Falstaff Runs for Senate

/in , /by

Jim Justice reminds us of Sir John Falstaff. Falstaff, you will recall, made appearances in several of Shakespeare’s plays. He was a comic character — fat, buffoonish and untrustworthy. In The Merry Wives of Windsor, for example, Falstaff spends most of his time blustering, drinking with petty criminals and being foolish with local women. But there was always something likable about Falstaff.

West Virginia’s own Falstaff has announced he is running for the U.S. Senate. This presents season ticket-holders for the theater of West Virginia politics with a hard choice: is this comedy or tragedy?

Character

Call me old-fashioned, but I still hope the personal character of candidates for office matters to voters. Here are some aspects of character. Doing what you say you will do, without making excuses later about why you didn’t. Having some guiding moral and ethical principles, not just personal gain. Telling the truth, even when to do so is costly. Treating other people with respect, especially those less fortunate than you.

Justice switched political parties from Democrat to Republican at a Trump rally in 2017. A number of Democratic politicians have switched parties recently, especially in heavily red states. This suggests that the move is driven by a desire to be re-elected rather than a true philosophical conversion.

But the timing of Justice’s switch was remarkable. He had just been elected Governor as a Democrat, gladly accepting campaign contributions from supporters who were promised he would actually be a Democrat. A candidate with character would have made the switch in time for voters to assess what it meant for them.

Much has been written about the failure of Justice’s business ventures to pay their bills. In 2019, Forbes magazine called him “the deadbeat billionaire.” This disrespect is totally justified. Justice-owned companies have left a trail of unpaid workmen and contractors, mine reclamation obligations, mine safety fines and tax obligations. A federal judge has just found three companies controlled by the Justice family liable for six years of UMWA pension premiums.

Sure, there are other family members involved in the management of these companies. But a promise is a promise. If Big Jim wanted these promises to be kept, they would have been. That’s what happened when four Eastern Kentucky counties had to sue Justice companies for $2.4 million in back taxes — the bad publicity forced Justice to pay up.

Falstaff as Governor

In a stroke of campaign brilliance during his run for Governor in 2015, Justice’s billboards asked West Virginians this question: “Tired of Being 50th?” This referred to West Virginia’s perpetual dead last rating on measures of social well-being. Hell yes we’re tired of it, and lots of people voted for Justice for that very reason.

Sadly, West Virginia hasn’t changed much since Justice became Governor. Here are our rankings in 2023 on some important metrics: labor force participation (50th), drug overdose mortality rate (50th), average teacher pay (50th), obesity rate (50th), life expectancy at birth (50th), per capita income (49th), infant mortality (47th), availability of broadband internet (44th), teen pregnancy (42nd).

Justice doesn’t get all the blame. While he has been Governor the Republican Party has held a super-majority in the Legislature. They have no political excuse for failing to address these shameful numbers. Instead, they are more interested in protecting gun rights, launching school choice boondoggles that sap public school resources, and telling women what they can’t do with their own bodies.

The U.S. Senate

It is hard to have a more important job in this country than U.S. Senator. Issues of huge importance are decided in the Senate. It is presumed to be the legislative body possessing the mature judgment of the nation. Sometimes, but rarely, it has been the home of buffoons and grifters.

One colorful member of of both the House of Representatives and the Senate in the early republicJim Justice hoists dog's derrière in cheeky response to ... was John Randolph of Roanoke. He was regarded as one of the more brilliant and formidable legislators of his time. Randolph was often accompanied on the House floor by a pack of hunting dogs.

If West Virginia and the nation have an ounce of good fortune left, Jim Justice will not have the opportunity to bring Baby Dog onto the floor of the United States Senate.

The Hot Air About Methane

/in , , , /by

When President Biden left for the COP26 meeting in Glasgow recently, his primary plan for reaching the greenhouse gas reduction goals in the Paris Accords was in disarray.  The cause of this disarray was mainly the opposition of West Virginia Senator Joe Manchin.  But Biden had Plan B, which involves a two-pronged approach to sharply reducing methane emissions.  In Glasgow, Biden announced that more than thirty countries have pledged to cut emissions of methane 30% by 2030.  Given our decades-long focus on reducing carbon dioxide, this pivot to methane is a bit disorienting.

Carbon dioxide is by far the largest contributor to climate change, and it comes from recognizable fossil fuel sources such as coal-burning utilities, and automobile tailpipes. Carbon dioxide persists in the atmosphere for hundreds of years, making the climate change it causes not just a current problem, but a future one as well.

Yet some experts say that methane (CH4) is a bigger problem than carbon dioxide (CO2).  While methane dissipates naturally after about 100 years, its pound for pound impact is 25 times greater than carbon dioxide in trapping heat reflected from the Earth’s surface.

Sources of Methane

Some methane occurs naturally from the decay of plant and animal matter. Domestic livestock, such as beef cattle, pigs and sheep, produce CH4 as part of their normal digestive process.  But human-produced methane far exceeds what is produced naturally.

Agriculture, including raising of cattle for human consumption and management of animal wastes, is the single largest source of methane. Natural gas and petroleum systems are the second largest source. The U.S. oil and gas industry emits more methane than the total emissions of greenhouse gases from 164 countries combined. Landfills are the third-largest source.

Some politicians call natural gas a “bridge fuel,” meaning that burning it emits less carbon dioxide than burning coal.  But it is wrong to call natural gas clean. Methane is the primary component of natural gas. Methane is emitted during the production, processing, storage, transmission, and distribution of natural gas.  In addition, burning natural gas still releases carbon.

Satellite imagery of the Permian gas field in Texas show huge plumes of methane erupting from hot spots throughout the area. No human artifice or industrial process is infallible, and that is certainly true with gas production and pipeline transmission. Major failures to capture methane and leaks from pipelines, pumps and valves are endemic.

Biden’s Plan B 

Not surprisingly, Biden’s plan to reduce methane emissions focuses on the oil and gas industry.  Regulations issued under President Obama placed controls on methane emissions from new and modified sources in the industry, but failed to address existing wells, production facilities and pipelines.  Even as toothless as they were, these regulations were shelved during the Trump Administration.  In April 2021, Congress restored the Obama-era methane regulations.

