The American Prospect

Mapping the White Working Class Guy Molyneux

The Democrats in Opposition Harold meyerson

Portable Benefits for America’s Changing Workforce Nick Hanauer & David Rolf

liberal intelligence

Winter 2017

Resisting Trump How Trump Will Take America to War Jeremi Suri

Trump’s World

John Shattuck • Will Hutton Manuel Pastor

The Fate of the Constitution Erwin Chemerinsky Sam Bagenstos

Trumponomics

Simon Johnson • David Dayen Jared Bernstein • Justin Miller

Schooling and Scandals

Rachel M. Cohen • Erin Richards

Who Are We Americans Now? Paul Starr

The Audacity of Hope Robert Kuttner

The Case for Resistance Randall Kennedy

Was It Misogyny?

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contents

volume 28, number 1 Winter 2017

Columns 5 prospects The Audacity of Hope by Robert Kuttner 112 Last word It’s the Misogyny, Stupid! by Adele M. Stan

notebook 9 the Case for Resistance by Randall Kennedy 11 Mapping the White Working Class by Guy Molyneux 15 Voter Suppression Works Too Well by Gabrielle Gurley

Features 18 Who Are We Americans Now? by Paul Starr 24 The Democrats in Opposition By Harold Meyerson 29 Latinos and The Future of American Politics By Manuel Pastor 34 Trump and the World 35 Blustering Toward Armageddon by Jeremi Suri 40 The Rise of Populist Nationalism in Europe and the United States by John Shattuck 45 America’s Interest in a Global Rule of Law by Will Hutton 50 Trump versus the Constitution 51 Justice at Risk by Erwin Chemerinsky 57 Civil Rights DéjÀ Vu, Only Worse by Samuel R. Bagenstos 62 Trump and the Economy 63 The Folly of Trumponomics by Simon Johnson 64 Sidebar: Watch Out for Even More Tax Breaks—for the Rich by Jared Bernstein and Ben Spielberg 68 Dismantling Dodd-Frank—and More by David Dayen 74 Can Labor Fight Back? by Justin Miller 80 Education According to Trump 81 The War on Public Schools by Rachel M. Cohen 85 Milwaukee’s Voucher Verdict by Erin Richards 92 Portable Benefits for an Insecure Workforce by Nick Hanauer and David Rolf 97 Unions in the Precarious Economy by Katherine V.W. Stone

culture 101 Class Act by Alessandro Portelli 104 The Banks are Even Worse by Rena Steinzor 107 The Neighborhood Activist as Prophet by Catherine Tumber 109 Hidden in the Algorithms by Arthur Goldhammer Cover art by John Ritter; photo by Richard Drew / AP Images

1

from the Editors

L

ike most journalists, we did not believe that a majority of Americans would elect Donald Trump president. (And, in fact, a majority did not.) As we planned this issue, we expected a Clinton presidency. On November 9, as others were working their way through the stages of grief, we quickly passed through disbelief and rage—and found our way to assigning. We tore up a lot of what we expected to publish and persuaded a dozen eminent writers to weigh in on the dynamics and perils of a Trump presidency and the possibilities for resistance.

As Trump takes office, there are many things to be alarmed about, not the least of which are the threats to democracy and the risks of war. On the latter subject, Jeremi Suri takes us on a tour of the horizon and assesses the four theaters where Trump’s bluster and miscalculations may lead to armed conflict. Suri, a rising star at the LBJ School of Public Affairs at the University of Texas, introduces a useful term, belligerent deterrence, to describe the misguided idea that if we are tough and intimidating, our adversaries will cower, while our allies pay Suri more for defense and even fight on our behalf. Trump is counting on belligerent deterrence even as he has sent uncertain signals about his willingness to defend eastern European and east Asian allies. When others call his bluff or try to take advantage of his mixed signals, he may well find himself pressured, as Suri writes, “to pursue unwanted wars to preserve the very image of toughness that will get him into trouble in the first place.”

In a companion article, Will Hutton offers a European perspective on the risks of Trump destroying an imperfect but still vital U.S.-led global system based on the rule of law. For Hutton all of its flaws, the U.N. has made the world a less violent place.

The Atlantic alliance has created a security umbrella that has allowed the European Union to develop. The trading system is not well balanced—it serves some interests and nations more than others—but it needs to be reformed, not demolished. Hutton, author of six books, is former editor of The Observer and principal of Hertford College, Oxford.

Neofascism is on the rise on both sides of the Atlantic. John Shattuck has had a unique perch and sensibility to study and resist this trend. He has just returned to the United States Shattuck after serving as founding rector of the Central European University in Budapest, one of the few remaining oases of tolerance and free inquiry in that besieged capital, thanks in part to Shattuck’s own work. His remarkable career as defender of liberty took him from Washington director of the ACLU, to assistant secretary of state for democracy, human rights, and labor, and then U.S. ambassador in Prague under President Clinton. He now teaches diplomacy at the Fletcher School at Tufts. In this issue, Shattuck compares the drift toward fascism in Europe and the United States, and explains the greater resilience of the U.S. Most of this issue deals with the menace of Donald Trump. But looking beyond it—and to the need for continued thought about our underlying economic maladies—we also include two ingenious articles on new strategies to improve the lives of working people, by Katherine V.W. Stone , and by David Rolf and Nick Hanauer .

2 WWW.Prospect.org Winter 2017

co-editors Robert Kuttner and Paul Starr co-founder Robert B. Reich Executive editor Harold Meyerson Senior Editor Eliza Newlin Carney Deputy Editor Gabrielle Gurley art director Mary Parsons managing editor Amanda Teuscher associate Editor Sam Ross-Brown Writing Fellows Rachel M. Cohen, Justin Miller, Shaun Ossei-owusu proofreader susanna Beiser editorial interns Manuel Madrid, Sadhana Singh Digital Engagement intern Bushra Sultana contributing editors Marcia Angell, Gabriel Arana, Jamelle Bouie, Alan Brinkley, Jonathan Cohn, Ann Crittenden, Garrett Epps, Jeff Faux, Michelle Goldberg, Gershom Gorenberg, E.J. Graff, Bob Herbert, Arlie Hochschild, Christopher Jencks, Randall Kennedy, Bob Moser, Karen Paget, Sarah Posner, Jedediah Purdy, Robert D. Putnam, Richard Rothstein, Adele M. Stan, Deborah A. Stone, Michael Tomasky, Paul Waldman, William Julius Wilson, Matthew Yglesias Publisher Amy Marshall Lambrecht Director of Business Operations Ed Connors Development Manager Justin Spees Publishing assistant Stephen Whiteside board of directors Michael Stern (Chair), Sarah Fitzrandolph Brown, Lindsey Franklin, Jacob Hacker, Stephen Heintz, Robert Kuttner, Mario Lugay, Ronald B. Mincy, Miles Rapoport, Janet Shenk, Adele Simmons, William Spriggs, Paul Starr Fulfillment Palm Coast Data subscription customer service 1-888-MUST-READ (1-888-687-8732) subscription rates $19.95 (U.S.), $29.95 (Canada), and $34.95 (other International) reprints permissions@prospect.org

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Prospects

The Audacity of Hope

by Robert Kuttner

I

t is hard to contemplate the new administration without experiencing alarm bordering on despair: Alarm about the risks of war, the fate of constitutional democracy, the devastation of a century of social progress. Trump’s populism was a total fraud. Every single Trump appointment has come from the pool of far-right conservatives, crackpots, and billionaire kleptocrats. More alarming still is the man himself—his vanity, impulsivity, and willful ignorance, combined with an intuitive genius as a demagogue. A petulant fifth-grader with nuclear weapons will now control the awesome power of the U.S. government.

