‘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.

IMG_5338

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.

 

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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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As a sunflower bending toward the light

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Kent Ford and children in Albina, 1970, from The Oregonian archives

As horrific as is this moment of our political derangement, I participated in two lectures on Sunday that left me feeling that we will survive, thanks to the example set by two individuals I learned about.

In the afternoon, at a library a mile north of us, Kent Ford reviewed the activities of the Black Panther Party in my neighborhood in the late ’60s and early ’70s. Ford was born in Louisiana and found his way to Albina – my neighborhood – by the time he was 20, and within a few years founded the Panther branch in Portland. The Panthers opened free medical and dental clinics and a breakfast program for kids. J. Edgar Hoover feared the Portland branch enough to sick COINTELPRO on its members, regularly sending Panthers to jail. For a few days.

In 1970, after a decade of planning without any community involvement, Portland and Emanuel Hospital disclosed an expansion plan and evicted residents (and the Panthers) from 55 acres a few blocks south of where we live. What once was a vibrant commercial area in a red-lined neighborhood was destroyed. Emanuel expanded, but it ran out of money, some from federal urban renewal grants, before building on much of the area the city had razed. Today a large swath between Vancouver and Williams avenues could be a city park, but it’s vacant land with some trees and regularly cut grass. The Urban League building remains on what was one corner of downtown Albina.

At the library, Ford was asked what lessons from that moment apply to this one. Now 77 years old, he said, “The struggle is endless.” Ford and his comrades borrowed lessons from King, SNCC, the Panthers in Oakland and Chicago. Just as we do now, online, from groups that start small and mushroom, like Indivisible.

Screen Shot 2020-02-24 at 7.58.11 PMIn the evening we attended a reading of Yellow Bird: Oil, Murder, and a Woman’s Search for Justice in Indian Country, by Sierra Crane Murdoch, who has spent much of the last eight years immersed in the life of Lissa Yellow Bird, an Arikara/Mandan/Hidatsa on the Fort Berthold Reservation in North Dakota. The middle of the Bakken oil boom, the latest white man’s colonization of their lands. Also where the Army Corps of Engineers, 70 years ago, appropriated for a dam Missouri River bottomland on which the Affiliated Tribes farmed. The reservoir, named for Sakakawea, the Lewis and Clark guide who had been kidnapped from her Hidatsa tribe, submerged fields and villages.

Listening to Sierra describe her protagonist, Lissa Yellow Bird, I thought of Kent Ford. The tribes had no more say in what was done to their otherwise ignored neighborhood than residents of Albina did in theirs.

We went to Powell’s because Sierra is the daughter of my childhood pal four doors up the street, Ellen Crane, who flew across the country for the reading. Sierra’s first book was published last week, and the first stop on the tour is Portland, a bit west of where Sierra lives. Everything starts somewhere.

The work continues, now and after Trump has passed from his field of corruption, perversion of justice, and destruction of decades of slow building toward a more perfect union. People like Kent and Lissa and my friends in Richmond and all over the country will get up every day, just like I did today in driving to the Capitol in Salem, and engage in the often frustrating struggle for justice.

Because our work is as natural as a sunflower bending toward the light.

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Woke is not enough

The Reverend Dr. William Barber was in my neighborhood last night.

For those who would like an introduction: Dr. Barber is the pastor of a North Carolina church and former head of the state NAACP. In 2014 he founded Repairers of the Breach, to respond to North Carolina’s suppression of voting rights and funding cuts to education and health care, holding “Moral Monday” rallies outside the statehouse. A 2018 MacArthur Grant recipient, he is reviving Martin Luther King Jr.’s Poor People Campaign.

In my neighborhood, he began with a reading of the opening of the Declaration: that the purpose of government is to secure our inalienable rights to life, liberty and the pursuit of happiness, and that whenever a government becomes destructive to these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness.

He then recited the preamble to the Constitution: We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty establish this government.