Then on the eve of Biden’s trip to Glasgow, the Environmental Protection Agency issued a proposed new rule that covers existing sources of methane emissions in the oil and gas industry. The proposed rule involves a comprehensive monitoring program for new and existing well sites and compressor stations, and proposed performance standards for other sources, such as storage tanks, pneumatic pumps, and compressors.

The proposed rule would reduce 41 million tons of methane emissions from 2023 to 2035, the equivalent of 920 million metric tons of carbon dioxide. That’s more than the amount of carbon dioxide emitted from all U.S. passenger cars and commercial aircraft in 2019. The EPA will receive public comment for 60 days and projects a new final rule by the end of 2022.

Also Biden’s $1.2 trillion infrastructure bill, which just passed both houses and awaits the President’s signature, contains a provision to spend $4.7 billion to clean up abandoned oil and gas wells, many of which spew methane into the atmosphere.  Central West Virginia is littered with these orphan wells.

But the stronger second prong of Biden’s Plan B is a methane tax contained in the Build Back Better social spending bill that has not passed either the House or the Senate. As described in a recent Forbes article, the plan would tax methane emitted in excess of specified thresholds and begin at $60 per ton. It would take effect in 2023, with the revenues used to administer the program, provide technical and financial assistance to companies for monitoring and reducing emissions, and to support communities affected by pollution from oil and gas systems.

A fee on methane would boost the incentive for companies to reduce emissions and require companies to internalize the cost of the pollution they emit. A methane fee would have double duty – raising revenues and discouraging pollution – while holding industry accountable. Climate policy experts say that the two-pronged approach – regulation and fee — is necessary to shut down methane emissions, particularly because executive regulations alone could be undone by a future administration.

The Ball is in Manchin’s Court

By now, we are all aware of the immense power that has fallen to Senator Joe Manchin purely because he is a key vote in a balanced Senate.  Unfortunately for the environmental community, his power has been exercised to block legislation that is widely seen as necessary to meet the challenge of climate change.  Having already caused the removal of Biden’s plan to radically reduce CO2 emissions in the electric power sector, all eyes are now on Manchin regarding the methane tax in the Build Back Better Act.

Initial signs are not good, even though Democrats reduced the starting fee level from $1500 per ton to $60 to win Manchin’s support.  But Manchin appears still to be opposed, arguing that since we have the technology to reduce methane then the technology should be used, not a fee that he regards as punitive.  One wonders how it is “punitive” to impose a fee designed to cause the largest industrial producers of methane finally to end their harmful practices.  Instead, it seems exactly the sort of measure required to make them internalize the true cost of their behavior. The language of money is the language this industry understands.

 

The Big Lie Conspiracy

/in , , /by

The Declaration of Independence was based on a conspiracy theory. The theory was that the King of England and his high ministers had secretly agreed to deprive the American colonists of their rights as English citizens and to impose tyrannical rule. The Declaration recites a long list of facts offered as proof of the theory. In retrospect, it is unlikely that this theory was actually true, but events at the time took on a momentum that made further proof then beside the point.

This type of conspiracism, which tries to make sense of a disorderly world by asserting that powerful people are controlling events behind the scenes, can be quite useful in a democracy – provided that a serious attempt is made to develop the factual proof. But this useful type of conspiracism has been replaced today by an insidious type not concerned at all with facts. Instead of factual validation it seeks only social validation, often through the number of people who follow or “like” a Facebook post or retweet some outrageous allegation. Repetition and affirmation are the currency. This social validation makes the conspiracy allegations “true enough” without more.

In their 2019 book A Lot of People Are Saying, Russel Muirhead and Nancy Rosenblum call this the “new conspiracism.” They argue that while people who engage in this new conspiracism allege plots against the constitutional order and national values, they do not offer solutions or prescribe practices or institutions that should replace the malignant ones. Their intent is simply to delegitimize the current order. Delegitimization is the cleaving of the public from the sense that government has rightful authority. It undermines leaders of government and institutions and seeks to deprive those institutions of any claim to our respect or consent.

Take the assertion made by Donald Trump before the 2016 election that the election would be “rigged.” He did not bother to explain how it would be rigged or by whom.  He didn’t urge the adoption of a new system for fair elections. He simply characterized the whole presidential election process as corrupt, knowing that if that assertion couldn’t be proved entirely untrue, then it was true enough for people predisposed to believe him. And he made it true enough by constantly repeating it. If his intent had been to prepare his followers for an election loss, then Trump would have stopped claiming the election system was rigged after he won. But instead he continued making this claim.

In this way, Trump sought to use conspiracism to undermine a central democratic institution.  Many historians of authoritarianism and the decline of democracy have cited undermining public faith in elections as a key strategy of would-be dictators. Now, of course, the 2016 rigged election claim has made way for the Big Lie – that Joe Biden was not legitimately elected President in 2020 because the election was stolen from Trump. Those responsible for this heist are never identified.

The Big Lie fits the new conspiracism construct in two important ways. First, it is not concerned with facts and its continued vitality doesn’t depend on facts. Indeed, all the facts that have been developed about the 2020 election show that it was one of the cleanest elections in modern history. Some 19 legal challenges were made to election results in various states. In order to survive, lawsuits require supporting facts but because the Big Lie has no supporting facts – only hyperbolic rhetoric – all 19 of these claims were dismissed.

The absence of supporting facts has not prevented a substantial slice of the public from accepting the truth of the Big Lie. On May 18, 2021 the New York Times reported on two opinion polls conducted by reputable firms. One poll in Arizona concluded that 78 percent of Arizona Republicans believe the Big Lie. A Monmouth University poll found that almost two-thirds of Republicans nationwide do as well. This may stem from the fact that we have sorted ourselves into like-minded communities. Republicans who believe the election was stolen from Trump might do so because they don’t know anyone who voted for Biden.

