John Roberts: History is Calling

The U.S. Supreme Court this week confronts partisan politics and history in a way that will profoundly impact the court as an institution and largely determine the fate of the controversial Affordable Care Act (ACA) – Obamacare.

Supreme CourtIn the curious way that American political history has of not exactly repeating itself, but of regularly returning to the same themes, it is fascinating to consider how the Supreme Court handled a similarly contentious issue 78 years ago. The issue then was different – state minimum wage laws in 1937 versus health insurance today – but the impact on the court as an institution and on American politics is still instructive. Some of the parallels are striking.

If Chief Justice John Roberts hasn’t done so he might want to read up on the back story in the case of West Coast Hotels Co. v. Parrish. The leadership exercised by one of his illustrious predecessors, Charles Evans Hughes, just might be useful for Roberts this week, since how the Chief handles the Obamacare case – King v. Burwell – may determine not only his own legacy but also the court’s standing among American voters.

The Supreme Court became the most controversial issue in American politics in 1937. Re-elected in a landslide in 1936, early the next year Franklin Roosevelt took dead aim at the Supreme Court that had dismantled key fdr.gi.topparts of his New Deal economic recovery program. In one of the most audacious proposals ever suggested by an American president, Roosevelt sent legislation to Congress – a Congress overwhelmingly populated with his fellow Democrats – that would have added six new justices to the Supreme Court. In one sweeping legislative action Roosevelt proposed to both liberalize the Court and at the same time neuter a co-equal branch of the federal government.

Through the long, hot and politically disagreeable spring and summer of 1937, Democrats fought with each, with their president and with Republicans over whether to give FDR what he dearly wanted – a very conservative Supreme Court remade overnight into a liberal supporter of his program. The American Bar Association, the nation’s major newspapers, organized labor and farm groups chose up sides and by the time the fight finally ended Roosevelt had suffered the biggest political defeat of his presidency. The Democratic Party that should have been at the zenith of its power was ripped apart and Roosevelt would never again command a working majority in Congress for his domestic agenda, but the Supreme Court as an institution remained unchanged.

The West Coast Hotels case was part of the reason. The Parrish in the case was Elsie Parrish, a elsiechambermaid at the Cascadian Hotel in Wenatchee, Washington, a hotel owned by the West Coast Hotels Company. Elsie, joined by her husband, filed suit contending that she received sub-minimum wage compensation for the work she performed and she sought to recover the difference between what she was paid and the minimum wage established under Washington state law.

The question presented to the court when the case was heard late in 1936 was whether Washington’s state minimum wage law “violated the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment.” In 1923, in a similar case, the Supreme Court had overturned a District of Columbia minimum wage statute on grounds that it violated the Fifth Amendment’s due process clause. Early in 1936, the Court struck down a New York minimum wage law in a case that was almost exactly on point with the issues in the West Coast Hotels litigation. The New York decision was widely seen as a blow to New Deal-era reforms – FDR was incensed by the Court’s ruling  – and the case seemed to offer further proof that the Supreme Court was hostile to nearly any type of regulation of business.

When the Washington State case came before the Court in December 1936 it wouldn’t have taken a clairvoyant to predict the outcome. But in the interval between the two nearly identical 1936 cases, something changed. What changed had been entirely political. Roosevelt was overwhelmingly re-elected by American voters who were clearly showing their support for his policies. In simple political language the conservative majority on the Supreme Court suddenly found itself dramatically at odds with widespread public sentiment.

A Switch in Time…

When the West Coast Hotels case came before the court in December 1936 – remember this was after FDR’s big re-election win – Chief Justice Hughes, who had been in the minority in the New York case,245px-Owen_J._Roberts_cph.3b11988 prevailed upon Associate Justice Owen Roberts – no relation to the current Chief, but like him a Republican appointee to the Court – to change his mind and wipe out the precedent that the Court had re-affirmed just ten months earlier. With the Chief Justice writing the majority opinion, the court upheld the Washington state law – the vote was 5-4 – and Elsie Parrish, the Wenatchee chambermaid, found that the state minimum wage law really did apply to her.

Next comes one of the best examples I know of how timing impacts politics. While the West Coast Hotels case was heard just before Christmas 1936, and Justice Roberts indicated in a conference with fellow justices two days later that he would change his mind, the decision in the case wasn’t made public until the following March, weeks after Roosevelt proposed his sweeping and controversial plan to reshape the Supreme Court.

To the public and press it looked like the Court was knuckling under to political pressure from a hugely popular president, when in fact the Court, under Hughes’ skillful leadership, had already made up its mind to directly reverse its earlier precedent in minimum wage cases. Still it was widely said that Robert’s switch helped save the Supreme Court with one wag saying, “a switch in time saved nine.” The great historian William Leuchtenburg called it the “greatest constitutional somersault in history.”

ihughec001p1In reality, Hughes was a shrewd student of politics and had correctly read the election returns as a strong indication that public opinion was moving in the direction of a more activist role for the government in regulating the economy and American business. Hughes, very much a Republican and conservative, even admitted that the Court could no longer serve as “a fortress” against public opinion. In order to head-off the kind of sweeping political change that Roosevelt and others had in mind for the Court, Hughes knew his beloved Court had to change and lobbying Justice Roberts gave him his fifth vote. Hughes put his considerable muscle as a great Chief Justice behind his belief that the Court had to change in order to sustain its integrity and independence. Subsequent decisions by the Court in 1937 to uphold the Social Security Act and the National Labor Relations Act further helped doom Roosevelt’s court packing plan and at the same time helped maintain public confidence that the Court was able to respond to national problems during the greatest economic crisis the country has ever faced.

King v. Burwell…

The case at question before the Supreme Court this week – King v. Burwell – turns on just four words buried deep in the controversial 955 page legislation passed by Congress in 2010. The challenge to the ACA centers not on questions of constitutionality or the application of Congressional or Executive authority, but whether every qualified American is entitled to an insurance subsidy whether they enrolled for health insurance through a state or a federal insurance exchange seems certain to thrust the court into the middle of the most contentious political issue in recent history.

In taking this case the court has decided it must rule on what Congress meant when it wrote those four words – “established by the state” – into the law.