The Reverend spent the rest of the hour talking about the ways in which our governments – federal and state – have become destructive to these ends. Among the particulars: that 160 million of us live in poverty or without wealth; that our lands are permitted to be poisoned in pursuit of private profit; that millions lack proper education and health care, and are improperly housed, clothed and fed; and that state governments, countenanced by the Supreme Court, have undermined our right to vote.

He reminded us that when officeholders take the oath, they rush around looking for a holy book upon which to place their hand. But then they forget the directives contained there within.

This is a moment of moral impeachment. We have had them throughout our history, dating to our embrace of slavery 400 years ago, and the creation of a myth that the size of our brains is determined by the color of our skin. That attempt to divide, for the benefit of the Planter Class, continues today. We blame one another rather than those who have abused their power and wealth at the expense of us, the people.

(I insert: The promotion of an ideology of poverty as a moral failure – rather than as a certain result of the system those in power have created – has been a means of keeping the poor in that state for more than a century.)

We may be woke, but that is not enough. We must rise up.

There will be a march in Washington on June 20, 2020. For the first time since I moved away to Portland, I feel inspired to return.

 

 

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Blue Virginia expels the Confederacy

Screen Shot 2019-11-06 at 3.42.35 PMA link here to my column in The Washington Post, the day after Democrats captured both chambers of the Virginia General Assembly for the first time since 1992. And the text for those who don’t pony up for a subscription:

The Confederacy in Virginia is dead. And Donald Trump presided.

Repulsed by the president, a new base of the Democratic Party rose up three years ago. It organized after the Women’s March in the blue suburbs of Washington and elsewhere, got behind a wealth of candidates new to campaigning, and flipped 15 seats in the House of Delegates. Last year it flipped the congressional delegation from 7-4 Republican to 7-4 Democratic. And yesterday it added at least five more House seats and flipped at least two in the Senate, giving Democrats a unified majority of the political branches in the state, which already has a Democratic governor.

Emblematic of the shift was the victory of Shelly Simonds: In 2017, she lost a Virginia Beach seat in the House when the winner of a tie was drawn from a bowl; in 2019, she won with 58 percent and virtually the same number of votes, while the incumbent who defeated her two years ago received 3,500 fewer votes.

Democrats have a very different party from the one that last controlled both the legislature and governor’s office, before 1993. The old coalition of small farmers, blacks and city dwellers is gone. Instead the Democrats are educated, racially and ethnically diverse and women-dominated. They want gun control and better transit, health care and schools – and passage of the Equal Rights Amendment.

Republicans, by contrast, have a shrinking base. Their margins in the suburbs have vanished. Their voters are whiter, less educated, and rural. They have stuck to the same issues – anti-tax, anti-abortion, pro-gun – that are untenable for a majority party in a state that has embraced the Capital Beltway’s high-tech, value-added economy.

Just ask Danica Roem. In 2017 she proudly acknowledged that she was trans and beat Bob Marshall and his homophobic campaign by running on better roads for fast-growing Prince William County. Roem cruised to reelection.

But the emotional backdrop of the last two years in the seat of the Confederacy is statues. In August 2017, white supremacists converged on Charlottesville to defend a 1924 statue of Robert E. Lee on horseback. Donald Trump defended the protestors – producing the low point of his popularity. Four month later, the House’s GOP bottled up bills that would have allowed localities to remove statues. It blocked Arlington from renaming Jefferson Davis Highway (Democratic Attorney General Mark Herring’s advisory opinion last spring circumvented the General Assembly).

Republicans in their 2018 Senate primary voted for a candidate who linked defenses of Trump and the statues as key planks in his unsuccessful campaign, continuing a string of statewide GOP losses dating to 2009. And in January, Senate Republicans still stopped to honor Lee – leading Lt. Gov. Justin Fairfax to sit down.