The Big Lie also fits the new conspiracism construct because it delegitimizes elections and related constitutional institutions. On January 6, 2021, our Capitol building was stormed by a violent mob for the sole purpose of interrupting the counting of Electoral College votes, the last step in confirming Biden’s election victory.  This rabble, fired up by the Big Lie, had utterly lost faith that the national election had been fair.

One is tempted to include the new state laws in Georgia and Texas designed to restrict early voting and absentee ballots as among the products of the Big Lie conspiracy. But I think this would be a mistake. These restrictions on access to voting were part of the Republican playbook before Trump and the Big Lie came along. In truth, these restrictive new voter laws have not been proposed as a remedy for any deep state “conspiracy” responsible for stealing the election from Trump.

Republican leaders are hoping that making it harder to vote in communities of color will make it more likely their party will prevail in elections. While the ultraconservative demographic reliably turns out to vote, this older, white voting group is an increasingly smaller slice of the voting public. Found mainly in rural areas, that demographic is falling behind a more liberal demographic in the cities. The handwriting is on the wall and some other Republican strategy besides weak attempts at voter suppression must be devised.

Restricting access to voting is just a tactic that will not yield big results.  What is the Republican grand strategy? Only a dramatic change in the way the public thinks about – or trusts – the electoral process can prevent the marginalization of the current Republican Party. If voters mistrust the electoral system, the effectiveness of the Democratic Party in the cities and among the educated might be derailed. Perhaps that dramatic change is what is the Big Lie really seeks to achieve — if we can’t beat them at the ballot box, let’s degrade the whole system. How’s that for a conspiracy theory?

Trump’s Obstruction of Congress: The Real Constitutional Threat

/in , , /by

In the ongoing trial of Donald Trump, the House Managers have laid out a case on two articles of impeachment. Article I – abuse of Presidential power – received the most time and attention by the House Managers and the President’s defense team. However, Article II, charging the President with obstruction of Congress, describes conduct that will have more far reaching consequences for the nation. At the President’s direction, the White House and federal agencies have refused to produce a single document. He has also directed key federal employees to refuse to appear for testimony. If a President can unilaterally declare impeachment proceedings in the House to be invalid, and on that basis deprive those proceedings of crucial evidence, what is left of the impeachment power?

But unilaterally declaring the House impeachment proceedings invalid is exactly what the President, through his White House Counsel, did in an October 2019 letter. The letter asserted that the impeachment inquiry was invalid because the House failed to take a vote to authorize an impeachment inquiry before two of its committees began issuing subpoenas. The letter cited precedent from earlier impeachments. The real objection was that the House had not taken a preliminary vote making House members who supported it politically accountable. Therefore, according to White House Counsel Cipollone, “President Trump cannot permit his Administration to participate in this partisan inquiry.”

As we have heard, the Constitution bestows on the House of Representatives “the sole Power of Impeachment.” What does this really mean? It means that no other branch of government – neither the Senate, nor the courts nor the President — can decide what constitutes “Treason, Bribery or other high Crimes and Misdemeanors” for purposes of impeachment.

Furthermore, Article I, Sec. 5 of the Constitution gives the House, not the President, the power to determine the rules of its proceedings. No other branch of government can insist upon or determine the rules by which the House exercises its power of impeachment. Even if all prior impeachment inquiries started with a House vote, which is dubious, it is not for the President to decide that the House is bound by this precedent. There is nothing in the Constitution requiring such a vote.

The President’s defense team has argued that several privileges were involved in the President’s decision to defy subpoenas for witnesses.  Among these is executive privilege, which is the privilege of the President to maintain the confidentiality of communications between himself and other members of the executive branch, usually involving sensitive military or national security matters.  Executive privilege is rooted in the doctrine of separation of powers. But when President Nixon tried to shield the Watergate tapes by a blanket claim of executive privilege, the Supreme Court rejected the claim. As with any other claim of privilege against producing relevant evidence, the assertion of executive privilege must be specific.

The problem with executive privilege as an excuse for a blanket refusal to cooperate is that is has never been asserted either generally or specifically.  The White House Counsel’s letter referred to privileges the President could potentially invoke but did not actually assert executive privilege.  Even in the Senate trial so far, the President has not asserted executive privilege. To do so, the President would have had to identify the particular document or communication containing privileged material.

Even more fundamental, a privilege that has been waived cannot be asserted.  In the House Manager’s brief, they state

Regardless, executive privilege is inapplicable here, both because it may not be used to conceal wrongdoing – particularly in an impeachment inquiry – and because the President and his agents have already diminished any confidentiality interests by speaking about these events in every forum except Congress.

The President himself declassified the call record with President Zelensky.  He has asserted in public what he has and has not discussed with Ambassador Sondland, Chief of Staff Mulvaney and Ambassador Bolton about holding up security aid in exchange for investigations. This destroys privilege as to the subject matter of these communications.

If the House can be thwarted in its search for facts in an impeachment inquiry by the blanket refusal of the President Trump to cooperate, then the impeachment power will be neutered. There will be no sensitive matter on which a future President will not likewise make that same assertion.  The result will be that the power to check a reckless and lawless President will no longer exist. The power to subpoena material from the executive branch is essential for Congress to exercise the power of impeachment that it alone has.  As House Manager Schiff argued, without Article II (Obstruction of Congress) there can be no future Article I (Abuse of Power).

The first Article of Impeachment alleging abuse of power is serious.  It alleges a perversion of the power of the President into a tool for the President’s personal benefit at the expense of an ally. This seriousness of this conduct should not be minimized. But in terms of its long term damage to the Constitution, it pales before the second Article. We may finish the impeachment trial without a conviction on Article I, but if there is no conviction on Article II our constitutional power to check the executive will be in tatters.

What Are We Going To Do About It?

/in , , , , /by

Even before the upcoming public impeachment hearings, we know the facts. Despite the blizzard of falsehoods issued by Presidential tweet to cover up the crime – it was a “perfect call”, there was no quid pro quo — all these have been discredited, one by one, then abandoned. Most recently, Ambassador Gordon Sondland changed his earlier testimony and now remembers that he did tell a Ukrainian diplomat that military aid would be withheld if there were no investigation of Hunter Biden’s company.

