the ground zero of voter suppression. Governors Jeb Bush and Charlie Crist eased franchise restoration; Governor Rick Scott squelched it. Then the citizens got involved.

In 2018 Florida voters, by nearly 2-1, passed an amendment to the state constitution. Under Amendment 4: “[A]ny disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” (Murder and felony sexual offense were excluded.)

Despite the mandate, Florida’s GOP-dominated legislature set about to undo it, passing on party-line votes in the House and Senate SB7066, which defined “all terms of sentence” to include “any portion of a sentence that is contained in the four corners of the sentencing document,” including the payment of court-imposed fines, fees and restitution.

What’s at stake? As of 2016, nearly 1.5 million ex-felons in Florida couldn’t vote. At issue are those who could get the vote but for SB7066. That is 774,000, estimates the Campaign Legal Center, which brought one of five federal lawsuits in the days after Governor Ron DeSantis signed the bill last June.

In August DeSantis requested an advisory opinion from the state supreme court on the “legal financial obligations” (LFOs) added by SB7066. The briefs contested the meaning of the “four corners” and the voters’ intent.

(Note: In Florida and elsewhere, hundreds of dollars in court fees (plus interest) are routinely imposed as a means of funding government that have zero to do with the crime. If you’ve lived where court fees are added to the price of contesting a traffic ticket, you get this.)

In January the Florida Supreme Court opined that conditioning of the right to vote on payment of costs was consistent with Amendment 4. Advised the court, “[T]he phrase ‘all terms of sentence’ . . . has an ordinary meaning that the voters would have understood to refer not only to durational periods but also to all LFOs.” (The governor didn’t ask what “completion” might mean, and the court didn’t say.)

Dissenters included the Harvard Law Review:

[The supreme court] improperly relied on tools of interpretation adapted to understand legislation drafted and passed by professional legislators, not ordinary citizens.  Rather than focusing on what the plain meaning of “completion of all terms of sentence including parole and probation” would be to an ordinary citizen, the court turned to technical tools like the Florida Rules of Criminal Procedure and Black’s Law Dictionary to define “sentence.” In so doing, the court ignored the noscitur a sociis canon [in legalese, the context] and the reality that laypersons are likely to think of penalties related to time and confinement when the word “sentence” is placed in the context of “parole” and “probation” – not court fees.

Meanwhile, the federal lawsuits, consolidated as Jones v. DeSantis, contended that SB7066 violated the First, 14th (due process and equal protection) and 24th (poll tax) amendments to the Constitution. In October Judge Hinkle issued a preliminary injunction against enforcement of SB7066, finding that DeSantis was unlikely to win on the merits.

DeSantis appealed, and in February the 11th Circuit upheld Hinkle’s preliminary injunction. It reasoned that Florida was imposing a condition based not on the crime but the ex-felon’s ability to pay. That, the Circuit said, violated Equal Protection: two identically situated felons who completed their sentences could not have their right to vote determined by their ability to pay money imposed at sentencing, and that amounted to a poll tax.

On May 6, at the conclusion of the eight-day bench trial (conducted by conference call), Hinkle surprised no one when he announced that the state had erred. The evidence showed that Florida has no way to track whether ex-felons have costs within the “four corners” or have paid them. The record reads like Kafka. Wrote the judge: “The State has shown a staggering inability to administer the pay-to-vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.”

Hinkle’s 125-page opinion incorporates the 11th Circuit’s reasoning. Under his order, the pay-to-vote system is unconstitutional:

  • for “individuals who are otherwise eligible to vote but are genuinely unable to pay”
  • to the extent that “the amounts that are unknown and cannot be determined with diligence”
  • because the costs “are, in substance, taxes”

But for those who can pay, the requirement to pay a “determinable amount” is not unconstitutional. (We’ll see whether Florida can determine amounts.) Thus Hinkle didn’t void the entire law.