Conventional wisdom is that Virginia’s Democrats go to sleep in the third year following a presidential election, when all 40 Senate seats are at the top of the ballot. But the new party ranks are the “pussy hats” of Jan. 21, 2017, who didn’t go home after the largest protest in Washington in memory. They organized, ran for office, knocked on doors, posted signs, wrote checks. They held meetings, publicized issues, built networks of committed volunteers who turned from electioneering to lobbying the legislature back to electioneering. In January they’ll go back to Richmond to ensure that their issues are addressed. And after that, they’ll work for Trump’s defeat.

In the process, the Indivisibles and We of Action and Network NOVA and Moms Demand Action and scores of other spontaneously formed and rigorously maintained grassroots groups have accelerated the death of the Confederacy in the same state house that governed the Lost Cause. The outgoing GOP legislature was the remaining bulwark defending its symbols, like the statues of Davis and Lee on Richmond’s Monument Avenue.

Expect that one of the first bills Gov. Ralph Northam (himself the subject of a  “blackface” scandal 10 months ago) signs next winter will authorize localities to remove those statues. That page of our history is about to turn.

 

 

 

 

 

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Desmond Meade: Restoring the franchise – and justice

Last November Florida voters amended the state constitution, automatically restoring voting rights to ex-felons who had completed “all terms of sentence including parole or probation.”

The amendment was expected to affect more than 1.4 million Floridians, but the newly elected governor, Ron DeSantis, and GOP legislature quickly narrowed its application. In June a new law defined “all terms of sentence” to include any fines, court costs or other restitution listed within the “four corners” of the sentencing document. Witnesses before the legislature testified that the state has no system for tracking these “Listed Financial Obligations” (LFOs) under SB 7066. But an ex-felon who knowingly or unknowingly registers without fulfilling “all terms” may be charged with a felony. Catch 22.

Amendment 4, approved by 65 percent of 8 million votes cast, overturned the constitution’s 1868 provision that denied the franchise to ex-felons for life. Governors Jeb Bush and Charlie Crist liberalized clemency rules. But their successor Rick Scott, who took office in 2011, rolled back the reforms. Under his rule, ex-felons were required to wait five years after completion of their sentences to apply, their application granted – or not – at the governor’s discretion. In eight years, Scott restored voting rights to 2,000 ex-felons. (I wrote about Scott in 2015, in a review of the history of Jim Crow disenfranchisement that GOP legislatures resurrected in this decade.)

Desmond Meade is an ex-felon, though not one of the 2,000 whose rights Scott restored. Released from prison in 2005, an active alcohol and drug addict with no prospects who contemplated suicide next to a train track, Meade instead checked himself into rehab. After that he completed paralegal training, college and law school. But as an ex-felon, he couldn’t take the bar exam.

I met Desmond last year in New Orleans at the UnRig Summit, a national conference of non-partisan grassroots political activists focused on democratic aspirations: voting rights, redistricting reform and eliminating corruption. Two months later I talked to him at a political conference in Virginia (photo above right), where he discussed his biography. He is among the most magnetic political leaders I’ve encountered. In April Time magazine named him among 100 Influential Americans. So I was excited that he came to Portland this week for a conversation sponsored by Oregon Humanities (above left).

What got his attention, Meade told a diverse audience, was Scott’s rollback of the Crist and Bush reforms. That, and that he couldn’t vote for his wife Sheena, who was running for the Florida House. And so in 2011 he founded the Florida Rights Restoration Coalition, which initiated the amendment, submitted its wording to the state supreme court, and spent $1.4 million last year on the campaign.

Asked how he motivated disaffected black and brown people to fight for voting rights, Meade said, “We are the margin of error” – the difference between having no power and becoming a force the power structure would have to mind. That requires activating those who haven’t lost the right to vote. If he were to organize a march of all the disenfranchised people to the governor’s mansion in Tallahassee, “the governor can close the window, because we can’t vote.” But if the disenfranchised enroll their family members in the fight for voting rights, then politicians will be accountable, he said.

That remains his focus: taking the entire family to vote, which he will soon do for the first time, and continuing to engage citizens about the power of voting regardless of their political preferences. It’s about the right to participate.