As David Cole wrote recently in The New York Review of Books: “The challengers’ statutory argument is deceptively simple. A subclause of the tax code setting forth a formula for calculating federal income tax credits provides that the amount of the credit depends on the number of months the taxpayer has been enrolled in a health insurance plan purchased on an insurance exchange ‘established by the State.’ Since an exchange established by the federal HHS is not an exchange ‘established by the State,’ they maintain, the law precludes subsidies for all residents of the thirty-four states that have exchanges created by HHS. The government counters that exchanges ‘established by the State’ is a legal term of art, and when read in conjunction with other parts of the ACA, it encompasses both exchanges that states themselves established, as well as exchanges that the states chose to have HHS create for them in their respective states.”

As a practical matter the health insurance exchanges in 34 states operate on the platform established by the federal government. If the court decides those exchanges are not subject to the subsidies – boom. Consider it the nuclear option. An estimated 7.5 million people in those 34 states will lose their subsidies, not be able to afford insurance and the great Obamacare experiment will tip over like Humpty Dumpty falling off that famous wall.

The committed opponents of the health insurance law will, of course, celebrate the death of the act they have tried to destroy once before in front of the Roberts’ court and more than 50 times on the floor of the U.S. House of Representatives. Should those challenging the law prevail it will be seen correctly as a huge victory for conservatives who hate Obamacare and a crushing defeat for President Obama’s signature legislative accomplishment. The impacts on the Supreme Court could be even more earth shaking.

RobertsRoberts is the man in the hot seat, just as Charles Evans Hughes was in 1937 and we already know he did some personal legal jujitsu to accommodate his own very conservative views to the political will behind the ACA when he cast the deciding vote to uphold the Act when it first came before his Court. In fact, there is one school of thought that Roberts has already found a way to uphold Obamacare from the latest challenge by invoking a very conservative legal principle – standing. It may well be that the plaintiffs in the King case don’t have the legal standing to even bring the case. We’ll see.

Hughes’ task in the New Deal-era was to save the Court from the kind of political interference Franklin Roosevelt had in mind. Roberts’ task today is to keep the Supreme Court, with its conservative majority, from using an extraordinarily narrow issue to kick the increasingly popular health care law in the ditch. Such a ruling would certainly please the legion of Obamacare haters, but at the cost of denying health insurance to several million Americans who now have coverage.

Conservatives who hope the Court will kick things in the ditch decry what they call “executive lawmaking” that “poses a severe threat to the separation-of-powers principles enumerated in the Constitution.” And they contend the president “has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.”

But in the King case the dangerous behavior – you might read judicial activism – would be for a Supreme Court to impose its own notion of how an IRS rule ought to be applied; replacing its judgement for that of the branch of government changed with actually carrying out the terms of the law.

Long-time Supreme Court watcher and New York Times columnist Linda Greenhouse argues that nothing less than “the honor of the Supreme Court” is at stake in the King v. Burwell decision. “To reject the government’s defense of the law,” Greenhouse wrote recently, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”

At pivotal moments in American history various Chief Justices have guided the Supreme Court through some very hard cases. Hughes did it in the 1930’s. Earl Warren did it in the 1950’s with the Brown v. Board of Education ruling that separate but equal simply could not be Constitutional. Warren Berger did it in the 1970’s when he lead a unanimous Court that required Richard Nixon to turn over his White House tape recordings. In each case the integrity of the Court, as well as its ability to transcend, while at the same time respond to politics, was at stake. It’s also worth noting that in these historic cases a Republican chief justice appointed by a Republican president moved the Court in a new and important direction, while also keeping the Court out of the intense crossfire of partisan politics.

The same issues are at stake this week. Ironically, in reading the old West Coast Hotels decision, I noticed that one of the attorneys of record was named – John Roberts. For the Chief Justice history really is calling.

 

Teaching Old Dogma New Tricks

Start with the obvious – all politicians pander to one degree or another. It is an occupational hazard of the political art that admittedly some do more adroitly than others. Still staking out a position in order to maximize political support or to appeal to a particular slice of the electorate is as old as Lincoln.

As he maneuvered for the Republican presidential nomination in 1860, Lincoln attempted deftly tab30460.jpgo manage the only issue that really mattered in that election – what to do about slavery and particularly whether slavery would be allowed to expand into new western territories. Ultimately elected with just 40 percent of the vote, Lincoln made his political appeal to the anti-slavery crowd, but also carefully attempted to reassure worried southerners and state’s rights advocates that he believed in working in the political process to settle big national disputes.

Lincoln’s political management of the slavery issue was both principled and pragmatic, which is what good politicians do. Lincoln had to appeal to northern Republicans, but at the same time attempt not to alienate another vast segment of the population. The stakes were beyond high. One might argue that Lincoln, one of the most skillful politicians to ever occupy the White House, was unsuccessful, but the fault sits with those who refused to believe Lincoln’s election was legitimate and his motives principled. Even before Lincoln was inaugurated in March 1861 seven southern states had voted to secede from the Union and a bloody civil war became inevitable even as Lincoln tried to head it off.

So much of Lincoln’s approach to the political arts – principles fused with pragmatism – still rings true 150 years after his death. It also rings true that the great man would not recognize the modern party that sponsors dinners in his name this time of year, but seems to act less and less in his spirit.

From unrestricted money to endless campaigns there is much to dislike about modern American politics, but perhaps there are few things more unsavory, and less like Lincoln, then the increasing tendency of candidates to embrace positions that they must know are unsustainable over the long run, but they embrace them nonetheless in the interest of short-term appeal to a narrow, ideological band of political activist. A variation on this theme is to simply refuse to answer questions about issue that if answered “incorrectly” might cause a flutter among the politically active in a suburb of West Des Moines, Iowa or in downtown Columbia, South Carolina.

This is the very definition of pander and it has almost nothing to do with principle.

As the Republican “shadow primary” continues to unfold and with the media focus constantly shifting walkerto lavish attention of the GOP “flavor-of-the week” the current not-ready-for-prime-time contender has become Wisconsin Governor Scott Walker. Walker’s Tea Party flavor has taken him to the top of the latest polls in Iowa of Republican contenders largely on the strength of adopting – or refusing to specify – positions that he can’t sustain all the way to the White House, but might position him solidly with the element in his party that Teddy Roosevelt once called “the lunatic fringe.”