The order establishes procedures by which ex-felons can seek information on any fees owed and, absent a supported statement from election officials, register to vote in 21 days.

“At least on its face, Amendment 4 was self-executing,” Hinkle wrote. But if the legislature’s intent to disenfranchise were ambiguous, the state argued that if the court were to strike the LFO condition, then the rest of Amendment 4 should be voided. Hinkle responded:

The State makes the rather remarkable assertion that if it cannot prevent people who are unable to pay LFOs from voting, then all of Amendment 4 must fall – that even felons who have served all their time, are off supervision, and have paid all amounts they owe cannot vote. This is a breathtaking attack on the will of the Florida voters who adopted Amendment 4.

Breathtaking. Unless one has reviewed 150 years of disenfranchisement efforts, as I did in my letter to Governor Scott five years ago. The state may declare a cease-fire, or it may continue this particular battle in a long war. It’s up to Governor DeSantis, but in this skirmish he had no bullets.

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‘That government is best which is most indifferent’

Screen Shot 2020-05-05 at 9.31.38 AMIn their book, Deaths of Despair and the Future of Capitalism, Ann Case and Angus Deaton study the rising premature death rate from suicide, drug overdose and alcohol liver disease. Four findings:

  1. The rate has steadily fallen over 30 years in comparable Western countries (U.K., France, Australia, Switzerland, Canada, Ireland, Italy). It’s also fallen for U.S. Hispanics. But not for U.S. non-Hispanic whites.
  2. The rate is steady among Americans with at least a B.A.; it’s rising for those without.
  3. The younger the cohort, the worse the rates.
  4. Compared to other countries, the U.S. spends more on health care and has worse outcomes.

Case and Deaton on May 4 presented for an hour on Zoom through the Economic Policy Institute, a D.C. think tank. The following four charts are my screenshots from their talk.

1 Age-adjusted by country - white and hispanic

2 US white deaths by cause - BA

3 Mortality by year of birth

4 Comparable countries

Among their conclusions:

  1. Employer-based health insurance is destroying our economy. Because it costs so much – about $21,000 a year for family coverage – employers will cover fewer and fewer workers over time. It only makes sense for them to offshore production.
  2. The government must rethink anti-trust law in the face of hospital mergers, which have driven up the prices of health care. (I would add that the failure of the Justice Department to pursue antitrust might not matter, because the Supreme Court has been dismantling antitrust law for 30 years.)
  3. The “health-care” industry has five lobbyists for every member of Congress, reflecting the absence of any effective campaign finance limits (thanks to congressional opposition and Supreme Court interpretation). The interests of labor have neither effective representation nor a sympathetic ear in Washington.

These interlocking political realities are having the greatest effect on the Americans described in the charts. They are dying prematurely, Case and Deaton write, from the loss of work, loss of community, loss of family cohesion. They are also, based on the authors’ study of the country analyzed by one thousand geographic areas, Trump’s base.

The Republican Party, which has held the presidency and/or effective control of Congress for 36 of the last 39 years, has worked to undermine the interests of that base while catering to a shrinking class of the wealthiest.

So, the next inquiry: Whose interests are behind these COVID-19 protests against shut-down orders intended to protect public health? As has been reported, the network of right-wing funders who created the tea party are doing the same once again. In both cases, and in the litigation initiated by GOP state attorneys general asking the Supreme Court to void Obamacare, one of the goals is to destroy government-financed health care.

As a practical matter, I cannot understand how it serves a reactionary elite to eliminate a fragile leg of support from millions of voters. I suppose it is reflexively fighting the same battle it has waged for a century.

On the eve of his reelection in 1936 (the second-largest contested reelection margin in history), Franklin Roosevelt addressed the choice facing voters. Starting with the election of 1920, through the 1929 crash and the three years of government inaction that followed, Roosevelt said:

For twelve years this nation was afflicted with hear-nothing, see-nothing, do-nothing government. The nation looked to government but the government looked away. Nine mocking years with the golden calf and three long years of the scourge. Nine crazy years at the ticker and three long years in the breadlines. Nine mad years of mirage and three long years of despair. Powerful influences strive today to restore that kind of government with its doctrine that that government is best which is most indifferent.

