About That Reading List…

After I described my course on Individual Rights and the Common Good in a previous blog, several readers asked if I would post the reading list.

Because I’m at home with limited access to both my office and memory, I don’t have the complete list, but here are those I do have: Thomas Smith, Aristotle on the Conditions for and Limits of the Common Good, from Volume 93 of the American Political Science Review; John Locke’s Second Treatise of Civil Government (Chapters 9 and 10); DeTocqueville’s Democracy in America (Book 2, Chapters 27, 28 and 29) and an essay “DeTocqueville on Individualism” from a website titled The Laughing Agave; John Stuart Mill’s On Liberty (Chapter One); John Rawls’ A Theory of Justice (not the book, but an excerpt published by the journal Philosophy and Public Affairs in the summer of 1985; The Procedural Republic and the Unencumbered Self, by Michael Sandel, from the journal Political Theory in 1984; Liberalism, Community and Tradition by Joel Feinberg, from Volume 3, #3 of Tikkun; Church, State and Women’s Human Rights, by Martha Nussbaum, from Criterion: A Publication of the Divinity School of the University of Chicago; cases considering the rights of LGBTQ persons against claims of religious liberty: Bowers v. Hardwick, Romer v. Evans, Lawrence v. Texas and Obergfell v. Hodges, and cases I don’t have in front of me balancing property rights against nuisance laws and other governmental regulations.

The official course description was: Considers the tension between individual and majoritarian rights in our constitutional system, and the effects of that tension on the formulation of public policy.

The course was an investigation of that tension–the right of citizens to personal autonomy, on the one hand, and the equally strong human need to be part of a cohesive community, on the other.

As I pointed out in the course syllabus, the fundamental issue in political philosophy–as well as in day-to-day governance–is who decides? What sorts of decisions must government be empowered to make, and which must be left to the individual? Answering that, of course, requires that we explore many other questions–what do we mean by “the common good?” How much social consensus is necessary for a government policy to be considered legitimate?

Can public policies encourage the the development of an inclusive “we” from America’s increasingly diverse “I’s” without violating fundamental individual rights?

The class was cross-listed, meaning that both undergraduates and graduates could enroll. Because it wasn’t a required class, it attracted students who were actually interested in exploring those questions. It was fun to teach–or more accurately, to introduce them to what important thinkers have said about these issues, and to serve as a discussion guide.

As I listened to the political debates Americans have been having this year, I’ve really missed the kinds of thoughtful analyses and debates I heard from my students. Conspiracy theories that provide easily identified “bad guys” and heroes, religious dogmas that impose answers rather than helping adherents wrestle with important questions, insistence upon categorizing everyone as “us” or “them” –these are all hallmarks of a flight from genuine engagement and civic responsibility.

I have hopes that with Biden’s election, and his choice of competent adults to head the agencies charged with doing the people’s business, we can emerge from the embrace of ignorance, the corruption and the bigotry of this horrible four-year experiment with government by tantrum, and approach policy argumentation the way most of my students did.

For those of you who wanted the reading list–I hope you’ll let the rest of us know your reactions as you plow through!

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Pesky Data!

Andrew Yang’s campaign for the Presidency introduced the UBI , or Universal Basic Income, to millions of Americans unfamiliar with the concept. He put that policy debate “on the table”–following which policymakers have ignored or ridiculed it.

In previous blogs about the UBI, I have acknowledged how unlikely it is that contemporary American lawmakers would pass, or even consider, such a program. But research suggests a high probability that  millions of jobs will be lost to automation within the next 15-20 years– a probability that will present a daunting challenge that America’s current inadequate and bureaucratic social safety net is clearly unable to meet.

The right-wingers who believe that taxation is theft, and the contemporary Calvinists who believe that poverty is the result of sloth and/or moral defect, respond to UBI advocacy with horror: those sluts who are producing babies in order to get added welfare payments of a munificent 150/month would obviously become an even greater burden on the “makers.”