(One of FRRC’s board members is Neal Volz, a former Republican congressional aide and lobbyist who in 2006 pleaded guilty to conspiracy to commit fraud and other charges in connection with the Jack Abramoff lobbying scandal.)

Though Meade believes no one should ever be disenfranchised, FRRC decided to exclude ex-felons guilty of murder and sexual crimes from the amendment petition – because polling determined it was necessary to win. “If I’ve got 100 people on a sinking ship and only 99 can fit in the lifeboat, let’s take 99 and then come back for the one.”

In the last round of focus groups before the 2018 election, FRRC brought in conservative Republicans and Trump supporters and showed them videos claiming that if Democrats won the election, they would enact abhorrent policies. Meade said the focus groups were unmoved, because their intent was on restoring the franchise to family members. “Blood is thicker than interests. Love is more important than candidates.”

Meanwhile, the legal fight over SB 7066 rages. A coalition of groups – the ACLU, NAACP, Brennan Center and others – sued Florida in federal court in June. Jones v. DeSantis is the consolidated case in which the plaintiffs seeks the law’s invalidation. They contend that SB 7066:

  • Violates the right to vote and the Equal Protection Clause under the 14th Amendment
  • Reinstitutes poll taxes prohibited by the 24th Amendment
  • Is unconstitutionally vague in violation of the Due Process Clause in that Florida fails to provide citizens with sufficient information to determine whether LFOs continue to disqualify them from voting
  • Chills voter registration activities in violation of the First Amendment, and
  • Discriminates on the basis of race

The state’s motion to dismiss was denied. U.S. District Court Judge Robert Hinkle’s ruling on the plaintiff’s motion for a preliminary injunction is pending after a two-day hearing October 7-8; Hinkle has scheduled trial for April 2020.

FRRC submitted an amicus brief September 27 in which it took neither side. It argues that whatever the court decides, it should leave intact the provisions of SB 7066 that allow courts to modify financial obligations so that poor citizens may vote. “FRRC has conferred with a total of ten counties to date about using the modification and four-corners provisions, and conducted calls with myriad judges, state attorneys, public defenders, clerks of court, and other stakeholders about using these provisions.”

Meade said FRRC was aware when it wrote the ballot measure that the state could try to enforce collection of fines and other financial penalties. He told the Portland audience, “If I break the window of your car and steal your I-pad, and I have my rights restored while you haven’t been repaid for your losses, that’s not restorative justice.”

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The American Way of agriculture — and an alternative

I went to eastern Oregon last weekend to tour a version of the American Way of Agriculture with a couple dozen Portland citizens. I was impressed – and at a loss how to convey what I had seen about the way conventional food arrives on our tables. I got clear about what I’d seen when I attended a lecture four days later on the idea of returning half the planet to a modified nature, much less affected by our footprint.

The day trip to Morrow County, 180 miles east and banking the Columbia, was organized by a pair of state senators whose intention was to break bread among city and country folk. Republican Bill Hansell, whose district of 124,000 people is bigger than Maryland, invited Democrat Michael Debrow, chair of the Environment and Natural Resources Committee, to bring constituents from Portland to see how the other half lives.

Morrow County is a breadbasket of Oregon. Generations of farmers have grown potatoes, onions, carrots, wheat, corn, fodder – whatever produces maximum value. Our tour included briefings by the local port authority, water association and several farmers.

I got my first tour of a CAFO (concentrated animal feeding operation), recently acquired by Cody Easterday (above right), a fourth-generation Washington rancher and farmer who is obtaining permits for 28,000 cattle on 5300 acres. Easterday bought the farm in bankruptcy, after the prior owner began operating without permits and narrowly avoided an ecological disaster before he was shut down. By March, he intends his investment – north of $80 million – to have 8,000 lactating cows and the other 20,000 in feed lots. The rest of the land, Cody told us, will be devoted to raising fodder and spreading the waste generated by the cattle. A compelling speaker, Easterday envisions a self-contained operation amid the rolling hills several miles from the Columbia, with water provided by the local authority.