We know this: the President used our money, not his own, to squeeze a desperate country into providing political dirt on Joe Biden, Trump’s possible opponent in the 2020 election. This extortion was intended to benefit himself, not the country. The military assistance he withheld in this shakedown had been allocated by our representatives in Congress for the fight against Russia in eastern Ukraine. Trump’s July 25 call with Ukrainian President Zelensky was so improper – so illegal – that even White House staffers were shocked and attempted a cover up. So the question is not what happened. Rather, the question is what are we going to do about it?

Trump’s apologists are flailing. One assertion is that the whole impeachment inquiry is tainted because we do not know the identity of the original whistleblower, and that person might be hostile to Trump. But it is completely irrelevant how the inquiry began or the sentiments of the person who began it if the inquiry has produced the truth – and it has. All of the major allegations in the whistleblower complaint have been corroborated by actual witnesses to the call.

Another argument is the standard “whataboutism.” What about Joe Biden? Why didn’t “they” do something about Biden when he publicly threatened consequences for Ukraine if a corrupt prosecutor were not removed? But Trump is President and Biden never was. Biden never took action on any such threat, if one were actually made, while Trump did. Whataboutism is simply an attempt to deflect attention from the conduct of the President with an argumentative tactic used on elementary school playgrounds.

Trump’s enduring support among his partisan base suggests that many people may simply be rejecting the plain facts. After all, politics operates at an emotional level at least as much as an intellectual one. Some of Trump’s supporters will be loyal no matter what. He is the leader of their team, their tribe. This causes them to reject uncomfortable actual facts and accept “alternative” facts. It has been happening this way nearly every day during Trump’s Presidency.

There is another segment who are beginning finally to acknowledge the facts about what Trump did – they have little choice. But they argue that Trump has committed only a small “political” offense that should not result in his impeachment or removal from office. As a general matter, it is legitimate to debate the seriousness of an offense when determining the punishment. In this case, however, Trump’s offense is not trivial. It involves corruption and abuse of power.

But wait, there’s more. The nation has just come through a contentious debate over the Mueller Report on interference in the 2016 election. Part of what Mueller and his team investigated was whether the Trump campaign or individuals close to the President conspired with Russia to produce and use unfavorable information against his then opponent Hilary Clinton. On July 25 could there have been any doubt in Trump’s mind that soliciting a foreign government to interfere in our elections was a seriously wrong thing to do? Yet this is exactly what Trump did in his call with Ukrainian President Zelensky.

I have written earlier that a special circle in hell is reserved for Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who spin the facts to defend him or remain silent. It is said that these people fear the political consequences if they honestly evaluate the facts and conclude that Trump crossed the line. They are calculating what they stand to lose from holding Trump accountable even if they believe the Constitution and the good of the nation requires it. This is corrupt in itself.

Those of us in this part of West Virginia are relying on three elected officials to make the right call on this important matter: Congressman Alex Mooney and Senators Shelly Moore Capito and Joe Manchin. It will probably be the most important vote they take in their political lives.

Expecting Congressman Mooney to be a fair judge of the facts is a fool’s errand. He has taken every opportunity to cling to Trump’s coattails. He recently barged into a secure hearing room to disrupt a deposition that was not open to the public. Mooney’s claim that the procedures were unfair is absurd since they were basically the same procedures used in previous impeachment inquiries and Republican committee members were participating in the deposition. So now I expect Congressman Mooney to produce some other equally shallow reason to oppose holding Trump accountable. He’s just waiting for someone in the Republican leadership to tell him what that is.

Despite Congressman Mooney’s antics, it seems likely that the House will vote to impeach the President. That means a trial will be held in the Senate, where both of our Senators – one Republican and one Democrat – will have a vote.

Writing in the Washington Post, Jennifer Rubin said:

When a politician demands a private benefit (opposition research for a politician’s private use) in exchange for performing public act (releasing aid), that is called soliciting a bribe. That sort of mixing private gain with public conduct is precisely the definition of corruption. It is this sort of corrupt dealing that the impeachment clause in the Constitution contemplated when it refers to “treason, bribery or other high crimes and misdemeanors.”

If these facts are confirmed in a Senate trial, the only way our Senators could spare Trump from removal is if they conclude that the offense is not serious enough to justify removing the President. This is essentially what happened when President Clinton was impeached for illegal conduct that did not amount to a breach of national trust.

At this present moment we have a different situation. If Trump is not removed he will be emboldened to do more of the same to preserve his power and future Presidents may be as well. We know the facts. They are bad. What are we going to do about it?

Kavanaugh’s Disqualifying Flaw

/in , , /by

Yesterday, much of the country was riveted to their televisions, or other devices, watching the testimony of Christine Blasey Ford and Brett Kavanaugh before the Senate Judiciary Committee. I went a number of places last evening and this was all anyone could talk about. The ostensible issue is whether Kavanaugh, President Trump’s Supreme Court nominee, committed a sexual assault on Ford in 1982 as she claims. The larger and more important issue is what kind of person should serve on the Supreme Court.

Unfortunately, the way the inquiry was set up we are really unable to determine whether Kavanaugh did it. The Senate Judiciary Committee is not a court of law. The devices we have honed over centuries for finding the truth, notably compelling witnesses to testify and then cross-examining them, were not used. Ford and Kavanaugh each got an opening statement and then were subject to questions from Senators. Republican Senators ceded their opportunity to question Ford to a prosecutor specially retained for this purpose. Ford answered whatever questions were asked of her and seemed to be genuinely trying to help the process. Kavanaugh was combative, answering the questions from “friendly” interrogators but arguing with Democratic Senators and frequently interrupting them. Committee Chairman Charles Grassley ran the proceeding as a political spectacle not a trial.