Pilot programs and academic research continue to crank out evidence to the contrary. Those programs continue to multiply:the latest effort is in Germany, where a Basic Income Pilot Project will start next spring and will send 122 people €1,200 ($1,422) per month for three years. No strings attached. The study, initiated by the German Institute for Economic Research and My Basic Income, a Berlin-based nonprofit, will investigate the effects of an unconditional basic income.

Recently, a new multi-agency report backed by the United States Agency for International Development reported on a project to compare the effectiveness of workforce training programs with direct cash transfers. It found a “marked increase in entrepreneurialism, well-being and productivity within the cohort that received only cash.” Other experiments have found that unrestricted cash payments went for food, medicine and education, and did not–as cynics warned– increase joblessness or substance abuse.

Our policymakers, of course, prefer ideology to pesky evidence…

There actually is substantial data showing that, contrary to Americans’ deep cultural disdain for social welfare programs, a UBI would be both efficient and socially unifying.  Universal programs escape the stigma of benefits targeted to the poor.

Aside from the ideologically-grounded and empirically dubious belief that “handouts” encourage sloth and vice, the major objection to a UBI is cost. My own proposal for finding the money to pay for such an expensive program would begin with ending fossil fuel and other subsidies that have long since outlived any usefulness they may have had, and curtailing our bloated military expenditures–all measures that are overdue in any case. But there are several other approaches.

A while back, William Gale of the Brookings Institution’s Hamilton Project made a persuasive case for coupling a UBI to a tax that would pay for it– a 10 percent Value-Added Tax (VAT).

As he pointed out, a VAT is a national consumption tax—like a retail sales tax but collected in small bits at each stage of production. It raises a lot of revenue without distorting economic choices like saving, investment, or the organizational form of businesses. And it can be easier to administer than retail sales taxes. The big problem with such a tax is that it is usually regressive–but interestingly, not when combined with a UBI.

As I explained in an earlier post,

The Tax Policy Center estimates that the VAT in conjunction with a UBI would be extremely progressive. It would increase after-tax income of the lowest-income 20 percent of households by 17 percent. The tax burden for middle-income people would be unchanged while incomes of the top 1 percent of households would fall by 5.5 percent.

It may seem counter-intuitive, but the VAT functions as a 10 percent tax on existing wealth because future consumption can be financed only with existing wealth or future wages. Unlike a tax imposed on accumulated assets, the VAT’s implicit wealth tax is very difficult to avoid or evade and does not require the valuation of assets.

Assuming that Gale’s numbers are sound, a VAT would generate more than enough money to pay for a UBI. Meanwhile, a growing body of research confirms the benefits of the UBI approach to social welfare.

But this is America, where Republican senators are climate change deniers. America, where Republican governors dismiss overwhelming evidence that mask wearing helps abate a pandemic. America, where lawmakers reject the very idea of implementing the sort of national healthcare programs that work well elsewhere.

America–where our lawmakers pay absolutely no attention to evidence contrary to their preferred beliefs.

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Pay Your Dues!

I recently saw yet another study that attempted to quantify just how much money is lost to national treasuries by reason of what is politely called “tax avoidance.” 

The report, from an organization named the “Tax Justice Network,” is touted as the first study to thoroughly measure how much money each country loses each year to corporate tax abuse and private tax evasion. Its calculations were based upon data that had been self-reported by corporations to tax authorities.

I realize that one person’s loophole is another person’s policy choice, but with that caveat…

The research found–unsurprisingly–that wealthy countries are the primary drivers of tax revenue loss. (I say “unsurprisingly” because you have to have money to evade taxes.) Wealthy countries contributed most to the total of $427 billion in losses annually. Those losses, as the report noted, affect the ability of countries all over the world to provide services to the public.

This report puts numbers to the problem, but any sentient citizen is aware of the arguably pathological aversion to taxes displayed by many wealthy citizens and corporate entities. Certainly that’s true in the United States, where politicians with straight faces equate taxation with theft, and bemoan the extraction of dollars from presumed self-made “makers” to support those they dismiss as “takers.”