One has to nourish the hope that Trump can yet be contained.

Above all, that will take passionate and strategic engagement, not just to resist but to win, to discredit him and get him out of office while this is still a democracy. We can feel sick at heart—we would be fools not to—but despair is not an option.

We need to insist that the era we are entering is not normal, not to be normalized. Just about everything in our daily routines conspires against that imperative. Ordinary life goes on. Nothing has changed, but everything has changed. It has the menacing, surreal feel of the 1930s. We are caught somewhere between the weary fatalism of T.S. Eliot’s hollow men and W.H. Auden’s haunting poem “September 1, 1939,” the day World War II began:

I sit in one of the dives On Fifty-second Street Uncertain and afraid As the clever hopes expire Of a low dishonest decade: … All I have is a voice To undo the folded lie ….

I. How Did This Happen?

The Sunday before the election, a dear friend was rushed into emergency surgery. She survived and fully recovered, but it was a very close call. On the following Thursday, she was aroused from a medically induced coma. Like Rip van Winkle, she awoke to a revolution.

Among her first words were, “Did we just have a coup d’état?”

Yes, my dear, we did. The coup had three ingredients: the flipping of an American election by Vladimir Putin; the suppression of hundreds of thousands of wouldbe voters; and the intervention of FBI Director James Comey to discredit an active presidential candidate, not once but twice. We have a true constitutional crisis, both in the character of the man who was elected and the fraudulent election. The new president has no legitimacy, but there is no process to dislodge him.

Suppose the situation had been reversed? Suppose Hillary Clinton had narrowly won the Electoral College while Donald Trump had won the popular vote by three million? What would Trump have said about a stolen election?

Would he have urged his supporters to take to the streets? Would Congress have immediately

moved to schedule more hearings on Clinton’s emails, and greeted her inauguration with a bill of impeachment? Paradoxically, there is the appearance of less of a legitimacy crisis with Trump having won rather than having lost.

History is a convergence of deep forces and random events, lucky or unlucky. The ascension of Donald Trump needs to be understood as both. If you limit your analysis to the election itself, you

and as a conventional presidential contender. Both roles served his purposes. Once a Trump story became the outrage of the week, it could be discarded as yesterday’s news. Revelations that would have sunk an ordinary candidate were dispatched relatively early, never to be heard again. Did Trump University swindle thousands of students? Did Trump cheat his contractors? Grope women?

Call Mexicans rapists? Propose a

Trump’s win was a perfect storm—and the culmination of long-term trends. might reassure yourself that 2016 was a fluke—a perfect storm of bad breaks: email hell; meddling by both Russian and U.S. police agencies; Trump as a stunningly talented demagogue; a blemished establishment figure as Democratic nominee, allowing a bizarre billionaire to pose as faux-populist avenger. But it was also the culmination of longer-term trends that weakened democracy and destroyed the New Deal social contract.

For Trump to win, the media had to play into his hands. The press did not know what to do with a candidate who dwelled in his own parallel factual universe.

The quest for balance gave equal play to Clinton’s relatively minor sins and Trump’s grotesqueries.

The cable channels covered Trump both as an amusing freak

religious test for immigrants and refugees? Mock Muslim Gold Star parents? Did Trump really say that maybe the “Second Amendment people” could take care of Hillary? Yeah, yeah, we know all that. Old story.

What neither the media nor the Clinton campaign quite grasped was that disaffection ran so deep in much of America that the more outrageous Trump was, the more his supporters loved it. Was his language coarse? Anyone who watches TV or goes to the movies has heard worse. He mowed down the Republican field by breaking all the rules; well, maybe America needs that sort of strongman. He insulted the entire establishment, just as millions of ordinary people felt insulted by elites who talked down to them, and they loved that Trump was a

Winter 2017 The American Prospect 5

Prospects

bully because they could believe he was bullying on their behalf.

And once voters believed that, they were already in Trump’s postfact world. Strategic framing theory has demonstrated through brain experiments that once you have accepted the framing of a proposition, evidence doesn’t matter.

Did Trump stiff the hard-working contractors on his hotel projects?

Maybe they did a lousy job. Did he brag about grabbing women “by the pussy”? That’s just guy talk.

Six bankruptcies? Smart businessman—maybe he can fix the national debt. And so on. Trump took the art of cognitive dissonance to a whole new level. He altered reality so regularly that trying to challenge his views was like punching a vast fog of cotton candy.

One statistic is worth pondering long and hard. Hillary lost a majority of white women. How could that possibly be? Are most American women still victims of false consciousness? Did their husbands browbeat them into supporting Trump? I don’t think so. Clinton’s identification with a political and financial elite that Middle America came to detest proved more important than her gender breakthrough. The Clinton campaign compounded the problem by giving too much emphasis to the presumed rising electorate of people who identify by oppressed group, and not enough to a broader electorate losing income and status and feeling little stake in American democracy.

But that story has roots that date back at least three decades.

Since the 1970s, the post-­Roosevelt social contract that once served the vast majority of Americans has been under siege. In their embrace of one-way globalization, both parties declined to insist on a trading system of true reciprocity. American manufacturing was sacrificed to the mercantilism of other nations that were valued as Cold War allies. American finance became the dominant influence, economically and politically.

As AFL-CIO chief economist

6 WWW.Prospect.org Winter 2017

William Spriggs points out, the argument about why Democrats lost the white working class misses the point. The working class is substantially nonwhite. In the 2016 election, Democrats underperformed among the entire working class—white, black, Hispanic, Asian—relative to the Obama vote and to the vote Democrats should have gained among the non-rich.

The debate about whether Trump voters in the heartland were blue-collar workers or the fearful middle class also misses the point. When factory towns become ghost towns, the entire community goes down and the entire community feels betrayed.

The proposition that the Democratic Party is the party of regular, working Americans is no longer credible to much of America.

The sense of a collapsing social contract went hand in hand with the erosion of American democracy, both in a civics-book sense and in a political economy sense.

In a market economy, democracy is the only counterweight the people have to keep elites from making off with too much of the pie. Over the past several decades, money has crowded out real grassroots politics, causing politicians to spend more time cultivating fat cats than meeting with constituents. Mass membership organizations that were once robust have turned into letterhead groups, run by professional staff, without the sort of democratically run chapter organizations that were common in our grandparents’ day. The AARP is an insurance marketing operation disguised as an advocacy group for seniors. It has no local chapters.

The labor movement, once the epitome of a democratically run mass organization by and for working people, has been decimated.

According to research by the political scientist Kay Schlozman and colleagues, there is almost a perfect correlation between intensity of civil and political participation and level of income.

That was not always the case, and this participatory tilt reinforces

the influence of affluence, in the phrase of political scientist Martin Gilens, at the expense of regular people. No wonder government, the Democratic Party, and democracy itself all lost legitimacy, opening the door to a Trump.

In short, the perfect storm of 2016 had been brewing for a third of a century.