History does not repeat. But it rhymes.

Posted in Obamacare, Supreme Court, Uncategorized | 1 Comment

An opportunity to enrich the opportunistic

Published March 30, 2020, in Tax Notes Federal, weekly magazine of Tax Analysts Inc., where I was a reporter and editor in the early 1990s.

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Rendering of the Ritz Carlton hotel/condo/retail skyscraper under construction in Portland (GBD Architects)

This is a story about billionaires, how Congress makes laws, how city development officials work with rich people to ignore poor people, and how legislative dysfunction has spread from the nation’s Capitol to Oregon’s Capitol.

One of the billionaires is Sean Parker.

When Parker was in high school, the FBI raided his parents’ house, carting away his computer, from which he’d been hacking into systems around the world. At 19, he cofounded Napster, the music “sharing” service that unraveled on copyright violations. He negotiated Mark Zuckerberg’s permanent control of Facebook’s board with its initial investors. His friends tell reporters he’s nothing like Justin Timberlake’s dark and greedy portrayal in the 2010 movie The Social Network. He is an autodidact, a serial entrepreneur, and a philanthropist among the world’s elite.

With fellow investors, he founded a section 501(c)(4) advocacy organization, the Economic Innovation Group. From 2015 to 2017, EIG spent $2.88 million on lobbyists advocating a tax incentive labeled “Opportunity Zones.” When President Trump pushed Congress to pass a tax bill in December 2017 with no hearings and no deliberation, the provision’s proponents realized their opportunity.

Among Parker’s talents is the ability to recognize the commercial/political potential of someone else’s idea. Opportunity Zones are an old concept: tax incentives for geographically targeted private investment, intended to create economic activity in “distressed communities,” defined by certain poverty criteria. As Forbes put it in marketing an investor conference last May, Opportunity Zones aim “to unlock transformative economic potential and create lasting change in America’s overlooked communities.”

Jack Kemp, HUD secretary to George H.W. Bush and quarterback for the Buffalo Bills in the 1960s, made “enterprise zones” the first of these place-based tax incentives. In politics, Kemp was known for two things: championing low taxes for the wealthy (as a congressman he co-authored “Kemp-Roth,” which became Ronald Reagan’s 1981 tax cut), particularly capital gains; and being a rare GOP advocate for decaying urban cores and their predominantly black constituencies, a sensitivity that perhaps grew out of playing pro football. Enterprise zones tied his passions together.

The birth of ‘Enterprise Zones’

I was congressional correspondent for Tax Analysts when Kemp was HUD secretary, and I was present at the 1992 GOP Convention when the quarterback brought along as props his (black) linemen for a press conference in the Astrodome to push his idea, which at the time was being written into a bill responding to the Los Angeles riots that spring. (Bush vetoed the bill for unrelated reasons, and Bill Clinton signed one that included enterprise zones in 1993.)

In Kemp’s time, white people were still in the suburbs, where they had built well-funded schools and services, and their kids hadn’t begun streaming back into the cities.

Economic literature developed since shows that enterprise zones and the like have done nothing to help distressed communities and the people who live in them. As the Heritage Foundation concluded in July:

Academic and government studies consistently show place-based development programs fail to increase employment, raise wages, or advance general economic opportunity for targeted residents because they have not addressed the main causes of poverty.

What do they do? Accelerate gentrification.