Probably the best response to this mischaracterization was Elizabeth Warren’s smackdown  a few years ago:

There is nobody in this country who got rich on their own. Nobody. You built a factory out there – good for you. But I want to be clear. You moved your goods to market on roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory… Now look. You built a factory and it turned into something terrific or a great idea – God bless! Keep a hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

Economists are quick to point out that economic growth–and the ability of wealthy Americans to prosper in an economy heavily dependent on consumption–requires that those at the bottom of the income distribution have disposable income sufficient to spend in the marketplace. Corporate bigwigs don’t create jobs–job creation is a function of demand. (No one is going to be hired to produce more widgets if few people have the resources to buy those widgets.)

What I always wonder, however, is whether these “captains of industry” treat their country clubs and other membership organizations the way they treat their countries. How would the Orange Menace react if members of Mar-A-Lago declined to pay their dues?

Those golf courses need tending. The clubhouse roofs and mechanical systems require maintenance. The properly servile “help” won’t be there to bring you your Scotch and soda if they aren’t being paid. Etc. Why don’t the same people who presumably understand the need to pay dues adequate to keep these organizations functioning acknowledge that–as members of the polity–they have similar obligations to the country?

Because they do know better.The loss of those billions of dollars isn’t accidental.

“A global tax system that loses over $427 billion a year is not a broken system, it’s a system programmed to fail,” said Alex Cobham, chief executive of the Tax Justice Network.

The ability to evade paying one’s membership dues–the chutzpah required to be a “free rider” on the contributions of others– doesn’t mean that a businessperson is “smart.”  To the contrary, it demonstrates just who the real “takers” are.

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More Evidence That Being Rich Doesn’t Necessarily Mean Being Smart…

I was alerted to this lawsuit by Juanita Jean,  although it has since been pretty widely reported.

It has so many satisfying aspects…

It seems that one of the wealthy fat cats supporting Donald Trump sent a lot of money–two and a half million dollars, to be exact– to “True the Vote,” to support that organization’s lawsuits to overturn the results of the election. Given the uniform failure of those suits–most of which have been withdrawn for admitted lacks of any evidence of fraud or wrongdoing– he wants his money back.

As Juanita Jean writes,

Those kinds of fights are a Democrat’s dream, especially if you personally know one of the people involved and have had fights with them before.

The person Juanita Jean personally knows is a co-director of True the Vote named Cathy Engelbrecht. Engelbrecht used to be her neighbor, and Juanita reports that she

“would hold meetings all over the county with mostly old people at churches and fleece them for money explaining how we Democrats cheat in elections.  Then she got volunteers from her rich Republican friends with clipboard to go “monitor” voting places in black and Hispanic precincts.”

Juanita Jean may be able to recite chapter and verse about Cathy Engelbrecht (there’s more at the link), but those of us who live in Indiana can counter with tales of Engelbrecht’s Hoosier co-director, Jim Bopp.

Indeed, these two seem made for each other.

Until he actually won the Citizens United case, (a case that presented the Court’s majority with an opportunity to reinforce an ideological bias) Bopp was a predictable and annoying joke in Indiana’s legal community–one of those “Christian” lawyers who could be counted on to insert himself in “culture war” lawsuits or any effort to moderate the lopsided power of the GOP. (Bopp and the organizations with which he’s affiliated–Right to Life, Focus on the Family– know what God does and doesn’t want. Presumably, God wants Republicans to  gerrymander, suppress votes, and take buckets of money from unidentified sources…) Bopp’s most fervent–and successful–efforts have been against campaign finance laws.

With True the Vote, Bopp has confirmed that his skills, such as they are, are political, not legal. As one legal blog reports, Fred Eshelman, the owner of a healthcare-focused investment company, took the Houston-based non-profit at its word when it promised results.

The complaint in the case alleges that Republican “powerhouse lawyer” James Bopp promised to file lawsuits in the seven closest battleground states, serve state election officials with subpoenas, and use the resulting data to flag irregularities.( Bopp’s status as a “powerhouse” is wholly dependent upon his victory in Citizens United-the lawsuit that opened the floodgates to corporate money in elections through the rise of super PACs.)

Eshelman asserts that he repeatedly requested information about the lawsuits filed by True the Vote..