In the space of a few recent days Walker refused to say whether he believed in evolution, said “I don’t know whether Obama is a Christian,” and declined to offer a comment on Rudy Giuliani’s silly assertion that the President of the United States doesn’t love his country. For good measure and during the same period Walker doubled down on his opposition to abortion and engendered controversy in Wisconsin by trying to change (and dumb down) the mission statement of the state’s widely respected higher education system, while also proposing drastic cuts in that system.

Walker’s motives for failing to answer basic questions are as subtle as Vince Lombardi’s famous Green Bay Packer Sweep – he’s powering farther and farther to the right in the Republican contest for 2016 believing apparently that politics has suddenly become a game of subtraction rather than addition.

What Walker might have said to such basic questions seems so obvious. On the president’s religion, for example, he might have said: “It’s my understanding that the president has said many times that he is a Christian. I accept that since I am, too.” Or he might have said, as Jeb Bush essentially did, with regard to Obama’s patriotism: “I don’t presume to question the president’s loyalty or love of country, but I do disagree with him on policy.”

Maybe Walker really believes Barack Obama isn’t a Christian or is fundamentally disloyal to his country, but I’m guessing he is really playing – not very skillfully as it turns out – the Republican dog whistle game designed to reassure the party “base” that a presidential candidate is in on the far right joke. If you’re jockeying for Republican primary voters you can’t be too sure about science and it is impossible to be too critical of Obama.

For his part Walker blamed the media for all the attention he received for his evasions, which were really just code signaling that Walker “gets” the GOP primary voter. The media is guilty, Walker said, of playing “gotcha games.” Then Walker immediately began raising money on the basis that he had adopted an adversary relationship with the well-known “liberal” media.

“To me, this is a classic example of why people hate Washington and, increasingly, they dislike the press,” Walker said. “The things they care about don’t even remotely come close to what you’re asking about.”

Welcome to the world of the Republican presidential primary or, more correctly, the mad sprint to the far, far right where “strategy” and “message” mean you refuse to disassociate yourself from the ridiculous ranting of a one-time big city mayor and then blame the press for asking. As for “gotcha” questions stay tuned governor you ain’t heard nothing yet. Many good reporters know that the very best question is often a simple question that forces the politician to reveal – or hide – core beliefs.

How else to explain Walker not answering a question served up by a British interviewer who asked if the Wisconsin Tea Party darling believed in evolution. There is an appropriate answer for that question and it would be – yes, but Walker said he would “punt” instead. Offering up the correct answer based upon science, after all, might signify that Walker isn’t being appropriately sensitive to the apparently increasing number of self-identified Republicans who say they don’t believe in evolution.

As the New Yorker’s John Cassidy says: “In a more just world, Walker’s indecent and craven antics would disqualify him from playing any further role in the Presidential race. But in the current political environment, his tactics, far from hurting him, may well bolster a candidacy that is already thriving.”

New Jersey Governor Chris Christie and Kentucky Senator Rand Paul drove into this message RandPaulHuh2cul-de-sac recently when they tried to finesse, again for the benefit of the far, far right of their party, the question of whether parents ought to get their children immunized. The overwhelming scientific and medical evidence is that yes you should get your kids immunized. Vaccination for school children also happens to be the law in all 50 states and 83 percent of Americans according to a recent Pew survey believe vaccines are safe. But apparently the nine percent who don’t agree about the safety of immunizations (seven percent say they don’t know) all vote Republican in the Iowa caucus.

Both parties have their litmus test issues, but the Republican test is fraught with more political peril. When immunization, evolution and the patriotism of the man in the White House become questions GOP candidates need to bob and weave around you have a sense that a vast swath of the American electorate is already quietly shaking their heads and asking is this the best we can do?

As the usually astute political observer Charlie Cook pointed out recently, “Given that, since 2009, the organizing principle for most Republican campaigns for the White House, the House, and the Senate has been to oppose Obama, Obamacare, and most other administration policies, Republicans need to think about what they are going to stand for as the end of the president’s time in office nears, and after he’s gone.”

Cook suggests, and I agree, the defining issue of the 2016 campaign will be “real incomes” and the fact that “accounting for inflation, the median income for American households peaked in 1999, at $56,895, and has been going down since. The average American family has been losing ground for a decade and a half.” Try punting on that one.

The real peril for Republicans as they maneuver to replace Obama, and Scott Walker really is just the flavor-of-the-week, is whether they pander so much to the fringe of their party that they can’t generate credibility with the rest of the country on issues that, as Walker might say, “come close to what you are talking about,” including real incomes of middle class Americans.

The terribly witty Dorothy Parker long ago reportedly quipped – appropriately it would seem in Governor Walker’s case – “that you can’t teach an old dogma new tricks.” It’s a sad testament to the state of politics that no one, with the possible exception of Jeb Bush, is even tentatively challenging the old dogma that has come to define the modern GOP and led them to defeat in the last two presidential elections. Sadly Republican presidential candidates again seem to be locked into a long, twilight struggle to narrowly define themselves by the dogma they are convinced they must embrace in order to appeal to the party’s primary voters.

It was just that kind of thinking, after all, that got a socialist, Kenya-born Muslim, who is disloyal to America and probably believes in evolution elected President of the United States in the first place.

 

A Bias for Action

His critics will probably say that once again Barack Obama has failed to exercise the kind of leadership that goes along with occupying the Oval Office. He’s waited too long, they’ll contend, to intervene on the West Coast port crisis and try to end the work slowdowns that have cargo backed up from San Diego to 101823174-451523212.530x298Seattle. The impact on the region’s economy is clear and the threat the U.S. economy is growing by the day.

Obama has now dispatched his Labor Secretary to engage the warring port operators and labor unions, but still seems reluctant to apply the full power he has under the still controversial law known since its passage in 1947 as Taft-Hartley.

Under the Taft-Hartley Act, as Roll Call has noted, “the president can get involved once a strike or lockout affects an entire industry, or a substantial part of it. At that point, the president must appoint a board of inquiry to report on the factual elements of the dispute. After that, the president can petition a federal court to prevent any strike or lockout the president has deemed a threat to national health or safety.”