Republican Senators were upset that Kavanaugh has been put in this position. They repeatedly questioned the motivation of Ranking Member Diane Feinstein for holding onto Ford’s letter, in which she initially raised the allegation, until after Kavanaugh’s vetting process had nearly gotten to its end. They might have a legitimate point about this, but that point doesn’t go to whether Kavanaugh is actually guilty of sexual assault or whether he is appropriate for the Supreme Court. Instead it simply complains about the partisan behavior that pervades everything these days, of which the Republicans are equally guilty.

To be fair about this, I confess I don’t know whether Kavanaugh did it. Each witness was 100% certain that his or her own story was correct and the other’s was wrong. Ford’s testimony was compelling.  She did not say or behave in any way that suggests she is making the story up or that she has a political axe to grind. After all, the letter in which she raised the allegation against Kavanaugh was written at the point when Kavanaugh was one of several on Trump’s list for consideration and before he was actually nominated. She had nothing to do with the manner in which the allegations were brought forward by Feinstein and the Democrats. In fact, she asked for confidentiality and is as much a victim of the circus as Kavanaugh. There are holes in her recollection but she didn’t try to fill them in to make the story better or more complete.

Kavanaugh’s anger and emotion were also genuine, which perhaps suggests that he is telling the truth as he believes it. He repeatedly pointed out that the three other people whom Ford says were present at the party cannot confirm it took place. He presented a calendar from high school in which he listed the places he planned to be and showed how after these events he wrote in who had been present. There is no meeting or party listed of the sort that Ford alleges. He also pointed to a lot of women who would attest to his character, although this kind of evidence is rarely allowed in court because how one behaves in other circumstances is not proof that he acted in the same way in the circumstance in question.

There are a number of other things that could be said for and against the stories of Ford and Kavanaugh. But we are not going to get any other facts or testimony because the Republicans are resisting the call of the Democrats for an FBI investigation of the allegations. They feel this is just a ploy on the part of the Democrats to delay the vote on the nomination until after the mid-term elections in November. Perhaps they can now understand the Democrat’s fury at the refusal of Mitch McConnell to bring forward President Obama’s nominee Merrick Garland until after the 2016 election.

In any event, if the objective is to find the truth then more information rather than less is appropriate. Kavanaugh, who has been a federal judge for twelve years, repeatedly dodged the question of whether he wanted an FBI investigation. Clearly, if such an investigation provided no corroboration for Ford, then Kavanaugh would sail through the nomination vote. Instead, it almost looks like he and the Republicans are afraid of what would be learned if the FBI interviewed Mark Judge and others. So I don’t think the Republicans are interested in the truth so much as getting their nominee across the line. And maybe Democrats really don’t care as much about the truth as preventing this.

Even Chairman Grassley conceded that if Ford’s allegations are true it would be disqualifying for Kavanaugh. Nobody disputed this. Yet after yesterday’s hearing any honest broker would have to say that it is possible they are true – that Kavanaugh actually committed the sexual assault. I think the real question the full Senate will confront is whether we are prepared to put someone onto the Supreme Court for life about whom there is this much doubt. Do we care about the integrity of the Supreme Court or not?

For me there is an easier way out of this quagmire. In my view Kavanaugh disqualified himself yesterday when he forcefully claimed that he is the victim of unjust character assassination by the Democrats on the Judiciary Committee who only want revenge “for the Clintons.” This is a glimpse into the way Kavanaugh views the world and it is not pretty. The Democrats did not concoct the allegations against him. The Democrats were not the ones seated in front of the Committee telling a believable story of sexual abuse by laughing frat boys. Yet Kavanaugh filters this as something insidiously partisan. Keep in mind that this is a man who evaluates disputes for a living, but when the dispute involves him he sees nothing but a nefarious plot by his political foes. His mode of thinking and his combative way of presenting it speak volumes about how fair and even handed he could be on the Supreme Court. You can bet that as a Justice he would scorch Democrats and their concerns as his own revenge. The Senate proceeding was not perfect as a truth finding process, but the stress it created exposed Kavanaugh’s disqualifying flaw.

Coal Is Killing Us

/in , , , /by

On June 1, 2018 President Trump directed Energy Secretary Rick Perry to take all necessary steps to stop the closure of coal-fired power plants on national security grounds. This directive was issued simultaneously with the release of a draft memo arguing that the reliability of the nation’s power grid will be threatened if coal-fired plants are allowed to disappear through market forces that now make them the most expensive method to generate electricity. Trump’s directive was roundly criticized by many as an unprecedented intrusion into the market for electricity that “picks winners and losers,” something Republicans have long criticized Democrats for doing. But none of the debate about Trump’s directive has focused on the undeniable fact that small particulate matter emitted from coal-fired power plants is killing thousands of Americans each year.

The West Virginia Congressional delegation predictably cheered Trump’s directive, continuing their decades-long pandering to Big Coal and the fiction that coal mining creates significant employment in West Virginia. Sen. Shelley Moore Capito said “I am very supportive of the administration’s decision to take action to preserve our coal-fired and nuclear power plants.” Sen. Joe Manchin actually took credit for Trump’s directive, saying “I am glad President Trump and his administration are considering my idea to use the Defense Production Act to save coal-fired power plants with emissions controls and protect our national security.”

Surely our Congressional delegation and the many Republican opponents of Obama’s Clean Power Plan know in their heart of hearts that climate change is a real threat and that because it is, in part, man-made it can be slowed by changes in our behavior now. One scientist recently quipped that to argue that the Earth’s rapid warming in the last decades is not man-made is like arguing that the Earth is flat.

These politicians are not stupid. Instead, what they are is calculating. The problem is that policy action now to reduce carbon dioxide emissions has immediate negative effects on the coal and electric power industries, their investors and their employees. This immediate negative is balanced against uncertain future benefits like avoiding sea level rise. Because these benefits will mostly inure to future generations, they can today be more easily ignored, minimized or dismissed as fraudulent. When it comes to climate change action, the voters in a coal state like West Virginia can scream louder about present pain, with some justification.