But Eshelman notes that the memos, reporters and whistleblowers never came, and all that he received in their place were four complaints filed in four states: Wisconsin, Michigan, Georgia, and Pennsylvania. All of the complaints were voluntarily dismissed, in a decision the investor claims had been made “in concert with counsel for the Trump campaign.”

In the Wisconsin case, Bopp promised that “evidence will be shortly forthcoming” before withdrawing their complaint without that evidence on the morning of the hearing.

Well before the election, reports by The New York Times and numerous other media outlets, had made it abundantly clear that True the Vote was simply one of the many Republican efforts at vote suppression.

All of which leaves me with a question: why does someone who has so much money he can send two and a half million dollars to an organization do so without bothering to vet either the organization or the people running it? Anyone who is even slightly acquainted with political reality knows that in-person vote fraud is virtually unknown in the U.S.–and that overturning a Presidential election by alleging such fraud is about as likely as capturing the tooth fairy.

Granted, there’s something satisfying in watching the opportunists and bottom-feeders turn on each other. The Germans call it schadenfreude.

But cases like this tend to confirm that having lots of money isn’t a measure of IQ.

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Constitutional Rights At The Schoolhouse Door

As regular readers of this blog and my former students know, I  approach my course on “Law and Public Affairs” through a constitutional lens. There are some obvious reasons for that focus: many of my students will work for government agencies, and will be  legally obliged to adhere to what I have sometimes called “the Constitutional Ethic.” Due to the apparent lack of civic education in the nation’s high schools, a troubling number of  graduate students come to class with very hazy understandings of the country’s legal foundations.

Freedom of speech seems particularly susceptible to misunderstanding.

The first problem is that a significant number of Americans don’t “get” that  the Bill of Rights only restrains government. Walmart or the Arts and Entertainment Channel or (as one angry caller insisted when I was at the ACLU) White Castle cannot be sued for denying you your First Amendment Right to express yourself.

The most difficult concept for my students, however, has been the principle of content neutrality. Government can–within reasonable limits– regulate the time, place and manner of citizens’ communication, but it cannot favor some messages over others. (I used to illustrate that rule by explaining that city ordinances could prohibit sound trucks from operating in residential neighborhoods between the hours of 10 pm and 7 am, but could not allow trucks advocating for candidate Smith while banning those for candidate Jones. I had to discontinue that example when I realized that none of today’s students had the slightest idea what a sound truck was…)

One example I did continue to use was public school efforts to control T-shirts with messages on them. Private schools can do what they wish–they aren’t government–but public schools cannot constitutionally favor some messages over others. This is evidently a lesson that many Indiana schools have yet to learn. A brief article from the Indianapolis Star reports that the ACLU is suing a school in Manchester, Indiana, after a student was forced by administrators to go home for wearing a T-shirt with the text “I hope I don’t get killed for being Black today.”

According to the Complaint, students at the school are allowed to wear T-shirts with Confederate flags and “Blue Lives Matter” slogans. It describes the plaintiff, who is identified only by his initials, as one of the few Black students at the school.

“Schools cannot selectively choose which social issues students can support through messages on their clothing,” Ken Falk, the ACLU of Indiana’s legal director, said in a prepared statement on Monday. “Students do not lose their constitutional rights at the schoolhouse doors. The refusal of the school to allow D.E. to wear his t-shirt is a violation of his right to free speech.”

The school would be within its rights to ban all “message” T-shirts (although I can hear the grumbling now). Favoring certain messages over others, however, is a violation of the principle of content-neutrality –a core precept of the Free Speech Clause that prohibits government from favoring some messages over others.

The courts give school administrators a good deal more leeway than other government actors, on the theory that providing an educational environment requires a larger measure of control than would be appropriate for adults. But there are limits; as Ken Falk noted, and the Supreme Court affirmed in Tinker v. DeMoines, students do not leave their constitutional rights at the schoolhouse door.

Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values. Too many public schools are operated as totalitarian regimes–environments that stress compliance and group-think, rather than teaching critical thinking, acquainting young people with the values of a democratic society, and encouraging civic debate and engagement.

When school officials themselves routinely break the rules, is it any wonder so many young people graduate still unaware of them?

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