Obama undoubtedly knows his history and as such knows that a president can win big or sometimes lose large when he puts the prestige of the presidency on the line in a labor dispute. Still, the American public has usually rewarded decisive presidential action when it can be clearly shown to be in the broad national interest.

Wielding a Big Stick…

Theodore Roosevelt rarely – make that never – seemed to hesitate to throw himself into a fight. Teddy-Roosevelt-the-Anthracite-Coal-Strike-the-Railroad-and-Civil-Rights-_picture_-2When a national coal strike edged into its fifth month in 1902 and threatened a very cold winter for millions of Americans, Roosevelt became the first president to personally intercede in a labor-management dispute. Using typically Rooseveltian tactics, T.R. summoned the strikers and the coal operators to meet and urged them to work out their differences in the national interest. The workers agreed, management balked, and Roosevelt acted. He threatened to seize Pennsylvania coal fields and use soldiers to dig the coal and then he appointed a hand-picked commission to suggest a way out of the impasse.

“Ultimately, the miners won a ten percent increase in pay with a concomitant reduction in the number of hours worked each day. The commission failed to recommend union recognition, however, or to address the problems of child labor and hazardous working conditions. Still, for the first time the federal government acted to settle, rather than break, a strike.” The decisive action by Roosevelt, coming not long after he had assumed the presidency and long before Taft-Hartley, helped cement his well-deserved reputation for action and leadership.

Although Harry Truman denounced the Taft-Hartley legislation in 1947 as “a slave labor law” – harrystrumanTruman vetoed the legislation only to see his veto overturned by a strong bi-partisan vote in both houses of Congress – the no-nonsense Missourian channeled T.R. in 1946 when he came close to nationalizing the nation’s railroads to end another crippling strike. Truman was incensed that two of the twenty national rail unions refused to accept a wage agreement that he had personally helped broker and he went on the radio to blast union leaders by name. His words prophetically anticipated the passage of Taft-Hartley the next year.

“I would regret deeply if the act of the two leaders of these unions,” Truman said, “should create such a wave of ill will and a desire for vengeance that there should result ill-advised restrictive legislation that would cause labor to lose those gains which it has rightfully made during the years.”

The year 1946 was a brutal year for Truman, the country and organized labor. A wave of strikes swept the country after the end of World War II and Republicans scored big wins in the mid-term elections allowing the GOP to recapture control of Congress for the first time since 1930. That historic election, coupled with the legislative cooperation that existed among conservative Republicans and conservative southern Democrats, led to major changes in the labor friendly Wagner Act, a cornerstone accomplishment of Franklin Roosevelt’s New Deal that passed in 1935.

The Taft of Taft-Hartley…

Taft-Hartley is the best remembered legislative accomplishment of the man once known as “Mr. TaftRepublican” – Robert Alonso Taft of Ohio. Taft was a fixture in national politics and a contender for the Republican presidential nomination from 1940 until 1952. Taft died of cancer in 1953 having never won the Republican presidential nomination that might have allowed him to fulfill a dream to follow his father – William Howard Taft – into the White House.

What is less well remembered is that Taft – unlike the labor-hating Fred Hartley, a New Jersey Congressman who chaired the House Education and Labor Committee – was a highly respected, hugely powerful senator; a man of principle and a politician willing to compromise in order to pass important legislation. Taft was at the zenith of his legislative power in 1947.

Taft’s best biographer James T. Patterson has pointed out that the Ohio senator had “relatively little interest” in a Time - Taftprovision advanced by Hartley that would require union leaders to swear anti-communist oaths in exchange for recognition by the National Labor Relations Board. Patterson says that Taft, while certainly aiming to trim the sails of organized labor, “insisted on the right of labor to strike and to bargain collectively with management.” Taft also opposed too much government scrutiny of internal union operations and true to his life-long convictions opposed “extensive government intervention in the economy.”

As West Coast Democrats and many Republicans now call for decisive presidential action to end the port crisis by invoking provisions of Taft-Hartley, it is interesting to note that the region’s members of Congress were all over the map in 1947 when it came time to consider Truman’s veto of Bob Taft’s famous legislation.

Oregon’s Wayne Morse, still a Republican in 1947, was one of only three Senate Republicans who voted to sustain Truman’s veto. Three liberals, the likes of whom don’t exist any longer, Warren Magnuson of Washington, Glen Taylor of Idaho and James Murray of Montana also voted to uphold Truman’s veto. Other Republicans in the Northwest delegation in 1947 – Zales Ecton of Montana, Henry Dworshak of Idaho, Harry Cain of Washington and Guy Cordon of Oregon – voted to override Truman and make Taft-Hartley law. Those were the days when Oregon and Washington had Republicans and Idaho had Democrats.

One could argue that organized labor in the United States has been in a long, steady decline since Taft-Hartley, which ironically makes it easier from a political standpoint for a president, even a Democrat, to intervene in a situation like that that now grips the West Coast ports.

The Gipper Strikes…

Obama might remember that it was a political no-brainer for Ronald Reagan to fire striking air traffic controllers in 1981, even though the union had supported Reagan’s election. Reagan’s action in that 3384-20Acelebrated case allowed him to quote one of his favorite presidents, Calvin Coolidge, whose portrait Reagan had placed in the Oval Office. When air traffic controllers violated the law by striking Reagan quoted the laconic Vermonter: “There is no right to strike against the public safety of anybody, anywhere, at any time.”

Reagan biographer Richard Reeves says telephone calls and telegrams buried the White House and “supported the President’s stand by more than ten to one.” Many historians contend that Reagan’s harsh action further diminished labor’s clout, but there is little doubt his actions enjoyed broad public support and enhanced his popularity.

It appears the West Coast port situation has entered the phase where everyone involved is unable – or unwilling – to take a step back and try to find a solution. With everything from imported automobile parts to exported grain backing up there is no downside for a politician to act decisively and in the broad public interest. There is ample precedent for such action dating back to Teddy Roosevelt and ample reason to believe that a president, particularly one in the final two years of his term, would enjoy widespread public support for rolling up his sleeves and pounding the table for a settlement. A Democratic president, who surely will want to lean in the direction of organized labor, might also succeed, as a labor-friendly Roosevelt did in 1902, in crafting a solution that amounted to an historic win for workers.