To his east, Jake Madison (on the left) bought his dad’s 17,500 farm, more than half of which is under cultivation. It is at the far end of an 15-mile pipe that within months will take waste water from potato processing plants in the Port of Morrow to his farm. Like Cody, Jake is a sophisticated operator, looking for margins to match his lands’ production. After picking our fill of organic sweet corn, across a dirt strip from conventional corn, he showed us the office computer system, which tracks the hundred-thousand-dollar irrigation pivots that create big green crop circles so mesmerizing at 35,000 feet. Faults in the system can be repaired on iPhones.

As impressive as these technologies are, especially when matched to the new Tillamook cheese factory and some of the world’s largest French fry plants, something about the system disturbed me. Short films at the SAGE Center (Sustainable Agriculture and Energy) in Boardman posited the food needs of the planet’s 9 billion people by mid-century. The Northeast Oregon Water Association, a non-profit with a board mostly of farmers, is working on water management, balancing rights to depleted aquifers and the Columbia, which is stressed by dams, diminishing snowfalls and increasing population. Based on what I read of conditions around the world, I question whether intensive agriculture is sustainable.

Days later I listened to Isabella Tree describe the conversion of her award-winning, 3500-acre farm to something of a nature preserve over the past 18 years. Her husband, Charles Burrell, inherited Knepp Castle, a 200-year-old manor in the south of England that during the Second World War was planted hedgerow to hedgerow to feed a country on the verge of starvation. Burrell had a highly productive operation – much like Jake Madison’s. And he was going deeper in debt the more intensively managed it became. So in 2001, Burrell sold all the equipment and, as Tree described, took a leap of faith.

Following a model developed in the Oostvaardersplassen nature reserve in the Netherlands, Burrell brought back back big herbivores: Exmoor ponies, longhorn cattle, Tamworth pigs. Together the different animals with different needs broke up the soil, spurring a proliferation of flora and fauna that monoculture and chemicals had driven away. Tree explained the method: Stand back and watch. Two decades later, their experiment in “rewilding” has restored the land, water and air and produced three income streams: ecotourism, pastured meat from culled herds, and rent from former farm buildings, now leased to office workers who used to commute two hours to London.

In a slide show accompanying her talk at Powell’s Books, Tree described the return of sounds to an awakening earth, where birds and insects had been driven nearly to extinction. In Wilding, she writes: “The sound of a single butterfly is imperceptible. But tens of thousands have a breath of their own, like the backdraft of a waterfall or an accumulating weather front. It feels as though the oscillating susurration of their wingbeats, pounding away on their supernatural wavelength, might dissolve the world into atoms.”

Tree, a travel writer, contends that restoring the earth we have despoiled is crucial to surviving global warming. To the belief that we must develop ever more intensive agricultural processes, she contends that we already have enough food to feed 11 billion people, but 40 percent of it goes to waste.

I look at the science and our practices – the latest report that the oceans’ ability to absorb our carbon output is reaching its limit – and get depressed. Tree looks at the same thing and gets busy. She’s now writing a manual on how to rewild.

The farmers I met in Oregon have a faith – that science and better practices will save us. But unless we shift our frame of reference, and understand that our survival depends on more that productivity, we will drive ourselves to extinction. The rewilding movement, with outcrops around the world, points to another way.

 

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Revolution in Virginia: the legislature cedes a spoil of partisan advantage

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Where we go for justice: reform advocates in March 2018

It’s been a bad month for Virginia’s government, with controversies around racism, sexual assault and the “Virginia way” enveloping its three elected state leaders, and the legislature unable to formulate a response. As if to affirm Virginia is still mired in the Civil War, with all manner of its leaders donning blackface when in other places white men knew better, the ruling Republicans in the General Assembly killed a bill to allow localities to remove statues honoring warriors for slavery.

So it was astonishing to see the General Assembly on February 23 take the first step in creating a semi-independent commission to draw lines for state legislative and U.S. House districts.

