Kavanaugh’s Disqualifying Flaw

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

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

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

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

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.

Delegate Riley Moore and Business Tax Cuts

On October 19, 2017 Delegate Riley Moore, who represents the Shepherdstown District in the West Virginia House of Delegates, published an opinion piece in the Charleston Daily Mail. The piece urged Congress to pass the Trump “tax reform” bill for the sake of economic growth, particularly in West Virginia. Putting aside that Del. Moore could not have known the details of the Republican tax bill on October 19 because it had not yet been made public, he extolled the virtues of various tax cuts he expected the plan to contain. In particular, Del. Moore is fond of tax cuts for business. His logic is the following. The desirable end result is more economic activity and good jobs for everyone. So far, so good. The means of achieving that desirable end result is to give over a trillion taxpayer dollars to corporations — with no strings attached — and hope that they spend this money in productive ways. What could possibly go wrong with this plan?

Republicans have creative ideas from time to time, and Del. Moore is no exception. He sponsored a bill during the last legislative session that would have created tax credits to stimulate new businesses in West Virginia. But Republicans never want to pay for their creative ideas with new tax revenue. Instead they want to cut into already existing tax revenue that would be available for other useful government work. Tax credits are one way to do this. Tax credits are tax reductions for specific taxpayers who meet the requirements, yet they are still essentially transfers of our public money in exchange for certain taxpayer behavior. Is encouraging this behavior more desirable than some other use for the tax money? The problem is that when these tax credits are proposed it is impossible to identify precisely what government program will be eliminated in exchange, or will suffer for lack of funding. The proponent of the plan doesn’t have to make the case that the tax credit is better than an environmental program, more student loans, or some other worthy project. So the public cannot intelligently answer the question.

Indiscriminate business tax cuts are far worse. Under the Republican world-view, money is best diverted from public uses to private uses. The end result is that government has less and less ability to do what we need it to do. Make no mistake, every dollar that is cut from the taxes of a business is a dollar that we could otherwise use to fund our schools, our healthcare and our public safety. Indiscriminate business tax cuts don’t even pretend to require desirable behaviors from the business like tax credits do. Business tax cuts are just giveaways of our money plain and simple. Today the Wall Street Journal reported that the Trump tax plan in its present House version would permanently reduce the corporate tax rate to 20%, costing $1.5 trillion dollars in lost tax revenue.

Has anyone else noticed that Republicans only seem to be concerned about the deficit and the debt when it is “entitlement” spending programs that are under consideration? True tax reform would shift tax burdens around to be more equitable and streamline administrative procedures. But it would also find new revenues to make up for revenues lost – revenue neutrality. Trump’s tax plan as initially revealed by the House Republican leadership hardly makes an effort to claim revenue neutrality. Paul Ryan and others say that the enormous tax cuts will stimulate growth over the next decade and from this growth new tax revenues will come. No economist will stand up to support this trickle-down baloney. If the so-called “fiscal hawks” in the Republican Party don’t oppose this thinking, then we should all change the channel the next time they complain about spending programs from the Democrats.

Del. Moore’s opinion piece in The Daily Mail also spoke warmly of middle-class tax cuts and on this it is hard to disagree with him. Putting more money in the pockets of those who need a boost is exactly the kind of alternative use for tax revenues that does make sense. It will also boost the economy because middle-class taxpayers will be much more likely to spend their tax cut than the wealthy, who will save any tax cut they get.

But a business is entirely different than a middle-class taxpayer. Sure a business tax cut will free up some money for the business, but what’s to keep that money from being spent on a vacation in the tropics for the owner, or a non-productive use like paying down debt or share repurchases? Writing in the Washington Post, David Lynch notes

Several companies already have indicated that they will use excess funds to pay off debt, increase dividend payments or repurchase their own shares rather than create new jobs or raise wages. On Wall Street, the consensus is that workers will be the last in line behind shareholders, creditors and investment bankers when the extra corporate cash is distributed.

The Republican tax plan contains absolutely no requirement that a business use the tax cut for investments that will create jobs. If Del. Moore wants to have his house painted, you can be sure he doesn’t just send checks to all the painters in town in hopes that one will show up at his house.

If this country is going to give away its tax revenue to corporations for the goals of generating economic activity and creating jobs, there are ways to ensure that the money is employed to these purposes. One need look no further than the way the money from the recent West Virginia road bond referendum will be used. The goals were increased economic activity in the short term and more jobs for West Virginians. There is a linear connection between these goals and the means chosen to achieve them. Projects will begin in the current fiscal year all over the state. The West Virginia Jobs Act requires that contractors receiving these funds employ a workforce of at least 75% West Virginia residents and a proposed amendment introduced at the recent Extraordinary Session of the Legislature would put some teeth into this requirement. Of course, there can always be slips between the cup and lip. But this arrangement creates more confidence that our tax money will be used for the desired purpose than trillion dollar business tax cuts with no strings attached.

Jeff Flake’s Conservative Conscience

Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.