All this makes it harder to understand why climate change activists do not focus their arguments on the harmful effects of coal-fired power generation that are occurring now. These harmful effects are not the result of carbon dioxide (CO2) or even the other harmful greenhouse gasses that are emitted from power plants.  They are the direct and measurable result of the tiny particulate matter produced by burning coal that rolls out of the tall stacks, spreading death downwind of these power plants.

Sulphur dioxide (SO2) is another harmful by-product of burning coal, partly responsible for fine particles in the air. These fine particles are linked with acid rain and smog. As evidence began to tightly link increased levels of SO2 with the burning of coal in the 1970s, the electric and coal industries denied the link and questioned the motives of those investigating the link. Sound familiar?

But in 1990 the Acid Rain Program adopted by Congress required power plants to cut their SO2 emissions in half by 2010. The technology used for this was the installation of scrubbers. Since then, this program and other regulatory action have dramatically reduced SO2 emissions and have done so at a lower cost than even environmentalists predicted.

Despite a reduction of emissions of around 50% since 1980, power-plant particulate matter, mostly from SO2, was still estimated to be responsible for 15,000 premature deaths in 2010.

The main health effect of SO2 is to impair the function of the upper respiratory system. High concentrations of sulfur dioxide can affect breathing, cause respiratory illnesses, and aggravate existing heart and lung diseases. Exposure at very low concentrations can irritate the lungs and throat and cause bronchitis. Exposure to low levels of SO2 over a long period depletes the respiratory system’s ability to defend against bacteria and foreign particles. Particularly sensitive groups include children, the elderly, people with asthma, and those with heart or lung disease.

Soot emitted by coal-fired power plants doubles down on the effects of SO2. Soot is associated with chronic bronchitis, aggravated asthma, cardiovascular effects like heart attacks, and premature death. US coal power plants emitted 197,286 tons of small soot particles in 2014.

The risk of death from air pollution caused by burning coal is not evenly distributed throughout the United States. In fact, West Virginia has the second highest number of deaths per capita in the country behind Ohio and just ahead of Pennsylvania. One large, inefficient West Virginia power plant in Pleasants County is itself estimated to be responsible for 40 deaths, 65 heart attacks and 630 asthma attacks.

In February 2018, First Energy Corp. announced a decision to deactivate the Pleasants Power Station in early 2019. Following this, Sen. Joe Manchin wrote to Energy Secretary Perry about the national security implications of allowing coal-fired plants to be closed, and specifically mentioned the Pleasants Power Station. There is considerable speculation in the West Virginia press that Trump’s directive to Secretary Perry will result in the salvation of the Pleasants operation.

In her 2003 book, Coal, A Human History, Barbara Freese describes how the requirements of the British coal mining industry led to the development of the steam engine followed by the railroad.  These developments in turn produced much more coal, which itself then fueled the Industrial Revolution.  The process was replicated in the United States.  She asks rhetorically where we would be without coal and the revolution it created.  Her answer is that we would have developed as an international society more slowly but perhaps in ways that we would find more satisfying today. All this, of course, is wistfulness.

Our political leaders need to realize that there are terrible consequences from burning coal to generate electric power. Most of the attention from environmental activists is focused on climate change created by CO2.  But if we all pay attention to the fact that coal is killing us – now – we may be able to overcome the arguments of those with a stake in coal who claim that climate change is a false crisis created by the environmental left. The deaths of our children and elderly is no false crisis.

The Rich Benefit Bigly From Trump’s Tax Reform

/in , , , , , , , /by

The Tax Cuts and Jobs Act (TCJA) has added mightily to the already serious income and wealth inequality in America. Yet our state’s Republican representatives in Congress seem oblivious that most people in this state are poor relative to the rest of the country. They have boasted about what amounts to the crumbs on the table that middle and lower income West Virginians gain from this Act. For example, Rep. Alex Mooney, who represents much of the Panhandle in Congress, announced that he voted for “tax cuts for all West Virginians.” Always obsequious when it comes to the White House, Mooney said “President Donald Trump has been a true leader on delivering tax relief for all Americans and I am looking forward to continuing to work with him to create more jobs and to keep our economy growing.” There is no other way to put it — this emphasis on the illusory benefits enjoyed by the broad middle of our society is just willfully deceptive. The true winners under the TCJA are the rich, who will benefit at the expense of the rest of us.

Even the frequently touted tax reductions for lower and middle income taxpayers are not intended to be permanent. These will decline over the next eight years and ultimately expire. Sen. Shelley Moore Capito argued in the December 27, 2017, Spirit of Jefferson that the new law doubles the standard deduction to $24,000 for couples. But she failed to mention that this increase also expires in 2025. Furthermore, she didn’t even try to defend some of the law’s permanent features, which benefit the wealthy. These are the $1.5 trillion tax cuts for corporations, which will do nothing but increase the value of corporate stock in the hands of the wealthy, and the repeal of the Affordable Care Act’s individual mandate. The repeal of the mandate will generate $53 billion in annual savings by 2027, paying for about one-third (about 4.7 percentage points) of the bill’s 14-percentage-point permanent cut in the corporate rate. But it will leave millions more uninsured and raise premium rates for many others.

Here are three additional key ways in which the TCJA benefits the rich at the expense of the rest of us:

Distributing Tax Cuts Disproportionately to the Rich. The Tax Policy Center, a joint effort by the Brookings Institution and the Urban Institute, put it this way: “In general, higher income households receive larger average tax cuts as a percentage of after-tax income, with the largest cuts as a share of income going to taxpayers in the 95th to 99th percentiles of the income distribution.” This result will clearly play out in West Virginia.

Tax Benefits

Doubling the Estate Tax Exemption. The TCJA doubles the exemption from tax on estates valued from $11 million per couple to $22 million per couple. Doubling the exemption reduces the share of estates facing tax from 0.2 percent to 0.07 percent, leaving only 1,800 taxable estates nationwide. It is hard to understand why this tax change was so important — unless satisfying rich donors is considered. The estate tax rate is only 17%, far less than on ordinary income for this group of taxpayers. Still the tax exemption will be worth on average $4.4 million to those upper-end estates who will now be exempt. To put this in perspective, $4.4 million is about what it would cost to give 1,100 Pell grants to low income students.