In any case, in instances such as as the West Coast port issue, there is a strong bias in favor of presidential action, and sooner rather than later.

 

The Tragedy of John Kitzhaber

One Oregon legislator said it was like a Greek tragedy, but the dimensions of the decline and fall of Oregon Governor John Kitzhaber are more Shakespearean than Hellenic.oregon-governor

The Kitzhaber downfall became so completely bizarre over the last month of so that it would seem unbelievably contrived where the real facts of this political soap opera reduced to a script for House of Cards. You sense that even Frank Underwood is shaking his head. In the end Oregon’s longest serving governor collapsed faster than, well, a house of cards. The drama in Salem over the last few weeks was equal parts Lear, Hamlet and Macbeth.

Consider the basic facts. Kitzhaber, a fixture of Oregon politics for more than 35 years, was elected last November for the fourth time following a lackluster campaign against an inept opponent. The race is marked by audible sighs of “Kitzhaber fatigue” and the governor’s girlfriend/fiancée Cylvia Hayes ultimately became the campaign’s major issue. The real issues in the Kitzhaber saga have always been the violation of the bright line between public responsibility and private interest, between transparency and entitlement. In many states such combinations might have spelled a political end at the ballot box, but in one party states like Oregon (and Idaho) partisanship often trumps the basics of right and wrong. Yet in this case, as with the audience at an Elizabethan drama, everyone save the actors seemed long ago to understand how this play would end.

KitzAt a moment that should have marked the pinnacle of his political career Kitzhaber was hardly able to celebrate his unprecedented fourth election due to the cavalcade of news reports about Hayes’ dual and overlapping roles as “first lady” and private sector consultant. As the scrutiny mounted the stonewalling intensified.

In retrospect it is now easy to see that Kitzhaber’s remarkably rapid descent began back during his re-election campaign when he responded, annoyed and testily, to questions about whether Hayes was unethically and possibly illegally benefiting from her shadowy role as policy adviser to her boy friend the governor, while she also billed clients who seemed to all have an agenda with the state of Oregon. All that would have been bad enough without a further avalanche of detail about Hayes’ earlier life, including involvement with a pot farm and a marriage the governor said he’d not been aware of. With every drip-drip of detail the appearances became more damning and the defenses more ineffective.

“We did not violate the law,” Kitzhaber said during a memorable debate with his Republican opponent last October. “We’ve simply given a modern and professional woman an opportunity to continue her career. In 2014, it seems ludicrous that a woman should be expected to give up her career and life’s work just because she will soon be married to the governor.” True enough. Perhaps had the governor drawn brightly the line between his fiance’s public and private roles all this never would have happened. That he never did will become his sad legacy.

That October comment, coupled with no hint of acknowledgment that the governor-girl friend arrangement might have even the appearance of impropriety, was the sure signal of the lack of self awareness that seems to descend on nearly every politician, even the smart and skilled ones, who come to believe in their own righteousness. Shakespeare might have called it hubris.

Incidentally, Kitzhaber’s line about his “modern and professional” fiancée was essentially the same argument the Clinton’s used long ago to justify Hillary’s Rose Law Firm legal career and membership on the Walmart corporate board while Bubba sat in the governor’s office in Little Rock and while she was First Lady. The justification didn’t pass the smell test then either, proving once again that there are no new scandals in politics only the ones that repeat over and over. What is different in the two cases is that the Clinton’s benefited from a political life in Arkansas before email, which, as the former governor of Oregon now knows, were simpler times.

In the final days of this debacle, there rolled out the completely predictable cycle of political scandal: the newspaper editorials demanding resignation, the mad rush to lawyer up, the late-breaking revelations each carrying a unmistakable sense that the hole was getting deeper, the feints that resignation was imminent, the too-late effort to cover tracks, the inevitable abandonment of close allies and friends and the further retreat into the bunker. Like the cycles of the moon, the political scandal always ends the same way.

Still, in the evolution of any scandal there is always a moment – or even many – when an admission of error leavened with public humbleness can provide the opportunity for redemption and perhaps survival. Kitzhaber, a hard charging former emergency room doctor, could never get to a point of responsibility, admission and humility. We’ll never know whether he might have saved his own often impressive political career by simply admitting errors of judgment and asking Oregonian to allow him to make things right. The American capacity for forgiveness and redemption is remarkable, but one has to recognize the need to humbly make the ask. Part of the tragedy here is that Kitzhaber never tried and a bigger part is that he didn’t see the need.

There an old saying among airplane pilots – beware the hundred hour pilot – that applies to the Kitzhaber-Hayes saga. Pilots, it is said, who are still learning the ropes of piloting an aircraft tend to be extra careful with their actions and the condition of their plane. It’s the pilot who reaches a hundred hours of flight time who suddenly believes he’s Charles Lindbergh and has become immortal in the cockpit. The same thing can happen to a politician: Elected four times, obviously the smartest guy in any room, in his own mind his motives only pure, the newspaper and political critics unfair, the advisers timid or shunted aside.

When crisis descends, the truly smart ones reach out – widely. The smart ones have enough confidence to step back and ask what might I have done better and how might I make it right? The hardest and most essential part of dealing with a crisis is the ability to understand the critics and not dismiss their concerns as unknowing or unimportant. In this case it was not only hard but impossible.

Ironically, it is often the most seasoned politician – think of Larry Craig or Bob Packwood or Brock Adams, among many others – who behaves like the all-knowing, all-certain “experienced” hundred hour pilot who follows his “experience” – read arrogance – into the side of a mountain.

There will be many story lines in the days ahead in the Oregon political drama that only The Bard of Avon might have concocted. We certainly haven’t heard the last of John Kitzhaber and his First Lady with the likelihood of a long and contentious legal process just beginning and indictments a real possibility. It will be said that the former governor brought it upon himself. He fell victim and grew blind to the allure of a younger woman with more ambition than sense. Hubris, even arrogance, was at play. Entitlement can be fatal. The Oregon saga was all that.