II. Is Donald Trump an American Fascist?

Fascism, classically, includes a charismatic strongman who speaks directly to the mystical People, over the heads of the squabbling politicians who ruined the Nation. Or as Donald Trump put it at the Republican National Convention, “I am your voice. … I alone can fix it.” Check.

Fascism scapegoats some demonized other, or sets of others. Check.

Fascism can begin as illiberal democracy and mutate into fullblown tyranny, Mussolini-style.

Or fascism can preserve the forms but eviscerate the realities of democracy, à la Putin. Check.

Fascism attracts unstable personalities, both the maximum leader himself and his more extreme followers. Check.

Fascists fetishize the military.

Check.

Fascists are superb at getting followers to believe what Adolf Hitler was the first to call the “big lie.” Repeat it often enough, people believe it. Whether it is true ceases to matter. Truth becomes subjective. Check.

Fascism papers over contradictions. Hitler, a short, swarthy Austrian, exalted the blond, blue-eyed German ideal. Silvio Berlusconi, a notoriously corrupt billionaire, mixed business interests with the business of government. Yet he was lionized by ordinary Italians fed up with the state’s corruption. Believers are willfully blind. Check.

Fascists use mobs or the threat of mobs to intimidate or physically assault opponents and silence critics. Hitler had his Brownshirts private militia of stormtroopers before he became chancellor. Then

it became part of the state. The internet adds a new wrinkle. Trump impulsively uses tweets to incite cyber-mobs. When Trump personally attacked Chuck Jones, the president of United Steelworkers Local 1999, Jones got threatening phone calls. Journalists who have been attacked for criticizing Trump have been subjected to vile personal threats from Trump’s thugs. And all of this before he had state power.

America is an open society (or it has been). If Trump wants to sic mobs on us, either digitally or live, we are sitting ducks. Suddenly, any critic is in the same position as blacks early in the civil-rights era.

A lynch mob could show up at your door, egged on by the local sheriff.

Only the sheriff is now president of the United States. Check.

Fascists are not just charismatic but entertaining. Juan Domingo Perón and his wife, Eva, put on a terrific show. Likewise Benito Mussolini. And of course Hitler.

They were so compelling to their followers that the contradictions were effectively invisible. Check.

One such contradiction is fascism’s habit of both bashing business and climbing into bed with business. Though fascists often condemn an international bankers’ conspiracy, fascists work with corporate elites. And business, either naïvely or cynically, often hopes to use fascists—to restore order, to create a favorable business climate, to help domestic business against imports, and to repress free labor unions. German industry and finance supported Hitler and thrived under Hitler. Much of Italy’s corporatist state, with heavy state financing and business-­ government interlocks, was developed under Mussolini. Check.

Despite a lot of blather about democracy and capitalism logically reinforcing each other because of common norms of transparency and rule of law, when push comes to shove capitalists are a weak firebreak against fascism.

(Tom Friedman, take note.) As the financial collapse showed, rules are made to be gamed;

Prospects

transparency is for suckers.

We’ve known for a century that capitalists get along fine with dictators in third-world settings—such leaders operate a better business climate than messy democracies. Likewise at home.

Check—and maybe checkmate.

Fascism also steals the left’s clothes. Fascists sponsor publicworks projects and expand social benefits. “Nazi” was an abbreviation for National Socialist German Workers’ Party. Hitler ran a prodigious welfare state, as well as extensive public improvements. Here, however, Trump may botch the necessary tightrope act, because the bread is turning out to be far more meager than the circus. It’s not clear how long psychic income will substitute for real income.

There are two other key respects in which Trump is not a classic fascist. He did not come to office as candidate of a new out-party.

His hostile takeover of the Republican Party will produce complications. Moreover, fascists usually take power with a clear agenda.

Other than his own vanity, Trump doesn’t have a coherent agenda beyond vague slogans. Incoming Chief of Staff Reince Priebus and Vice President–elect Mike Pence are staffing Trump’s cabinet with conventional billionaire conservatives. But that’s not exactly the Tea Party’s cup of tea, nor is the bizarre alliance with Putin.

An astute observation is ascribed to Mark Twain: It is easier to fool people than to convince them they’ve been fooled. True enough, but the contradictions are piling up. Even hardcore Trump voters are starting to experience buyer’s remorse.

III. Undoing the Folded Lie

The first line of defense, surprisingly, may be other Republicans.

As the CIA-Putin episode suggests, we are in a fateful race between Republican opportunism and the deeper concern of at least some Republicans for the republic; between Trump’s assumption that he was elected dictator and

collapsing approval ratings—that may yet give pause to some of his allies—as well as the dawning realization that Trump is even crazier than they thought. The Republican view of Trump may be coming full circle, from contempt to ingratiation and back to contempt.

Several leading Republican senators have drawn the line at Trump’s rejection of the CIA and his footsie with Putin. And while Republicans may want to cut public spending, the plans of designated Health and Human Services Secretary Tom Price of Georgia to make drastic cuts not just in welfare but in Social Security and Medicare will not sit well either with Trump voters or with several Republican senators. And some, such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, may not want to turn the EPA over to a leading climate denier.

Trump’s designs on Obamacare spell big losses for hospitals, which are in every congressional district.

threaten the latest asset bubble in real estate and stocks. We could even see another financial crisis.

This is a time to defend core democratic institutions, to amplify all of the contradictions between who Trump pretends to be and who he is. The Democrats need to force Republican legislators to take as many awkward, coalition-splitting votes as possible. They need to put forward affirmative policies that are far more attractive to workaday voters than Trump’s. They need to take some actions of conscience that could also be good politics, such as fervently defending the Dreamers. For the long term, they need to defend and expand a free society, beginning with Obama’s reported efforts on gerrymandering, which could be expanded to a general defense of democracy.

Obama could play a far larger role as leader of the opposition. He is a counter–role model to Trump.

But one should not minimize the perils. Trump will wield a mas-

Even so, Trump may be too impaired to function as a competent leader. Mario Cuomo famously observed that you campaign in poetry but govern in prose. By analogy, Trump may campaign in an alternative, postfact universe, but he will govern in a world constrained by reality.

Missteps and plummeting public support will give his Republican allies second thoughts.

The words attributed to martyr Joe Hill, “Don’t mourn, organize,” were never more urgent. Obama’s audacious, maybe naïve, hope of bridging divides was crushed by Republican cynicism. The postTrump consensus must be both tough and progressive, for nothing else will bring back the support of working Americans who felt deserted by the presidential Democratic Party.

The more fundamental challenge is to defend democracy itself. Trump can restrict voting rights, but he is unlikely to can-

What will it take for Trump voters to have buyer’s remorse? The bread is turning out to be far more meager than the circus.

His version of economic nationalism will wreak havoc with supply chains without doing anything real for American workers. It will backfire if he keeps attacking Boeing, one of America’s few remaining export champions. Tragically, we can’t rely on big business to defend democracy, but we can expect business to fiercely defend its own interests.

In the short run, Trump’s combination of tax cuts and deregulation may produce an economic boom.

But a majority of Federal Reserve governors have been spoiling for an excuse to raise interest rates. The widened deficit will give them one.

Higher rates, in turn, will slow the economy, increase the value of the dollar, and thus widen the trade deficit. Tighter money will also

sive amount of executive power.