Creating a Tax Break for “Pass-Through” Income. Although the corporate tax rate is reduced by 14 points, this benefit mainly applies to large corporations.  Many small corporations and limited liability entities account for business income by passing it through to the individual owner. Trust me on this, most of these business owners are not among the struggling taxpayers in this country. The corporate tax rate doesn’t apply to passed-through business income. Instead, the individual tax rate for that taxpayer would apply. It was not enough that the individual tax rates will be reduced, the TCJA also creates a special new tax benefit for pass-through business income. The final TCJA allows small business owners to deduct 20% of their passed-through business income.

I get it that current Republican ideology is interested in directing policy benefits to those in society they call the “makers,” while being far less concerned about everyone else whom they label the “takers.” The TCJA is a perfect example of how this works, even though Republican politicians continue to argue falsely that the beneficiaries of this law are the middle class. To some extent, the horse is out of the barn — this bad tax law passed warts and all. But we cannot let this go. At every opportunity in the run-up to the 2018 mid-term elections and then on to 2020, we need to keep this issue at the front of the debate.

Government by the Rich, for the Rich

/in , , , , , , , , /by

The much maligned Tax Cuts and Jobs Act (TCJA) is regarded by most Americans as a naked effort by the Republican Party to reward its key donors, among them the wealthiest of Americans. Public polling has consistently been negative for this “reform” legislation. The law’s modest temporary tax relief for the middle class is just window dressing. The public has simply disregarded this window dressing and correctly assessed the stink from what has been served up to them.

The TCJA is an enormously complex law, with poorly understood provisions the effect of which won’t be known until well after the law takes effect. Since the tax code has a profound effect on the behavior of individuals and businesses, and hasn’t been revised since 1986, a major revision should be thoroughly debated in the light of day. But to do that would have permitted the TCJA’s ugly flaws to be exposed and for opposition to solidify. So in adopting the TCJA Republicans jettisoned any pretense of democracy.

There were no public hearings. Some of the law’s provisions were added at the very last minute. The Congressional Budget Office had no time to evaluate the Republicans’ flimsy claim that increased business activity spurred by the tax cuts would raise substantial new tax revenues. The Bill was available for review roughly three days before the final Senate vote. The Democrats, who were not opposed to revisions to the corporate tax structure and might have made reasonable suggestions, were shut out of the process. This is how the Republicans govern.

One wonders why a massive tax cut was so important for Republicans in the first place, particularly in the face of negative public polling. The Trump Administration is riding the wave of economic recovery that began well before Trump took office. National unemployment is hovering around 4%, generally regarded as full employment. Corporations are already sitting on $2.3 trillion in cash reserves. They do not need massive tax cuts to free up cash for investment. The answer is that big donors are furious about not receiving the big tax cuts that were promised when the Republicans repealed Obamacare, which they failed to do.

Nobel-prize winning economist Paul Krugman has argued in the New York Times:

A large part of the answer [for why a huge tax cut was so important] is that many Republicans now see themselves and/or their party in such dire straits that they’re no longer even trying to improve their future electoral position; instead, it’s all about grabbing as much for their big donors while they still can. Freedom’s just another word for nothing left to lose; in the GOP’s case, that means the freedom to be the party of, by, and for oligarchs they always wanted to be.

Krugman can be intemperate at times, but he seems to be on to something. At all the key forks in the policy road, the Republicans have rewarded themselves and their rich friends. The TCJA represents a huge redistribution of wealth from the poor and middle class to those in the upper income brackets who hardly need it.

By far the largest impact of the TCJA will be the reduction of corporate tax rates. These reductions will themselves be responsible for nearly $1.5 trillion in reduced tax revenues. The Republican argument is that corporations will use this new cash to increase business capital investment, hire new workers and raise wages. But there is nothing in the TCJA that requires a business to use the tax cuts in this way. Many businesses have said they will use the money for non-productive uses like increased dividends and share repurchases. These uses only serve to increase the value of the corporation’s stock in the hands of those who own it.

Who benefits when the value of corporate stock goes up? Only 52% of the American public owns any stock whatever, even in retirement accounts, and those owners surely won’t be found in the bottom half in wealth and income. President Trump is fond of bragging about how the stock market is breaking records. Can’t you just hear the Champagne corks popping in all the nation’s homeless shelters?

In my next post, I will detail how the rich will directly benefit from the TCJA at the expense of the rest of us. Certainly, this statute ought to be one of the first things on the agenda of any new Democratic majority in Congress to reverse. In fact, instead of just undoing this bad law, the TCRA may unleash the Democrats to make substantial changes to the tax code to benefit affirmatively those whom the Republicans have, for now, shut out.

High Crimes and Misdemeanors

/in , , , /by

Impeachment of the President has occurred twice in American history and was preempted in a third case by the resignation of the President. This little-used mechanism of republican government has recently been on the lips of many, fueled by an unpopular President and a special counsel investigation into the conduct of his subordinates. If a President is impeached by the House of Representatives and convicted by the Senate, he or she is removed from office, but may be subject to later criminal prosecution. The constitutional grounds for impeachment are “Treason, Bribery or other high Crimes and Misdemeanors.” Treason is defined in the Constitution itself and bribery has a clear legal meaning. But what are high crimes and misdemeanors?

I am certainly not a constitutional scholar, but the answer to this question and much more can be found in several sources. Most useful were Raoul Berger’s Impeachment: The Constitutional Problems (1974) and Impeachment: A Citizen’s Guide (2017), by Cass Sunstein. Understanding the history of the language is important.

At the 1787 Constitutional Convention, delegates agreed on a unitary executive – the President — who would not share executive power with other officers. But how prevent this President from becoming as oppressive as the king just overthrown? The preliminary solution was that the President would be elected for a term of four years. An abusive or incompetent President would not be re-elected. This did not satisfy skeptics, who argued that much mischief could be accomplished within four years. The final solution was to add the remedy of impeachment, a tool used from time to time by the British Parliament and American colonial legislatures to control abusive royal ministers.