It is a reform long in the making, backed by former leaders in both parties, sparked by citizens’ revulsion at gerrymandering and, most importantly, driven by the GOP’s awareness that its two-seat margin in each chamber is about to slip away for a generation. Thus the party raced ahead of conventional prediction: the majority will support non-partisan redistricting the second it’s in the minority.

My second post on this blog, four years and one week ago, was about gerrymandering in Virginia and Maryland – in Virginia by Republicans, in Maryland by Democrats. My attention remains fixed. Based on decades of observation, I believe gerrymandering is the greatest cause of legislative dysfunction: Because the governors do not reflect the governed, neither do their policies.

For a decade redistricting reform has been on state ballots, in federal and state courts, and considered with varying degrees of seriousness in state legislatures. The Supreme Court has so far declined to address whether political gerrymandering is unconstitutional.

This debate over democratic legitimacy is much like the one we struggled with for the first seven decades of the last century: whether state legislative districts must reflect population. In the early 20th century, many legislatures simply stopped remapping their districts as urban populations overtook rural areas, even as the Constitution required them to redraw U.S. House maps following the decennial census. Future Chief Justice Earl Warren, as governor of California, defended rural power as Los Angeles and San Francisco overwhelmed the population of districts whose reps ran the state assembly.

But in 1962, after turning away case after case, Chief Justice Warren’s court finally ruled in Baker v. Carr that “one person one vote” was a principle of representation that applied to the states and that the question of whether their districts were fairly drawn was “judiciable,” a question for courts. And in Reynolds v. Sims (1964), the high court declared that state legislative districts must have equal populations, and that whether their structure reflected Congress (the Senate’s membership is unrelated to population) was irrelevant. For the court, Warren wrote, “legislators represent people, not trees or acres.”

The U.S. Senate Republican leader, Everett Dirksen of Illinois, backed by moneyed interests and a sophisticated PR firm, led a campaign to overturn Reynolds by constitutional amendment. It fizzled two states short of ratification when, after redistricting in 1971, the republic did not collapse.

Fifty years later, gerrymandering presents similar questions of democratic legitimacy. As in the lead-up to Baker, the Supreme Court has skirted it, remanding cases in Wisconsin, Maryland and North Carolina. (In March it will hear two more, a reframing of Maryland’s political question from a year ago, and a racial gerrymandering case from Virginia for the second time.) But lower federal and state courts have struck down politically gerrymandered districts (racial gerrymandering has long been unconstitutional). Meanwhile voters have demanded reform, most recently in Michigan and Utah, where in 2018 they passed citizen initiatives for independent commissions. California voters did so a decade ago, and its commission is the gold standard – one of many states where map-drawing is at least partly independent of state legislatures.

Like all legislative handiwork, the Virginia plan is imperfect, but it’s better than we reformers thought possible last fall: a 16-member commission of eight partisans – two each appointed by respective party leaders in the state senate and house – and eight citizens selected by a panel of retired judges. Six members of each group would be required to approve the maps, and the Assembly would be allowed to vote only up or down but not amend. A year ago the leading advocates – OneVirginia2021 and the League of Women Voters – thought it impractical to advocate any citizen participation.

The Senate passed the constitutional amendment 40-0, the House of Delegates 83-15. The Assembly will have to approve an identical measure in one year, before it goes to the ballot in November 2020 – in time for redistricting in 2021. Assuming the commission is effected, the Assembly may write statutory guidance about membership and map criteria.

A year ago, Republicans were thinking that their 15-seat loss in the 2017 House elections was a flash in the pan. Then last fall the state’s congressional delegation flipped from 7-4 Republican to 7-4 Democratic. And this month a federal court cleared the way (pending a long-shot reversal from the Supreme Court) for 26 redrawn House lines that are likely to give the Democrats control of both chambers. Barring Trump landing in jail to energize the base before November, Republicans see the writing on the wall.

If fear is what it takes, cool. My friends in my former home state will, I anticipate, hold the Democrats’ feet to the fire, assuming they take control in the November elections. Two years from now, Virginia will draw fair lines, without favor to parties or incumbents.