This is a man with a short fuse and a long enemies list. As I wrote in a piece last summer that I assumed was merely a passing nightmare, titled “Donald Trump’s Constitution,” he can use the power of the presidency to conduct vast surveillance, threaten the commercial interests of the free press, selectively prosecute, and further weaken the labor movement while his allies in Congress change the ground rules of federalism to undermine progressive policies of blue states and cities. Trump will float above cadres of conservative professionals with detailed playbooks. They will try to back-load the impact of unpopular policies such as deep cuts in Social Security and Medicare.

cel the elections of 2018 or 2020.

With a sour electorate still in an anti-incumbent mood, the incumbent will be Trump. He can’t prevail by promising that things will be great. He will have a record to defend, an all-Republican record.

An abbreviated boom could well fizzle by 2018 or 2020. But with the Justice Department as the ministry of voter suppression, progressives can’t prevail by winning by a point or two. It will take a steal-proof margin—a blowout win of ten to fifteen points.

My friend, who narrowly survived urgent surgery, recovered.

It is asking a lot to hope that American democracy will make a full recovery. Here at the Prospect, all we have is a voice, to undo the folded lie.

Winter 2017 The American Prospect 7

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notebook

The Case for Resistance There is no common ground to be had with the Trump administration.

by R a n d a l l Ken n edy

m a r y a lta f f e r / a p i m a g e s

D

onald J. Trump will be the next president of the United States. That is sobering because he is glaringly unsuited for any significant public office, much less the most important in our country and indeed the world.

Nothing about his pre-candidacy record recommends him. To the contrary, it is so lacking in relevant achievement, so marred by embarrassment, that many onlookers thought that his run for the presidency was nothing more

than a publicity stunt. Then his campaign itself was so repulsive, so saturated with bigotries of various sorts, so ostentatiously crass, so glaringly demagogic, that it prompted many leading figures in his own party to repudiate him.

The conservative New Hampshire Union Leader refused to endorse Trump, remarking, aptly, that he is “a liar, a bully, a buffoon.”

The Dallas Morning News, which had supported every Republican nominee since 1940, demurred on

Trump, observing among other things that “[h]e plays on fear— exploiting base instincts of xenophobia, racism, and misogyny—to bring out the worst in all of us, rather than the best.” The Cincinnati Enquirer, which had backed every Republican nominee for almost a century, eschewed Trump, condemning him as a “clear and present danger to our country.”

What is to be done going forward in the aftermath of the electoral catastrophe?

One thing to be done is to refrain from giving in either to the blandishments of despair or the exhortations to “get over it,” to accept Donald Trump as “our” president, to be a good sport, to “heal,” to “give Trump a chance.” Some disappointed onlookers, aghast at the election’s outcome, are nonetheless trying to retain routines of cordiality and deference that normally attend cross-party changes of administration. Hillary Clinton did this in her concession speech and so, too, did President Barack Obama when he welcomed the presidentelect to the White House just days after having told voters that Trump was “unfit” to be commander in chief. Now, in the aftermath of Trump’s victory, Obama maintained that “we are now all rooting for his success in uniting and leading the country.” Even Senator Bernie Sanders, speaking the day after the election, declared, “To the degree that Mr. Trump is serious about pursuing policies that improve the lives of working families in this country, I and other progressives are prepared to work with him.”

As the incumbent president, Obama occupies a position that imposes upon him pressures unlike those felt by anyone else.

Perhaps he believes that his office requires him to meet certain minimum standards of protocol that attend the peaceful transfer of executive power in America.

That belief, however, does not require him to be a cheerleader for Trump. A proper sense of decorum does not entail “rooting” for Trump’s success—an eventuality which, given the president-elect’s baleful goals, would constitute a massive defeat for decent values along many dimensions, including attentiveness to the environment, humane treatment of undocumented immigrants, fair assessment of women, and respectfulness to religious freedom and equality.

Winter 2017 The American Prospect 9

notebook

In the gloom of Trump’s disastrous victory, there have been a number of commentators whose voices have been clear and inspirational in calling for active, realistic, and unstinting opposition to the bad decisions, appointments, and policies that are headed our way. I think here of Leon Wieseltier and Andrew Sullivan, Paul Krugman and David Remnick. The most outstanding of the oppositionist commentators, however, has been Charles Blow. In the pages of The New York Times, he has repeatedly penned memorable columns that are full of wise wrath.

In “America Elects a Bigot,” published two days after the election, Blow etches the position from which he has pounded Trump ever since: “I respect the presidency; I do not respect this president-elect. I cannot. Count me among the resistance.” Writing the day after Trump travelled to The New York Times to talk with its top managers and editors, Blow wrote an extraordinary column titled “No, Trump, We Can’t Just Get Along.” I doubt that the Times’ editorial page has ever run a piece that is more uninhibited in its disparagement of a president-elect.

Alluding to the session at which Trump met with the Times’ top officials, Blow noted that he skipped the meeting.

“The very idea of sitting across the table from a demagogue who preyed on racial, ethnic and religious hostilities and treating him with decorum and social grace fills me with disgust.”

Responding to those who have applauded Trump for saying that he would desist from seeking the prosecution of Hillary Clinton or authorizing torture, Blow declared that the president-in-waiting ought not receive a pat on the back for retracting regrettable statements he ought never to have made in the first place. Addressing others who maintain that persuasiveness is undermined by statements that some observers will decry as alienating or insulting, Blow maintained: “I’m not trying to convince anyone of anything, but rather to speak up for truth and honor and inclusion.” Anticipating the charge that he is closing himself off to evidence that perhaps Trump will grow to fit the frame of his new, gigantic responsibility, Blow

10 WWW.Prospect.org Winter 2017

wrote: “It’s not that I don’t believe that people can change and grow.

They can. But real growth comes from the accepting of responsibility and repenting of culpability. Expedient reversal isn’t growth; it’s gross.”

To Blow, it is clear that Trump’s reversals and softenings—his claim, for instance, that The New York Times is “a great, great American jewel”—are merely strategic feints, stratagems intended to confuse and disarm. Dismissing Trump as a “charlatan,” decrying his ascendancy as “obscene,” Blow promises to meet the incoming president and his agenda “with resistance at every turn.”

Depending on circumstances, “resis-

tance” will entail different strategies. For progressive politicians in Congress it will mean using all of the leverage at their disposal to scrutinize Trump’s nominees, educate the public about Trump’s policies, and attempt to delay or stop bad appointments and legislation. The power of the Democratic opposition to Trump is at a disastrously low ebb inasmuch as the Republicans control both the House and the Senate.

But there are opportunities available that should be maximized. The Democratic congressional leadership has vowed that confirmation hearings will be used to carefully scrutinize Trump’s nominees, insisting: No disclosure of nominees’ tax returns, no confirmation vote. Let’s see Trump try to rally his base over that. In a closely divided Senate, pressure can and should be brought to bear on the handful of persuadable Republicans— Susan Collins, Lisa Murkowski, and Jeff Flake come to mind—who might join Democrats in blocking the worst Trump has to offer.

Democrats can also serve as the champions of regular people, as Trump’s retrograde policies start to harm the voters who were duped into thinking he would serve their interests. Pain will ensue as Trump tries to roll back Obamacare, voucherize Medicare, and minimize Medicaid.