The why is economics: Where government showers a benefit, the market prices it. If a particular square mile is bestowed tax or other monetary advantages, the value will pass through to the owners of that square mile. That is, the price of land within that mile will rise to absorb the difference in economic value between it and the surrounding area. So the businesses or homes within that favored mile will face higher property values and therefore higher rents. If you’re a business leasing space in a zone making widgets, your profit margin gets squeezed compared to the widget maker on the other side of the line. If you’re a renter, your apartment is now sitting on higher-value land, and your rent goes up — or the building gets renovated or replaced, for renters or buyers who can pay more.

The economics must be irrelevant to Congress. Twenty-five years later, the myth still holds about alleviating poverty or stimulating job creation — which perhaps is why some, like Sen. Cory Booker, D-N.J., believe tax incentives can revitalize cities like Newark. Or maybe he’s so desperate for a tonier skyline that he’s up for anything.

But Opportunity Zones are really about tax breaks for Parker, who told a Treasury-sponsored conference in August, “When you are a founder of Facebook and you own a lot of stock, you spend a lot of time thinking about capital gains.” Or as Forbes the magazine (distinct from the conference sponsor) headlined a story in July 2018: “An unlikely group of billionaires and politicians has created the most unbelievable tax break ever.”

So let’s return to the Opportunity Zones Congress authorized in 2017.

The rush to identify Opportunity Zones

Section 1400Z-1 gave the nation’s governors 90 days to designate as Opportunity Zones a portion of the census tracts whose poverty criteria were defined in another tax code version of enterprise zones called the new markets tax credit, in section 45D, created in 2000. Governors did so, guided by instruction (H. Conf. Rep. 115-466 at 538) that the tracts had demonstrated success under other federal or state incentives. In May 2018 Treasury certified the governors’ 8,700 zones throughout the country. (Corruption has been alleged around at least one of Treasury’s certifications, in Storey County, Nevada — which may be intrinsic to the story.)

Opportunity Zones have two types of tax incentives under section 1400Z-2. The first allows investors to sell assets, such as stock or other property, deposit the proceeds into a qualified opportunity fund (QOF) and defer the capital gain tax they would otherwise owe until 2026. In 2026 investors get a discount on that tax.

The second incentive applies to the investment in the QOF: If held in a fund for 10 years, the capital gain at sale is tax-free.

Example: I own $1,000,001 in Facebook stock that I bought for $1. Yesterday I sold the stock and put my million-dollar gain in a QOF. The capital gains tax rate is 23.8 percent, so in 2026, I will pay tax of $238,000, less a 10 percent basis increase. Had I sold the stock before 2020, my basis increase is 15 percent. But I didn’t because I’m not in-the-know like Parker, so I’ll pay $214,200 in 2026, whereas Parker will pay $202,300.

Now my million dollars are in a QOF, the financing vehicle for projects in Opportunity Zones. Wherever I invest it — and there are QOF projects all over the country — I can’t touch it for 10 years, so it better project a great return, otherwise I’d do better in something without that restriction (or not realizing the gain in the first place). The stock market produces returns of 7 to 10 percent and investment-grade real estate of 10 to 12 percent, to account for its relative illiquidity.

Thus, I’m eyeing Opportunity Zones that are likely to double in value — places where the population is booming and land is tight, but that have empty lots or land whose price is cheap but likely to get expensive. If I don’t have a big capital gain, I lose. The investment works only if my tax-free gain exceeds the returns from other options.

‘Tax Breaklandia’

As it happens, I live near downtown Portland, which is one of the hottest real estate markets in the country. (Bloomberg BusinessWeek in February won a George Polk Award for its 2019 story, “Welcome to Tax Breaklandia.”) And it’s all in Opportunity Zones, because the governor picked these census tracts that met the requisite poverty criteria (as of the 2011-2015 Census Community Survey).

Portland is hot because people are flocking here. Projects have been in the works for a while. And thanks to the looseness with which Congress and Treasury wrote the rules, a bunch of them essentially sold themselves into new entities to exploit the Opportunity Zone tax breaks. These skyscrapers, their financiers proclaim, include Oregon’s first five-star hotel/condo — with units expected to sell for $1.9 million to $6.5 million — and the most luxurious apartments in town.