There is always both sadness and glee when a public figure is brought low; sadness that humans, even elected ones, are all too human and glee, at least by some, in the fact that a once powerful politician was brought down in a strikingly public way. The real tragedy, of course, is that it didn’t have to happen. But that is always the case with political tragedy.

 

Selma: The Movie, The History

The Movie…

If you haven’t seen the Oscar-nominated film Selma you should. While mostly snubbed by those whoSelma decide which of Hollywood’s features are deemed worthy of acclaim, the film is worthy of much acclaim, and is a stunning and passionate look at recent American history. Given the country’s continuing struggle to reconcile its aspirations regarding equality with its history of racism and hatred, Selma presents a part of our history that must be remembered and understood, celebrated and mourned.

Like all films that set out to depict real events Selma has historical problems. More on that in a minute. Yet even with these not insignificant problems, the portrayal of events leading up to the historic voting rights march from Selma to Montgomery, Alabama early in 1965, even when we know the outcome, makes for gripping viewing. Because of the realism displayed in the film to illustrate the hatred and gut wrenching violence deployed against peaceful protestors Selma is also at times difficult to watch.

Director Ava Duvernay was correct, I think, to put Dr. Martin Luther King, Jr. at the center of her important film. KingHistory tells us, of course, that as important as King’s role was in leading his Southern Christian Leadership Conference in a series of protests across the American South in the 1960’s, many, many others played key roles in advancing the cause of civil rights. Still it is impossible not to come away from Selma viewing King as a great and transcendent moral force, indeed a genuine American hero. Thanks to the multi-dimensional character that British actor David Oyelowo develops on the big screen, King becomes as vital for us as he became for his followers in those hard times a half century ago. It is difficult to understand how Oyelowo was passed over for a Best Actor nomination. He deserves it.

I wondered as I watched the brutal scenes where peaceful African-American protestors are set upon by nightstick and horse whip armed Alabama state troopers wearing gas masks, if a whole new generation of Americans might come to understand, thanks to Selma, the unbelievable courage and determination shown by Americans who were merely seeking the right to vote. History fifty years old might as well be ancient history for many Americans and seeing the brutality and the blood in color on the big screen cannot help but underscore the reality of racism and hatred better than the old grainy black and white television film most of us have seen in documentaries.

Selma is a stunning reminder of where we came from, how far we have come and, unfortunately, how very far we still must go. Go see it and take someone under 35 years old with you.

The History…

I admit to being initially put off by the lack of political nuance in the film, not to mention the portrayal of Lyndon Johnson, but after reading and digesting much of the criticism and praise of Selma I find myself in agreement with Darryl Pinckney who wrote in the New York Review of Books: “A film based on a historical subject, even a beautifully shot one, can remind us without meaning to that although reading in the US is a minority activity, the book is still the only medium in which you can make a complicated argument.”

Perhaps it’s naïve on my part, but I harbor hope that the controversy about the movie, particularly the treatment of Johnson and the virtual absence of acknowledgement of the role congressional and presidential politics played in passage of the Voting Rights Act, will stimulate a greater understanding of the confluence of hatred, protest, violence, politics, bipartisanship, racism and religion that marked the eventual passage of the landmark legislation fifty years ago.

Every film, I guess, needs a villain and Selma has several. I would be personally more comfortable if the j-edgar-hoover-240-400x295filmmakers had cast J. Edgar Hoover, the long-time and truly despicable director of the FBI, as an even greater villain. Hoover deserves that treatment more than Johnson for, as LBJ’s one-time press secretary Bill Moyers has noted, “There’s one egregious and outrageous portrayal [in the film] that is the worst kind of creative license because it suggests the very opposite of the truth, in this case, that the president was behind J. Edgar Hoover’s sending the ‘sex tape’ to Coretta King.”

Moyers refers, of course, to the notorious audio tape made by the FBI and sent to King in an effort to threaten him and, Hoover hoped, drive King from leadership of the civil rights movement. As Moyer says, “some of our most scrupulous historians have denounced” the charge that Johnson had anything to do with the tape. “And even if you want to think of Lyndon B. Johnson as vile enough to want to do that, he was way too smart to hand Hoover the means of blackmailing him,” Moyers said recently.

The film also overplays Johnson’s opposition to the Selma march. In fact, Johnson understood as well as King that very public displays of protest would be needed to create the right kind of political LBJ-MLKenvironment in Washington, D.C. to pass voting rights legislation in 1965, particularly in the wake of the historic passage of civil rights legislation just a few months earlier. When Johnson, along with the rest of the country, saw the brutality in Alabama he realized the political moment had arrived and went to Congress quickly to insist on action.

This scene amounts to the climax of the film and disappointingly much of the drama of those moments is lost on the screen. The staging is all wrong for anyone who knows the history. Johnson spoke in the packed chamber of the U.S. House of Representatives where everyone from the members of the Lyndon Johnson, John McCormack, Carl HaydenSupreme Court to racist southern Democrats expected to hear an historic speech. They were not disappointed. Perhaps it was impossible to film this critical moment of the story where it actually took place, but for whatever reason Johnson’s speech in the film has little of the power it had at the time. It is reported that King, who was watching on television, wept – some of his followers said they had never seen that before – when Johnson adopted the slogan of the movement and vowed “we shall overcome.”

Additionally, Johnson was passionate and animated during that speech, not droll and understated as the usually excellent actor Tom Wilkinson plays the scene in Selma.

Still it is asking too much for one film, even a really fine one, to capture the full story of a tremendous turning point in American political history. If the film succeeds in further explaining and underscoringyoungjohnlewis the role King and his devoted followers – men like Georgia Congressman John Lewis who was nearly killed during the march – played in advancing the cause of civil rights, then that is an artistic accomplishment to be praised and awarded by audiences and by Hollywood.