Democrats can spotlight corporate harm to ordinary people, as Senator Bill Nelson recently did in his demand that the Federal Trade Commission

Democrats can champion regular people, as Trump’s retrograde policies start to harm the voters who were duped into thinking he would serve their interests.

investigate extra bills for emergency room visits supposedly covered by insurance plans.

One Republican strategy already emerging is to try to get Democrats to share responsibility for horrible Republican policies. It has been reported that Republicans will try to gradually undermine Obamacare and then, as their end game, offer to compromise with Democrats in a “bipartisan” bill to make the result slightly less awful. Democrats ought not take this bait. Nothing Trump does should have any Democratic fingerprints on it. Even Republican initiatives that bear some superficial resemblance to ones that progressive Democrats back, such as renegotiation of NAFTA , should not be praised, since they are part of a larger package that is probillionaire and anti-worker.

Democrats can’t pass legislation, but they can act to highlight and widen differences in the Republican camp—between conventional freetrade business elites and Trump-style protectionists; between ordinary conservatives and pure bigots; between isolationists and internationalists; between supply-siders and deficit hawks; and above all between Trump’s actions and what he promised his voters. These contradictions will widen over time.

There will also be opportunities for pure acts of resistance, as in the sanctuary city movement. The refusal of city governments to cooperate with roundups of immigrants is now far from a fringe phenomenon; it includes officials, reinforced by popular backing, in San Francisco, Los Angeles, Chicago, Philadelphia, and New York.

In the states, Republicans occupy 33 governorships and control both chambers in 32 states, 17 with vetoproof majorities. Yet states that have become centers of progressive policies can also serve as fortresses to defend American democracy. In a joint statement, for example, California Senate President Pro Tempore Kevin de León and California Assembly Speaker Anthony Rendon declared that they and their colleagues would “lead the resistance to any effort that would shred our social fabric or our Constitution.”

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Regular folks can engage in opposition by petitioning their political representatives; by persuading disconnected friends and family members to become politically engaged; by subscribing to progressive media; by supporting organizations attuned to the protection of our civil rights and civil liberties (such as the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, and NARAL Pro-Choice America); by supporting public radio and television as Trump uses commercial pressures to squeeze the mainstream press; by volunteering to assist Muslim and other victims of scapegoating who may in the future find themselves subjected to governmental or vigilante harassment; by engaging in disciplined marches, targeted boycotts, and other sorts of mass demonstrations; and by mobilizing now for the next round of local and national elections.

Essential to the sustenance of righteous opposition is maintaining an appropriate spiritual and psychological stance toward the Trump calamity. It will be difficult to keep fresh a keen sense of outrage, indignation, anger, disappointment, and, yes, contempt in the coming weeks, months, and years. Inertia dulls idealism and normalizes the outrageous. Moreover, even hardened ideologues find it difficult to resist the allure of presidential power, the pull of presidential pageantry, and the habit of wishing well any new occupant of the White House.

The routine genuflection to presidential authority—the omnipresent military salutes, the repeated refrains of “Hail to the Chief,” the ubiquitous sycophancy—is pervasive. But it is incumbent upon those who are rightly alarmed by the Trump ascendancy to resist familiar conventions. This is a peculiarly trying moment that will hopefully prompt an unprecedented assertion of resoluteness in defense of progressive values.

Randall Kennedy is a contributing editor to the Prospect and professor at Harvard Law School. His several books include The Persistence of the Color Line: Racial Politics and the Obama Presidency.

Mapping the White Working Class A deep dive into the beliefs and sentiments of the moderates among them

by Guy Moly n eux

I

n the wake of the 2016 election, a long-standing debate within progressive circles has been reignited: Whatever shall we do with the white working class? The question arises because for the past two decades, white working-class voters have marched steadily to the right.

What was a competitive constituency for Democrats in the 1990s—and had once been its foundation—has emerged as a strong base of support for the Republican Party.

Progressives have had a sharply polarized response. On one side are those who maintain that we must redouble our efforts to win white working-class support. Even though its share of the electorate is in decline, the white working class remains too large for any movement seeking majority support to ignore. These progressives counsel a healthy dose of economic populism to win back these voters’ allegiances.

On the other side are those resigned to losing them. Whether motivated by disgust with these voters’ allegedly retrograde social views, or just worldweary pragmatism in the face of an apparently unstoppable trend, this camp argues that progressives should give up on winning back white noncollege-educated voters and make other plans. They look instead to the “rising American electorate” of millennials, people of color, and highly educated whites to produce a progressive majority.

At first blush, the 2016 election seems to provide clear vindication for the don’t-give-up camp, as the white working class took another decisive step—more of a leap, really—to the right. Supporting Trump by a massive 39-point margin nationally, they clearly played a decisive role in delivering Pennsylvania, Michigan, and Wisconsin to Donald Trump. In electoral terms, the urgency of reversing at least some of this erosion is clear. However, the scurrilous nature of Trump’s

campaign, and its obvious appeals to racial resentment and xenophobia, only hardened suspicions by many progressives that seeking support in the white working class is implausible, unprincipled, or both. So the debate continues, with lines drawn perhaps even more sharply. Wooing the white working class is mathematically necessary, but also hopelessly immoral—or just plain hopeless.

To escape from this box, progressives must recognize that the white working class is not a monolith, but contains a wide diversity of political views. About half of non-college-educated whites identify as conservatives, and nearly all of them have become reliable Republican voters. On the other end of the spectrum is a small group of liberals, who regularly vote for Democrats. Consequently, most working-class whites are either completely unavailable to progressive candidates or (less commonly) already in the progressive camp.

In between is a critically important subset of potentially persuadable voters, the white working-class moderates, or “WWCMs.” About 35 percent of working-class whites have moderate or “middle of the road” political views, which means WWCMs represent about 15 percent of the overall electorate, or approximately 23 million registered voters. While Trump won the working class conservatives by an overwhelming 85 points (Clinton got a mere 6 percent), he had a much smaller 26-point margin among the WWCMs. That margin is double Mitt Romney’s 13-point edge in 2012, and this swing had a decisive impact. If Clinton had performed as well as Obama with those moderates, it would have doubled her national popular vote margin from 2 percent to 4 percent. Even if she had just lost ground among these voters at the same rate she did among white working-class conservatives, she would almost certainly have won Michigan,

Winter 2017 The American Prospect 11

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Wisconsin, and Pennsylvania.

Several months before the election, I conducted a deep study of these moderate working-class white voters on behalf of Americans for a Fair Deal. We convened eight focus groups with these voters in Montgomery, Alabama; Nashville, Tennessee; Appleton, Wisconsin; and Pittsburgh, Pennsylvania. Rather than focusing on the presidential candidates, we held broader discussions about the nation and its political system, and explored both the barriers and opportunities that progressives face in working-class communities. Sadly, I cannot report that these sessions “solved” the puzzle of the white working class. But the research findings confirm the real possibility that progressives could make inroads with these voters in the future, and take an important first step forward in identifying strategies for reaching them.

Most progressive explorations of the white working class’s rightward shift frame it as a baffling mystery: How can these non-wealthy Americans vote against their obvious (to us) economic self-interest? The usual explanation is that conservatives’ mastery of “hot button” culture war issues and racial anxiety serve to distract and divert the white workingclass voters from recognizing their “true” interests. The obvious solution, then, is to somehow increase the salience of economic issues, perhaps by offering a sharper contrast to conservatives’ economic agenda.