 

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New maps and a new reality in Virginia

The four-year, twisting tale of 11 Virginia House districts judged to be racially gerrymandered is reaching its climax, as the federal court presiding over the case has drawn new lines for 26 districts, both those at issue and 15 adjacent ones.

Of personal interest are the 72nd and 73rd districts in suburban Richmond, because I walked them during the 2017 election campaign, and because the court’s solution apparently considers the central questions of redistricting: maps that are fair to all voters – or as we say, compact and contiguous, reflective of constituencies, without favor to parties or candidates, and perhaps politically competitive. These issues are before the General Assembly as it considers a nonpartisan redistricting commission advocated by OneVirginia2021.

On their face, the current lines of the 72nd and 73rd are absurd – a court brief referred to the 72nd, now represented by my buddy Schuyler VanValkenburg, as a “toilet bowl.” The 72nd wraps around the 73rd, and both were drawn in 2011 for the benefit of two Republican incumbents who lived near each other and, under the state constitution, must live in the districts they represent.

The 72nd was one of the 11 districts the U.S. Supreme Court in 2017 found to be racially gerrymandered. The 73rd was never part of the case, and it looks like a relatively reasonable district – not round but not twisted into a pretzel, with a political profile befitting what was then the area’s suburban, conservative character (the Republican incumbent had drawn no opponent since the 2011 redistricting until Democrat Debra Rodman defeated him in 2017).

The special master appointed by the federal District Court for the Eastern District of Virginia proposed two maps: one that split the two into halves (the map at left, above) and another (at right) that swapped a couple of 72nd precincts with another district and did not touch the 73rd. The court chose the second option, which the Virginia Public Access Project, a nonpartisan organization that produced these maps, projects will tilt the 72nd 1.94 points to the left.

As a matter of geography, the left map makes sense. As a matter of politics, it would have produced one solidly Democratic and one solidly Republican district, neither competitive by current measures. And it would have been disruptive. It might have required its incumbents to give up their seats unless they chose to move. It would have gone far beyond the purview of the court – to address racial gerrymandering, not make the districts compact and contiguous, or necessarily affect their political composition.

In total, the new maps are detrimental to the GOP’s 51-49 hold on the House of Delegates, and Speaker Kirkland Cox decried the court’s decision. But we expected that. After all, according to the court record, the GOP’s author of the 2011 maps, Chris Jones, worked with black incumbent Democrats to draw them safe districts at the expense of a map that would have been more competitive and favorable to Democrats as a whole. The Supreme Court struck down the plan as a racial gerrymander because it packed blacks into fewer districts, thus diluting their voting strength. The new House maps appear to threaten a net of at least a half-dozen GOP seats.

The final chapter in this story may be written by June, when the Supreme Court is expected to rule on Cox’s appeal of the district court’s order to redraw the 11 districts per the Supremes’ 7-1 decision in 2017. Four justices, I assume, agreed to take the case: the two (Thomas and Alito) who wrote separate opinions two years ago joined by the two Trump nominees.

It’s possible that Chief Justice Roberts will reverse his support for the principles underlying then-Justice Kennedy’s majority opinion – that the court was bound by precedents striking down racial gerrymandering. That seems unlikely, as the high court declined January 8 to stop the district court from drawing new maps until the underlying case is decided. But it is Cox’s prayer, and his only hope of retaining the speaker’s gavel, and perhaps his seat, after November’s elections. Under the new maps, Cox’s own district shifts from 63 percent Republican to 53 percent Democratic.

Perhaps the GOP will make these calculations as it determines whether to pursue a constitutional amendment creating an independent redistricting commission. It has to decide this month, while the legislature is in session. If it doesn’t lay the groundwork for a fair process – a constitutional amendment requires passage in consecutive legislative sessions with an intervening election and then voter approval on a general election ballot – it’s likely to face Democratic majorities, backed by a Democratic governor, drawing new maps in 2021.

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