However, amid the quibbles over historical details and the nit-picks over interpretation it is up to the rest of us to appreciate – and try to recreate in our own time – the enduring political lessons of Selma and the civil rights era. As the historian Julian Zelizer has so ably documented in his terrific new book The Fierce Urgency of Now, many different and sometimes conflicting strands came together in 1964 and 1965 to move the nation and the cause of civil rights forward. King and other civil rights leaders bravely dramatized the racism and hatred afoot in the country and made the cause of civil rights a moral and religious issue. The tragedy of John Kennedy’s assassination gave the cause new power in the hands of a determined new president. Johnson’s stunning landslide win over Barry Goldwater in 1964 (Goldwater opposed the Civil Rights Act passed just before election) gave Johnson a great issue and both greater political and moral authority to create laws. Just as important, the 1964 election created a huge Democratic majority in Congress that LBJ mobilized as a master political strategist. Northern Republicans, particularly Senator Everett Dirksen of Illinois and Representative Charles Halleck of Indiana, embraced civil rights and worked across the partisan divide to pass vital legislation. And organized labor, many in the business community and Protestant, Catholic and Jewish congregations joined the fight at the grassroots. The world was watching and much of the country did come together at an historic moment.

Our history tells us that political and cultural change happens slowly; sometimes so slowly that painful and tragic events precede the needed change. Change almost always involves work from the bottom up and the top down. And change that bends that arc of history toward justice usually means people and politicians must abandon old ways and grow and change. Once he reached the White House, Lyndon Johnson ceased to become a southern politician trapped by the old ways and attitudes of his region. He grew. Dirksen, Halleck and other Republicans saw beyond narrow, conservative interpretations of what the federal government might do. They grew. One has the sense that Martin Luther King was growing, as well. By the time of his death King’s agenda was still centered on civil rights, but had expanded his moral leadership to oppose misguided U.S. foreign policy and embrace a fairer economic policy.

At its best the film and the history reminds us of the long, twilight struggle for racial equality that has been a fixture of the country since its very beginning and that the struggle goes on. It also reminds us of what brave and determined individuals can do to correct injustice as well as what is possible when the people and their politicians are courageous enough to change. There is also much to celebrate in the fact that such a film was made by a supremely gifted African-American woman.

img_vr_373Selma also reminds us that fifty years on the right to vote in the United States is still a controversial issue. A U.S. Supreme Court decision in 2013 gutted key parts of the Voting Rights Act’s “pre-clearance” provision that mandated that states with a history of voting rights abuses receive Justice Department approval before changing their laws. The Congress shows no sign of pushing back on that unfortunate decision.

As the Brennan Center for Justice at the NYU Law School recently reported: “Increased single-party control in state capitals has accompanied a renewed push for voting restrictions. There are strong pushes for strict photo ID requirements in some Republican-led states, including in places where laws were struck down by state courts. This year, the courts — including the U.S. Supreme Court — are again poised to rule on voter ID and other election laws. Courts failed to block a number of restrictive laws last year, and without clear limits, states appear ready to move forward with harsh new measures.”

The film, our history and our current condition remind us both of where we have been and where we still need to go. Go see Selma.

 

Velveeta and the 1 Percent

Last in a series…

The steady demise of the middle class in America offers many story lines. Velveeta, that awesomely yellowy imitation cheese-like substance, is just one.140107175754-velveeta-shortage-620xa

Reuters reports that the Kraft Foods Group, maker of Velveeta, has long been experiencing a decline in sales for the product, but recently the company “reversed course after considering stopping the sale of single-serve packages of Velveeta cheese sauce, which wasn’t moving in traditional grocery stores. After another look at the numbers, Kraft found that shoppers on tight budgets at dollar stores were gobbling up Velveeta sauce in the affordable small size, and the food got a new lease on life.”

The Reuters’ story quotes Anielle Troyan, a call center worker in New York, who said she shops at discount retailers like Family Dollar for items like soap and detergent, but also for Kraft macaroni and cheese and small-sized condiments.

It’s “expensive to cook for one,” she said. “I’m 25, I’m poor, I’m usually going to buy what’s cheapest.” Velveeta has been reborn.

Forget immigration, climate change, even ISIS, Anielle Troyan’s shopping habits present the biggest political challenge of the moment and the greatest challenge to anyone who wants to become the next president. By the way, why would anyone want to become the next president? But, I digress. A subject for another day.

gilded-age.gjf_The gulf between the American life of a Ms. Troyan and the lives of the nation’s political and business elite has rarely been farther apart, perhaps rivaled in modern history only by the run up to the Great Depression or the post-Civil War era that Mark Twain famously dubbed “the Gilded Age.” The ultimate irony for the elites is contained in the capitalist reality that sustaining a robust market economy requires a much larger degree of participation by those, like the Family Dollar shoppers, who have been increasingly left behind.

As the Pew Charitable Trusts noted in a recent report on the state of the American family’s balance sheet: “Between 2010 and 2013, most household incomes fell, particularly among families of color and those without postsecondary education. Over that period, stock ownership decreased for households on all but the top 10 percent of the income ladder, with a particularly steep decline among those on the bottom half. And almost a third of working-age adults reported having no retirement savings or pensions.”

“It is not surprising, then, that recent public opinion polling found American adults pessimistic and anxious about the economy and their own economic stability. They question whether the American Dream is within reach, and many doubt that their children will fare better than they have.”

Among key findings directly from the Pew analysis:

• Although income and earnings have increased over the past 30 years, they have changed little in the past decade. The typical worker had wage growth of 22 percent between 1979 and 1999 but just 2 percent from 1999 to 2009.

• The Great Recession eroded 20 years of consumption growth, pushing spending back to 1990 levels. Over the 22 years before the start of the downturn, household expenditures grew by 16 percent. But households tightened their purse strings after the start of the recession in 2007 and spending has yet to recover. As a result, the net increase in average annual household spending is just 2 percent since 1990.

• The majority of American households (55 percent) are savings-limited, meaning they can replace less than one month of their income through liquid savings. Low-income families are particularly unprepared for emergencies: The typical household at the bottom of the income ladder has the equivalent of less than two weeks’ worth of income in checking and savings accounts and cash at home.

That third finding would seem to speak to the belief, again confirmed by opinion surveys, that many Americans are pessimistic and not at all sure their kids or grand kids will have it better.