However, our focus-group conversations suggest that it would be a mistake to project this familiar ideological template onto these moderates. In fact, they are considerably less culturally conservative than the stereotype suggests. White working-class moderates do perceive a decline of moral values in our nation, but the values these working people fear losing include progressive values as well as conservative ones.

Many are disturbed by what they perceive as a rise in selfishness and lack of concern for others, calling for more “compassion” and more support for those who need it, especially veterans and the disabled. The issues traditionally at the center of the nation’s “culture wars”—abortion, homosexuality,

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Democratic Share of Two-Party Popular Vote 54%

54% 49%

50%

51% 41%

All White Working Class

48%

41%

38%

52%

51%

37% 29%

1992 1996 2000 2004 2008 2012 2016 Source: national exit polls

White Working-Class Presidential Vote ■ trump ■ clinton

■ other

White Working-Class Conservatives White Working-Class Moderates White Working-Class Liberals

60% 21%

Difference (D-R)

91% 6%

+85

34%

+26

69% Source: national exit poll, november 2016

drugs—come up only sporadically, while many express a “live and let live” attitude toward America’s changing social mores.

Survey data confirm that these voters have a very different cultural outlook than conservatives. For example, 67 percent of white non-college conservatives report being very concerned that “many government programs violate my personal moral values,” but just 25 percent of the moderates share this concern.

If the moderates are not as culturally conservative as usually assumed, then why aren’t they already in the progressive camp? It would seem that without that roadblock, their economic self-interest would naturally lead them to the left. But that is not what we see.

The fundamental problem is that white working-class voters do not perceive progressives (or Democrats) to better represent their economic concerns. Polling showed that voters overall divided fairly evenly on whether Donald Trump (46 percent) or Hillary Clinton (42 percent) would do a better job of dealing with the economy, yet Trump enjoyed a 27-point advantage (57 percent to 30 percent) on this question among non-college whites, and an enormous 42-point advantage among non-college white men. This result cannot be explained by Trump’s intermittent economic populism.

--48

In 2015, by 73 percent to 27 percent, white working-class voters said that the federal government, far from helping them, had made it harder for them to achieve their goals, and by a 4-to-1 ratio said that the federal government’s economic impact was negative.

So the presumption that the cultural or religious values of white working-class voters are superseding their economic priorities fundamentally misrepresents the reality. In our focus groups, few moderates articulated any sense that Democrats have an economic agenda or philosophy that would help them, or are animated by concern for people like them.

While they didn’t trust Republicans either, we heard nothing suggesting that Democrats are even seeking to improve economic conditions or economic opportunities for them, or that those outcomes would result if only Democrats could just implement their agenda. Even if white workingclass voters agreed to base their votes entirely on economic concerns, it is not at all clear Democrats would prevail.

To be clear, we saw no evidence that these voters have rejected a progressive economic policy agenda. As confirmed in numerous polls, many elements of that agenda—higher taxes on the wealthy, reining in Wall Street, ensuring paid leave for workers—are popular. But these voters’ somewhat abstract desire for more progressive economic policies is undercut and overwhelmed by their deeply negative view of government, which includes a strong aversion to spending and government intervention in the economy.

While they are economic progressives, in important respects they are also fiscal conservatives.

Given that Democrats are seen as the party of government and Republicans the reverse, the reflexive aversion among working-class moderates to “government spending” has real political consequences. Indeed, our participants’ single greatest worry about the Democrats is that they “favor too much government spending,” eclipsing by far the number who feel that Democrats “don’t respect my values” or that Democratic economic policies “don’t help me.” As some of our focus group participants commented:

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“I think that government should run their government like we have to run our household. We all have to live under a budget.

There’s only so much money to go around.”

“You guys should all be happy Congress is not getting anything done, for the simple fact that it won’t affect you when they pass regulations that cost people money. I mean, when they make laws, it costs somebody money down the road.”

While progressives need to confront the reality that working-class white moderates’ economic outlook is less progressive than usually assumed, there is a silver lining: these anti-government views do not reflect a philosophical embrace of conservative free-market ideas. These voters have no principled objection to government intervening in the economy on behalf of working people; on the contrary, they would welcome it. They simply have no confidence that Democrats (or anyone else) would make this happen in the real world.

At the root of this skepticism is their profound distrust of, and alienation from, the political system. Overwhelmingly, they believe that the nation’s political leaders are not serving the country well, and the notion that politicians of either party might care about their economic situation feels inherently implausible (if not laughable). Their distrust of government makes them susceptible to conservative attacks on progressive proposals that invariably rely on government action. To a disturbing extent, these working-class voters have rejected politics as a meaningful way of improving their communities or nation.

It would be hard to overstate the disconnect WWCMs feel from current politicians, whom they see not only as greedy and self-interested, but also as out of touch with the people they are supposed to represent. The principal political division perceived by these working-class voters is not between Democrats and Republicans, but between politicians and ordinary people.

“They have millions and millions of dollars. They don’t know

that I live off of, like, a very low amount. You know, I live paycheck to paycheck. They don’t give a crap about me. They don’t give a crap about none of you.”

These voters agree that the economic system is “rigged,” as populists like Senators Elizabeth Warren and Bernie Sanders like to say, but with a crucial difference: It is not rigged only to the advantage of those at the top. They complain that the rich and poor both get taken care of today, while those in the middle get left behind. Many report that their families have at times been unable to receive needed help because they “make too much.” Doubtless some of these stories would fall apart upon close inspection, but this perception of an advantaged poor is widespread and powerful. Progressives must find a way to speak to this sense of a forsaken middle and to signal that they do care about providing opportunity and help to those who earn a bit too much to qualify for public assistance.

“Sometimes I feel that there’s too much focus on the very rich and the very poor, where I feel that most Americans fall somewhere more in the middle. And I think the very rich are going to be OK, ultimately, and the poor, I’m okay with helping them. … But, I think just focus on the middle class.”

Progressives often wonder how white working-class people can vote Republican despite believing that the GOP is the party of the rich. The mystery is solved if we understand that “the party of average people” is not the only possible alternative to the party of the rich. They see Democrats as working on behalf of a series of interest groups rather than the public interest. In their view, the allocation of government benefits reflects political calculation, not any moral or economic principles, with both parties lavishing benefits on their respective constituencies. The GOP version (handouts for the wealthy) may be less attractive, but from the white working-class perspective both stories translate into “not for me.”

There can be no doubt that a sense

The stumbling block isn’t cultural values. Few moderates believe the Democrats are even trying to improve their economic conditions.

of racial resentment and grievance lies behind some of these comments, as well as a failure to recognize or acknowledge the reality of continuing racism. At the same time, it was striking what we did not hear said on the topic of race. People did not rail against affirmative action, blame African Americans for crime, or claim that white people faced more discrimination than people of color—all of which were staples of discussions with working-class whites 20 years ago (and likely would be today in sessions held with conservatives). In a survey my firm conducted on the eve of the election, 53 percent of white workingclass conservatives said the nation’s increasing racial and ethnic diversity was a negative change for the nation, but just 36 percent of moderates felt the same way (only slightly higher than white voters overall).