Below the Portland skyline and I-405

What’s that do for the poor people who live downtown? Push them out to cheaper land, like the sidewalks, bike trails, and highway cloverleafs where Portland’s growing homeless population somehow survives.

Some citizens I work with recognized this outrage — tax breaks for people rich enough to have significant reportable capital gains (perhaps 5 percent of taxpayers) sold as help for the downtrodden — and the threat it poses to Oregon’s general fund. We couldn’t influence Congress — where our senator, Finance Committee ranking Democrat Ron Wyden, has a bill, S. 2787, to tinker around the edges of Opportunity Zones. But maybe we could reason with the state legislature.

When Congress passed the law, the Joint Committee on Taxation estimated Opportunity Zones would cost about $1.6 billion a year through 2025. In 2026, when the deferral period ends, the government would recover about two-thirds of its losses, but then in 2027, the losses would accelerate. Because the JCT only estimates the cost of tax provisions for 10 years, it had no estimate for year 11, when tax-free capital gains on QOF investments kick in. (If you think this design was accidental, you haven’t watched Congress write tax law for 30 years.)

Oregon conforms to federal income tax benefits by default. If Congress does it, Oregon does it, unless the legislature “disconnects.” (California and two other states are nonconforming, and nine states, including neighboring Washington and Nevada, lack personal income taxes and so don’t offer Opportunity Zone benefits. North Carolina disconnected in 2018, and in Maryland a bill has passed the House.)

The legislature’s economists extrapolated from the JCT’s estimates a revenue loss of about $8 million a year in the current biennium, about 0.5 percent of the JCT estimate. In December the JCT doubled its estimate, to $3.5 billion a year. Oregon, by that scale, is now out $35 million per biennium, with no guess for the out-years. QOFs are an unmeasurable liability.

A citizens campaign

My watchdog group, Tax Fairness Oregon, tried and failed to get the legislature to disconnect in its 2019 session. In October we began assembling a coalition of unions and civic and policy organizations, and over the next four months met with about three-fourths of Senate and House members. The chair of the House Revenue Committee, Nancy Nathanson, became a champion. When the legislature convened February 3, Nathanson introduced a bill to deny Oregon investors the state’s income tax break on all QOF benefits — the deferral, discount and 10-year, tax-free gain. (Most Oregonians, as the legislature’s economists recognized, will invest wherever they can maximize returns, and not in Oregon.)

Portland’s state representatives supported disconnection, seeing that the benefit went to millionaires financing construction that would occur anyway, especially when we documented that several projects, including the hotel/condo and the apartments, had reorganized themselves to get the tax advantages.

Many Republicans, representing rural areas, saw that little investment would come to their districts because what makes Opportunity Zones work is scarce land in growing markets, but they were reflexively anti-tax. The House Republican leader, Christine Drazan, was intimately familiar with the issue and critical of the bill when we met. Her husband, Daniel J. Drazan, is a real estate lawyer in an Oregon firm, Dunn Carney. One of his partners submitted a six-page letter opposing the bill on behalf of 44 interests, naming 10 Dunn Carney lawyers — but not Daniel Drazan.

Officials in Washington County, much of which is a booming Portland suburb and home of Nike and an Intel campus, cried that development would be in jeopardy without the state subsidy. Some Washington County representatives — all Democrats — heeded their pleas.

Short of votes despite Democrats’ 38-22 party advantage, Nathanson wrote a substitute that would allow Oregon investors to keep the deferral and the 2026 basis increase, but cut the 10-year exclusion in half. Thus, taxpayers under the original bill would have paid Oregon’s top tax rate of 9.9 percent in 2026 and 9.9 percent on any gain upon sale of QOF investments after 10 years; under the substitute they would effectively pay only 4.95 percent on sale of QOF interests.