 

Moral Politics

Recently, the Charleston Gazette published an editorial that I have not been able to quit thinking about. The editorial was entitled Morality, Irony and the Fate of America. It pointed out that the current Republican agenda is to take healthcare away from 20 million Americans, 170,000 of them West Virginians, and direct that money to the rich in tax cuts. It noted further that the proposed Trump tax cuts would cut one-fourth of the SNAP benefits for low-income families, undermining nutrition for 100,000 West Virginians. All with the same result of benefitting the rich. And “various other programs that keep the wolves from the door, that give people breathing space to improve their own circumstances, are at risk in the ongoing conflict.” According to the Gazette, this is not just wrong as a matter of policy. It is immoral.

Using morality as the basis for political argument has a rich history in America and elsewhere. But this is dangerous territory because each of us has a personal view of morality fashioned by family, religion, education and personal experience. When it comes to morality we are not all using the same language. As but one example, opponents of abortion use one version of morality to fuel their opposition. Freedom of choice proponents use a different version to argue for the opposite outcome. Still it seems worthwhile to discuss whether there is a moral politics and, if so, what it is. So, with no expertise in political philosophy or thinking about morality, I now venture there.

The first question is the legitimate role of government. This, of course, is a hot topic these days. Beginning from the conservative view of its proper role, government should only do the things that to be effective must be done collectively. In this category would be things like national defense, large infrastructure projects, and the tax collection system that funds both. Since government has a legal monopoly on force, then also among the things government should do is make laws for common safety and security, enforce the laws through policing and corrections, and resolve disputes through the court system.

Are social welfare programs that create a floor beneath the less fortunate among these things? Here we are talking about highly popular programs like Social Security, Medicare, SNAP benefits, unemployment compensation and disability benefits. If social welfare programs are to be undertaken at all, then it is easy to conclude that these programs are also among the things government should do.

Only government can mount social welfare programs on the scale that would be effective. Most social welfare programs operate on insurance principles that spread the risk of catastrophic outcomes and their cost throughout the whole population instead of forcing the individual victim to bear the full weight. This has to be organized collectively. There may be some among us who would say that churches and private charities could do this work but this is a pipe dream. Private charity is important but it would be quickly overwhelmed without collective government action.

Well then, does government have an obligation to devise and implement social welfare programs – to support the needy and less fortunate among its citizens? Libertarians and other followers of the “objectivist” philosophy of Ayn Rand would say no. They believe that the individual prospers by being selfish, asking for no help from others and giving none.

This objectivist view is inconsistent with the Judeo-Christian philosophy of action and with the teachings of every organized religion. Religious leaders whose business it is to consider moral issues consistently say that helping others in need is a moral imperative. A recent letter to the editor of the Gazette from the Executive Director of the West Virginia Council of Churches urged our Congressional representatives to maintain their support for SNAP benefits on religious grounds.

Then there is the fact that every modern government recognizes this imperative, those in Western Europe more than others. Social welfare programs became more common as the phenomenon of empathy spread in society. But mere empathy withers in the face of the high cost of acting on it. As New York Times columnist David Brooks has argued, those we recognize as having a strong moral compass have sense of obligation to some religious, military, social or philosophic code. They would feel a sense of shame or guilt if they didn’t live up to the code. Whatever the source of this moral sense, when it comes to social welfare most people have it. It would be difficult to find a political leader in any country, except perhaps our own, willing to deny that government has a moral obligation to build some sort of support system for those in need.

Without anything to back this up other than a visceral feel, I believe that our sense of moral imperative, and therefore the legitimacy of government social welfare programs, is highest when dealing with basic needs. Wide swaths of society can rally around programs that eliminate or reduce hunger, but far fewer around programs that, say, provide recreational opportunities. In the high legitimacy category I would also put minimizing pain and disease, homelessness, the infirmities of old age, and responding to natural disasters. But certainly there can be a lot of debate around what we are morally compelled to do.

Unlike the debate about abortion, there is no countervailing moral argument behind the current Republican opposition to Medicaid and SNAP benefits. Medicaid expansion, and even the basic idea of Medicaid itself, has been threatened in the fever to repeal Obamacare. How, or if, we manage health insurance for those able to afford it is a different question entirely from whether we provide it for those who can’t. The fact that Congressional Republicans have wrapped the two issues together in the repeal effort demonstrates that the argument to undermine Medicaid cannot stand on its own.

When Paul Ryan, Mitch McConnell and their surrogates offer any reason behind their hostility to Medicaid and SNAP benefits it is a fiscal, not a moral reason. They say we must cut back on these benefits because they are growing at a rate that is unsustainable over the long run. I don’t pretend to know whether this is true but it seems unlikely we couldn’t find some adjustments to make them sustainable. What is perfectly obvious is that the people who receive these benefits are in need now — today. The moral imperative for government to act should not yield in favor of some cool assessment of future bookkeeping. Doing what should be done may not be easy, but that is often the nature of moral choices.