Progressives clearly must not pander to or ignore racism as a strategy for reaching the white working class. Fortunately, they don’t have to. Boosting white non-college moderates’ support for Clinton by just 5 percent or 6 percent would have delivered her the presidency. Democrats can lose the votes of every one of the 36 percent who are uneasy with America’s increasing diversity, and still make the progress required to win elections. Progressives must not make the error of assuming that outreach to white working-class voters implies or requires a diminished commitment to racial justice.

In this context, it’s a mistake to define progressives’ challenge as persuading white working-class voters to ignore or set aside conservative cultural values in favor of pursuing their economic self-interest. Progressives must convince them that government policies really can help them economically and strengthen their communities, and that political engagement is a plausible way to make things better.

That will require both offering a compelling economic vision, and patient, on-the-ground organizing.

Encouragingly, our focus group participants rallied around an openly progressive economic vision offered by a hypothetical candidate (which appears below), much preferring it to a conservative small-government appeal:

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Too many politicians have given in to the power of corporate lobbyists instead of doing what’s best for our nation’s economic future. CEOs and billionaires keep getting tax breaks, while our bridges crumble and our schools fall behind. Our economy is weakened because politicians put their political career first, instead of making investments that benefit all Americans. We must grow our economy, so we can create the jobs our country needs and improve incomes for average people. We should invest in infrastructure, medical research, and new technologies to create thousands of good-paying jobs and strengthen our nation. We should improve education and training, so American workers can compete in the global marketplace.

Despite their distrust of government, these voters will embrace a progressive message that openly calls for expanded public-sector investment. They have a long list of things they believe government should be doing or doing better: improving education, making health care more affordable, supporting veterans, ensuring that seniors enjoy a secure retirement, and so on. Ultimately, the ideal of “small government” has much less appeal to them than a government that actually acts to strengthen the economy and help average people.

The populist criticism of politicians made by our hypothetical candidate—that they have been captured by wealthy interests—resonated with our participants and helped break through their well-earned skepticism. It spoke to their frustration with current political leaders, while suggesting the possibility of having government truly work on behalf of average people—exactly the change they are looking for. To some extent, politicians are even better targets today than the bankers and CEOs that progressives routinely assail. These voters’ anger is much more directed toward the politicians who sell out than the corporations that buy them. They expect special interests to seek political influence. Elected officials, in contrast, are supposed to serve the public. So these voters feel

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more betrayed by the elected officials.

The growth-oriented tone of this vision appealed to our participants and helped to make the message feel less “political.” Progressives cannot win over these voters simply by saying, even implicitly, “We will give handouts to white working-class people, too.”

These voters are proud of their independence, and the last thing they want is anything resembling a “handout.” A successful appeal must clearly signal that progressives care about those in the middle, not just those at the bottom of the economic pyramid, but it must be done in the language of economic revival and expanded opportunity.

Breaking through these voters’ skepticism and restoring their trust in the political system will be challenging, and will take time. In the short term, it likely means that the conversations progressives have with working-class whites will need to start outside the framework of elections and political parties. Community organizations and non-elected community leaders must be the “tip of the spear” as progressives seek to engage white working-class communities.

To build strength in these communities, progressives will also need to identify specific issues that engage their interest and speak to their economic needs. Ideally, these issues and the campaigns promoting them will also help combat the notion that progressives care only about helping the poor while neglecting the needs of average working people.

There are many progressive policy priorities that might lend themselves to such organizing, including tax fairness, job creation though community investment, and affordable higher education. Let me suggest just one issue that usually receives little attention but illustrates the kind of concrete impact on working-class lives we need. The WWCMs we spoke with strongly embraced the idea of expanding programs that help non-collegebound youth get the skills they need to succeed in the workforce. This issue could really have surprising power as an organizing issue. Many workingclass voters (and others) worry that public schools focus exclusively on preparing students for college, while

These voters’ disbelief that government will intervene to help working people doesn’t mean they support laissez-faire economics.

neglecting the equally important task of preparing non-college-bound students for successful transitions into the workforce. They enthusiastically endorse proposals to provide quality vocational education, apprenticeships, and other programs that would expand opportunities for young Americans—including many of their own children and grandchildren— who are unlikely to pursue a four-year degree after high school.

Fundamentally, WWCMs feel that society does not value people who work with their hands. A set of policies aimed at non-college youth would not just meet an important economic need for working-class families, it would also make an important moral statement that these young Americans matter and have contributions to make. It would place progressives more clearly on the side of working families.

“Not everybody is college material, and there’s nothing wrong with that, and that’s what’s wrong with society nowadays. If you don’t have a college degree, we can’t hire you. It shouldn’t be that way.”

Engaging this critical bloc of voters is an enormously challenging project for the progressive movement, and will be the work of years if not decades. Our research did not unearth a magic bullet that will transform white working-class voters into progressives. But we did find clear openings that give progressives a chance for productive dialogue and engagement with the white working class. It is absolutely possible to erode some of the barriers standing between progressives and white working people.

If progressives are willing to engage them in a smart and targeted way, they will make significant gains within white working-class communities in the years ahead.

Guy Molyneux is a partner with Hart Research Associates, where he conducts public opinion research for labor unions and other progressive causes. The research this article is based on was conducted for Americans for a Fair Deal; however, the views expressed here are solely those of the author, not the organizations.

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Republican Governor Pat McCrory by more than 10,000 votes. Democrats also won other races, including attorney general and secretary of state.

Voting rights are under siege in a way that hasn’t been seen in more than a generation. But these coordinated attacks follow a historic pattern: Laws that expanded the franchise during Reconstruction and after the passage of the 1965 Voting Rights Act have typically been followed by state-level repression and federal indifference. “With advancements in voting rights, there is always a swift backlash,” says Leah Aden, senior counsel at the NAACP Legal Defense Fund. With Donald Trump in the White House, Senator Jeff Sessions of Alabama likely as attorney general, and Republican-led legislatures primed to continue voter suppression, the runup to the 2018 midterms promises to be one of the most difficult periods for protecting the franchise in the country’s history.

Voter Suppression Works Too Well The Republicans’ quest for a permanent political majority culminated in mammoth voter suppression in 2016.

The 2018 midterm election promises both to embolden these efforts and energize resistance.

by G a b r i e l l e G u r l e y

jann huizenga / istock by get t y

U

nnerved by progressive voting policies and by the numbers of black, Latino, and young voters streaming into the electorate, Republican state lawmakers across the country have moved to suppress the franchise to maintain GOP political dominance. The strategy is simple: Turn voting into a bureaucratic nightmare by eliminating popular timesavers such as same-day registration and early voting. Require photo identification to vote, using IDs that many people don’t have or cannot pay for.

The harder it is to vote, especially for people juggling some combination of work, classes, and child or elder care, the fewer people will.

It is difficult if not impossible to calculate how voter suppression affected voter turnout or the outcome of the presidential election. What is indisputable is that these roadblocks deterred many people from exercising the franchise, particularly in states like North Carolina with a long history of racial voter suppression. Many of those new election laws were promulgated after the Supreme Court’s 2013 decision in Shelby County v. Holder that invalidated provisions of the Voting Rights Act that required U.S. Justice Department review of election law changes. North Carolina was especially adept in manipulating the building blocks of suppression through redistricting, racial gerrymandering, and unprecedented election law changes.