More importantly, the substitute would require QOFs in Oregon to report to the state the particulars of their investments — the only granular reporting requirement anywhere in the nation of which we are aware. Treasury’s final rules, issued in December, don’t require QOFs to disclose information that would allow study of the provision’s effectiveness.

Nathanson’s substitute was voted out of committee and scheduled for a final vote on the House floor February 25.

On February 24, Senate Republicans walked out of the Capitol to deny the chamber a quorum. The senators were protesting a bill creating a cap-and-trade system for carbon emissions — the same issue that spurred their walk-out in 2019. The next day, as the Opportunity Zone bill was scheduled in the House, the GOP walked out of that body.

Under the state constitution, the legislature requires a two-thirds quorum for business, and the GOP holds just over one-third of the seats in both chambers. The walk-out can work because the constitution also requires the legislature to adjourn its even-year short session after 35 days. That expiration came March 8. All pending legislation died.

I left my career as a federal tax policy analyst in 2014, bored with congressional dysfunction. I moved to Oregon in 2018. It appears that the Potomac virus has reached the mouth of the Columbia, site of Cape Disappointment.


Posted in Congress, Tax, Uncategorized | Tagged , , , , , | 1 Comment

The revolution will not be televised

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I hear the frustration of Bernie supporters. I too am frustrated at the cultural and institutional conservatism that has created a country where the accident of birth determines economic fate.

In 240 years we’ve had a few shifts of the kind candidate Sanders advocates, but not under the circumstances we face now. The first was the 14th Amendment, made possible by a war in which 2 percent of the population died. The arrival of modernity at the turn of the 20th century produced the Progressive Era – led not by the “great commoner” William Jennings Bryan but by Republican Teddy Roosevelt, and it resulted in modest change like the income tax, attention to the environment and the beginnings of labor protections. Franklin Roosevelt was not a revolutionary – he just kept trying things to pull the country out of the Depression, backed by overwhelming Democratic majorities. Lyndon Johnson worked an evolution – but in a time of expansion, when prosperity allowed a generosity of spirit. We answered the moral challenge to which he and the courts called us: extending civil and voting rights and rolling back immigration restrictions that had stood for decades.

One guy with deep but spotty support is not going to get done what we want done. Barack Obama faced a desperate economy, but Mitch McConnell manipulated Senate rules to his advantage – and that was before his caucus fine-tuned obstruction. We face an economy that doesn’t work for tens of millions of people, but we aren’t desperate enough for a Bernie revolution. Maybe if Covid19 kills 2 percent of the population, we will be.

In the wake of his primary loss in Michigan and elsewhere on Mini-Tuesday, Bernie should continue his campaign. He has every right and perhaps the obligation to allow the process to play out and for his supporters to express themselves by the ballot. But at the end of the day, only a united opposition can bring down this incompetent sociopath.

Virginia just completed its first progressive legislative session ever. It ripped out voting restrictions, eliminated barriers to a women’s right to choose, repealed a raft of discriminatory laws, instituted some gun controls, raised the minimum wage, approved environmental restorations, and passed a truly historic redistricting proposal (written by Democrats when they were in the minority and embraced now by Republicans). Civil War monuments will be coming down.

The General Assembly was able to do so because a broad swath of the Democratic Party was repulsed by Trump and worked without pause through three elections to defeat Republicans, erasing a two-thirds GOP majority in the state House and reversing a 7-4 GOP majority in the U.S. House. Last week the state’s Democrats, as representative of the party composition as that of any state, voted overwhelmingly for Joe Biden.

Virginia is a progressive model: a state trending Democratic that a Republican hasn’t won statewide since 2009, partly because the GOP has shrunk its base in embracing Trumpism.

Now is the time for progressives to take what they can get. Let the primaries play out, and then let’s unseat Donald Trump and his Senate Republican majority in the fall. Don’t pull a fucking Ralph Nader.


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