The Decline of the Middle Class…

The economics website 24/7 Wall Street has identified the ten states were the middle class seems to be dying the fastest. Four of the ten are in the West – Idaho, Oregon, Washington and California. Idaho, for example, ranked seventh worst in middle class metrics, with the 20 percent of Idahoans in the middle of personal income growth seeing nearly a 5 percent decline since 2009. In terms of personal income the top 20 percent of Idahoans, who enjoy nearly 50 percent of the state’s wealth, saw a 1 percent increase in the same period.

It’s difficult to find a metric that tells a different story about the troubles confronting virtually everyone not among the economic elite. The rabble-rousing Vermont Senator Bernie Sanders may be on to something when he recently told the Washington Post: “The anger is there.” But, he says, “it’s an anger that turns into saying, ‘Go to hell, I’m not going to participate in your charade. I’m not voting.’ So it’s a weird kind of anger. It’s not people getting out in the streets . . . We’re at the stage of demoralization.”

No demoralization at the very top, however. Corporate profits are at an all time high and corporate cash continues to accumulate. Apple alone is sitting on $200 billion in cash, while fending off accusations that it’s not paying anywhere near the taxes it owes in the United States or elsewhere. A good deal of that corporate cash is being used for stock buy backs, a phenomenon economist William Lazonick calls “profits without prosperity.”

Writing in the Harvard Business Review Lazonick says: “Consider the 449 companies in the S&P 500 index that were publicly listed from 2003 through 2012. During that period those companies used 54 percent of their earnings—a total of $2.4 trillion—to buy back their own stock, almost all through purchases on the open market. Dividends absorbed an additional 37 percent of their earnings. That left very little for investments in productive capabilities or higher incomes for employees.”

“Why are such massive resources being devoted to stock repurchases?” Lazonick asks and answers with a simple truth. “Stock-based instruments make up the majority of [CEO] pay, and in the short term buybacks drive up stock prices. In 2012 the 500 highest-paid executives named in proxy statements of U.S. public companies received, on average, $30.3 million each; 42 percent of their compensation came from stock options and 41 percent from stock awards. By increasing the demand for a company’s shares, open-market buybacks automatically lift its stock price, even if only temporarily, and can enable the company to hit quarterly earnings per share (EPS) targets.”

The rich thereby get richer…

While CNN and Fox News have been obsessing over Ebola, or was it measles, the Congress has quietly been doing the bidding of Wall Street and repealing, bit by bit, the Dodd-Frank financial service industry reforms put in place back when the national and world economy was hours from a back-to-the-future visit to 1929.

“In the span of a month,” the New York Times wrote in January, “the nation’s biggest banks and investment firms have twice won passage of measures to weaken regulations intended to help lessen the risk of another financial crisis, setting their sights on narrow, arcane provisions and greasing their efforts with a surge of lobbying and campaign contributions.”

marktwain_cc_img_0In his novel The Gilded Age published in 1871, Mark Twain wrote, we hope tongue in cheek, “What is the chief end of man?–to get rich. In what way?–dishonestly if we can; honestly if we must.”

If you were a betting man or woman with the comfort and security of residing in the rarified air of the growing economy you might be inclined to put some money on Jeb Bush and Hillary Clinton ultimately becoming the next contenders for the White House. Bush has had a good week garnering strong reviews for saying in a Detroit speech: “How do we restore America’s faith in the moral promise of our great nation that any child born today can reach further than their parents? This is an urgent issue: Far too many Americans live on the edge of economic ruin.” Bush is asking the right question, but as news accounts pointed out he offered no specifics and he may turn out to be a questionable advocate for the middle class.jeb bush hillary clinton

Not the Best Messengers…

The former Florida governor, sometimes called “the smarter Bush,” began the year by shedding his relationships with various corporate entities that out of office have made him a wealthy man and thereby able to seek the presidency. Among Bush’s out-of-public-life efforts were stints as an adviser to a private equity firm, not unlike the last Republican candidate, and to Barclay’s, the big British banking concern that took advantage of $8.5 billion in government money during the last financial crisis. Bloomberg Business reports, as the Brits quaintly put it, that Barclay’s is facing more than $8 billion in “conduct” costs by 2017. Make that “bad conduct” for rigging interest rates and to settle investigations into the bank’s manipulation of foreign exchange rates. Bush cut ties with Barclay’s just as Bloomberg notes the bank’s new CEO struggles to “change the culture.”

If Jeb Bush has a credibility gap when it comes to addressing “economic ruin,” then Hillary Clinton does, as well. While taking her time announcing a campaign, Clinton keeps to the rubber chicken circuit of paid speeches, including recent appearances sponsored by the Canadian Imperial Bank of Commerce. Typically Clinton has been pulling down at least $200,000 for such appearances. When UCLA asked if there was “a university rate” they were told sure – $300K. The cash is a necessity apparently since she and Bill left the White House, as she put it, “dead broke.” Clinton’s post-State Department take on the lecture circuit, combined with her husband’s lucrative gabbing, has made it certain that she won’t be shopping at any dollar store, or even Walmart where she once sat on the corporate board.

Hillaryworld may not be exactly “the Gilded Age,” but her speaking contracts do require that she be supplied with “room temperature water…lemon wedges…ginger ale…chairs with two long, rectangular pillows and two cushions to be kept backstage in case the former secretary of state ‘needed additional back support.’” And, of course, as Slate reported a while back, there are the pesky interchanges with real people. “Prestaged” group photos must be deftly handled so that Clinton doesn’t have to wait ‘for these folks to get their act together.” The former secretary of state, it is said, “doesn’t like to stand around waiting for people.”

Lots of Americans are, unfortunately, standing around and waiting for an economy and political system that works again for them. Joe Valenti of the Center for American Progress says it well. “An additional dollar in the hands of a middle income earner is going to drive a lot more spending than an additional dollar in the hands of someone in that top quintile.” While households at the very the top are able to spend enormous sums of money, Valenti says, “at some point there’s only so much that an individual can spend, even on all different kinds of luxury goods.”

For the most part, those of us fortunate enough to have a college education, enough income to invest in the market and steady employment are doing just fine. But nothing lasts forever, not even for the economic and political elite. The American middle class really has built the country and a growing economy insures that the middle class will continue to spend and save and invest, and not just at the dollar store.

The American Dream is in trouble. It is time to change the culture. Don’t believe it – just ask Herbert Hoover.