Checks and balances on the potential misuse of power are everywhere built into the Constitution. The idea that Congress could remove the President through impeachment worried James Madison and others who feared the legislative branch would have too much power and that the President would end up serving at the pleasure of Congress. This concern was driven by initial drafts of the impeachment clause that included “maladministration” as a ground.

But through Madison’s arguments, the convention moved from this broad language toward the notion that the President should be impeachable only for a narrow and specified category of abuses of the public trust. Madison proposed treason and bribery as the sole grounds for impeachment. The terms “high crimes and misdemeanors” were added near the end of the debate to satisfy George Mason, who argued that treason would not reach many great and dangerous offenses. There was no discussion on what the terms meant.

There was no discussion because “high crimes and misdemeanors” had an accepted meaning at the time with which these delegates were familiar. The terms had been in use in English political life since 1642. Here in a nutshell is what these terms mean.

  • The terms high crimes and misdemeanors do not refer to criminal conduct in the ordinary sense. Criminal conduct on the part of the President is neither necessary nor sufficient for impeachment. There was no such crime as a misdemeanor when the terms were first in use – petty crimes were called trespasses. High crimes and misdemeanors may be also be criminal, such as bribery, but lots more is covered.
  • The non-criminal nature of impeachment is confirmed by other parts of the Constitution. The Fifth Amendment guarantees that no person shall be subject to double jeopardy for the same offense. Because the impeachment provision declares that a convicted President can be subject to later criminal prosecution, impeachment was clearly meant as a non-criminal proceeding. Furthermore, while a criminal defendant is guaranteed the right to a trial by jury by the Sixth Amendment, a President is tried by the Senate.
  • High crimes and misdemeanors are political offenses against the state, and impeachment is designed to secure the state not punish the offender. Impeachment has been reserved for gross abuses of power or violations of the public trust. Remember that impeachment was used mainly to rid the state of the king’s corrupt ministers, who were not subject to the normal criminal process.
  • The modifier “high” refers both to the position of the offender and the seriousness of the offense. Impeachment is reserved for especially serious offenses. Only officers in high positions of trust can commit these egregious political offenses.
  • Intense political opposition and a general sense that the President is a failure are not sufficient grounds for impeachment. Nor is a sense that the President’s policies are wrong and harmful to the nation. If these points were not true, both Jimmy Carter and George W. Bush would have been impeached.
  • Because high crimes and misdemeanors are political crimes that cannot be committed by someone who does not hold high political office, they do not include reprehensible conduct committed before a President is elected, unless the conduct procured his or her election. An example might be some fraud or misconduct by the candidate that improperly influenced the election, like the Watergate bugging cover-up by President Nixon.

Arguing for the impeachment of Justice William O. Douglas in 1970, then-Congressman Gerald Ford famously asserted that “an impeachable offense” is whatever the House, with the concurrence of the Senate, “considers it to be at a given moment in history.” But this view is wrong. The terms high crimes and misdemeanors have a relatively precise meaning that was intended, in part, to limit the availability of impeachment. When considering this limit, the two actual impeachments of sitting Presidents were probably unconstitutional.

President Andrew Johnson was a Southerner who oversaw Reconstruction with a galling sympathy for the South. He was hugely unpopular for this. But his impeachment in 1868 was specifically for firing Secretary of War Stanton in violation of a statute passed by Congress to prevent him from firing Stanton. Johnson in good faith believed he had the right to fire officials who worked for him and that the statute was unconstitutional. This position was later vindicated by the Supreme Court. Johnson avoided conviction in the Senate by a single vote. This is an example of an intense disagreement between Congress and the President over matters of policy and law, which are rather frequent and are not egregious abuses of power simply because a majority of Congressmen might say they are.

When President Bill Clinton was impeached, he was a relatively popular President who had implacable opposition among Republicans. They believed him to be a liar and relentlessly sought grounds to impeach him. Recall that Kenneth Starr produced an investigatory report that focused on Clinton’s relationship with Monica Lewinsky and his efforts to cover it up by lying to his wife, his staff, the Cabinet and the American people. But Cass Sunstein remarks that

the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in the light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense.

Clinton did lie under oath about his affair and this is unlawful, but it wasn’t an impeachable offense because it was not an abuse of his Presidential authority. It was a tawdry offense that practically anyone could commit.

One thing common to these two impeachments was the extreme factionalism in Congress at the time. In Federalist No. 65, Hamilton noted

the prosecution of [political offenses] will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.

Factionalism and passion will always be present in the midst of supercharged political issues, but in our present situation it will do nothing but get in the way of sound judgment.

Some commentators have argued that we have been too timid in the use of the impeachment mechanism. In an excellent opinion piece in the online journal Vox, published on November 30, 2017, Ezra Klein observes

There are plenty of people who simply should not be president of a nuclear hyperpower, and Trump is one of them . . . . We have grown too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office. If the worst happens, and Trump’s presidency results in calamity, we will have no excuse, no answer to give. This is an emergency. We should break the glass.

The piece concludes with a proposition at odds with the original meaning of the impeachment clause: “being extremely bad at the job of president of the United States should be enough to get you fired.”

However, events are moving quickly and there may be more to consider than bad job performance. Two days after this post was originally written, Trump’s former national security advisor, General Michael Flynn, pled guilty to lying to the FBI about his contacts with the Russian ambassador, and according to the Washington Post “court records indicate he was acting under instructions from senior Trump transition officials in his dealings with the diplomat.” Working in tandem with a foreign power to defeat a political adversary in a contest for the Presidency, and then attempting to obstruct an investigation into it, or to cover it up, is a “high crime and misdemeanor” in the true, original sense.

The best approach may be to consider only the actions said to be the basis of the potential impeachment behind an imaginary veil of ignorance about the President and his policies. It should not matter whether we agree with his policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country, an abuse of power, enabled by his high office. Put another way, would we consider Trump’s actions to be a gross abuse of Presidential power if committed by a President whose policies we supported? If the answer is yes, then he should be removed.