Fourteen states had new restrictive measures in place for the general election. Wisconsin requires photo ID, a hardship for many: In 2014, a federal district court judge determined that an estimated 300,000 registered voters did not have one. Turnout plummeted in the city of Milwaukee, where most of the state’s African American voters live, with 41,000 fewer people going to the polls than in 2012.

Donald Trump’s margin of victory in Wisconsin was more than 22,000 votes. Over the past five years, Ohio has purged two million voters from the voting rolls. Trump won the Buckeye State by about 447,000 votes.

Despite a federal court order striking down its so-called monster voter-­ suppression law, North Carolina officials devised ways to ensure that there were 27 fewer places to vote on Election Day. Seventeen of the state’s 100 counties also saw cuts to earlyvoting locations and hours, resulting in a drop of nearly 66,000 votes during the early-voting period, an 8.7 percent decrease from 2012, according to Michael McDonald, a University of Florida political science professor.

In 2011, after the 2010 census, state lawmakers began to chip away at voting rights by redrawing state and congressional legislative districts. They also left a long trail, beginning the day after the Shelby County decision, outlining plans for new race-based election restrictions that included eliminating same-day registration, adding a strict voter-ID requirement, eliminating one week from the early-voting period, dispensing with out-of-precinct voting and preregistration for 16- and 17-yearolds—all tools that had benefited minority voters and young people. Nor did the Fourth Circuit Court of Appeals decision in North Carolina NAACP v.

McCrory, which struck down those restrictions, deter state Republican Party leaders from pulling off an end run around the decision by suggesting to certain GOP county election officials to dispense with Sunday voting and reduce the number of early-voting places and Election Day polling places.

In North Carolina, Donald Trump beat Hillary Clinton by about 177,000 votes. Down-ballot state races were much tighter, with Democrat Roy Cooper finally prevailing over

Voter suppression

Blink and you missed it.

is a long-standing tactic. However, victory was not enough for Donald Trump and his allies. They continue to hammer home the fiction that millions of people voted illegally, statements for which there is no evidence, in a country where voter fraud is practically nonexistent.

The threat of Election Day intimidation and protests which largely failed to materialize diverted attention from the more insidious developments that occurred two years before, which actually had more of an impact on turnout—for instance, North Carolina’s “monster” voting law, which culminated in epic court battles and a contentious state election. Recounts demanded by vanquished Republicans like McCrory failed to produce evidence of fraudulent voting. “The whole recount process that we [went] through is proof to me [that] the idea of voter fraud is just a hollow shell to mask some of the work that people

Winter 2017 The American Prospect 15

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want to do to maintain their power or to get power,” says Mary Klenz, copresident of the League of Women Voters of North Carolina.

In states like North Carolina and Texas, which has a very strict voterID law, restrictive measures presage what Americans can expect in the run-up to the 2018 midterms. According to the narrative of voter suppression, additional regulations that make it easier to confirm a person’s identity and citizenship are needed to combat fraud. The tactics used to ferret out alleged fraud almost exclusively affect minority groups, the young, and the elderly. Indeed, fear of the black voter is a persistent theme in the history of voting in the United States. Images of blacks stuffing ballot boxes entertained Americans in D.W. Griffith’s 1915 silent film, The Birth of a Nation, during a period when blacks in the South were more likely to be lynched for even attempting to vote.

Regulations like photo identification are supposedly designed to prevent people from impersonating other voters, despite the fact that practically no one impersonates another person with the intent to vote in the United States.

The misuse of alternatives to in-person voting, such as the fraudulent use of absentee ballots, is also rare. Other tactics, like consolidating polling places, are explained away by noting that these moves save money, despite long lines and other headaches such closures produce in the remaining polling stations.

Meanwhile, Anita Earls, executive director of the Southern Coalition for Social Justice, headquartered in swing state North Carolina, encountered a problem she had not seen before: formal protests initiated by individuals who had done internet research, going on fishing expeditions. They alleged, with no evidence, that other voters had felony convictions. The practice forced attorneys and boards of elections to hear challenges to voters in more than half of the state’s counties. In a brief, filed in late November, before the state board of elections regarding a number of election legal issues, the coalition determined that race was the focus of those 41 voter protests.

Of the voters challenged as ineligible, most could be identified by race

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using an internet voter search tool: 22 were black; 11 were white; and 4 were of an unknown ethnic background.

When county boards of elections investigated, officials often discovered the person named in a protest had been confused with another individual with a similar name. “Almost none of the challenges are being sustained,” says Earls. “Problems happen where people believe they will have an impact,” she adds. “Where the vote is close is where the most suppression goes on.”

Shortly after the election, the national League of Women Voters used Trump’s own “the election is rigged” rhetoric to describe the voter suppression efforts around the country. Lloyd Leonard, the league’s national senior advocacy director, says the organization thought long and hard about its choice of words, and has no regrets. “You don’t steal an election by getting four, five, six, or twenty of your friends to cheat; you do it by having a more massive operation,” he says.

“I leave it to you to do the arithmetic about who is more likely to affect the outcome of the election.”

With the 2018 midterm elections

on the horizon, the next two years will be a crucial test for voting rights. A Republican Congress could weaken voting-rights laws, and the Justice Department could weaken enforcement. With a conservative now expected to fill the vacancy left by the death of Justice Antonin Scalia, the high court will be no defender of the franchise.

Chief Justice John Roberts, who wrote the majority opinion in Shelby County, has demonstrated antipathy to voting rights since his tenure as a special assistant to William French Smith, Ronald Reagan’s first attorney general. A former Department of Justice official told Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, that “John seemed like he always had it in for the Voting Rights Act.” The high court’s Shelby County decision eviscerated the landmark law’s “preclearance” provision, which required nine states and specific counties or townships in six other states to submit election law changes to the

Justice Department for review. The preclearance process gave the federal government a tool to prevent blatantly discriminatory regulations from going into effect. (Now challenges to election laws must be fought as rearguard actions through state and federal courts.) The remaining teeth of the VRA rest on another provision that mandates that voting laws do not discriminate on the basis of race, color, or certain languages. That provision, Section 2, “has not come under the same level of scrutiny and has consistently safeguarded the rights of minority voters,” says Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Several cases are likely to make their way to the high court in the next two years, including North Carolina NAACP v. McCrory, which produced the nowcelebrated Fourth Circuit decision that struck down the state’s “monster” suppression law and found that state lawmakers implemented a variety of racially restrictive election laws “with almost surgical precision,” since “African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise”; Veasey v.

Abbott, the decision by the conservative Fifth Circuit Court of Appeals, which struck down the Texas photo-ID law; and Frank v. Walker as well as One Wisconsin Institute, Inc., et al. v. Mark Thomsen, et al., both cases that contest Wisconsin’s photo-ID laws.

These victories demonstrate that voting rights can sometimes get a fairer hearing in lower courts. Even conservative judges in places like the Fifth Circuit have been willing to strike down discriminatory election laws.

But a new conservative majority on the Supreme Court does not augur well.

Prospects to defend voting rights are no better in a Republican Congress. The Voting Rights Advancement Act of 2015, aimed at restoration of federal preclearance, is a dead letter.

Congress may weaken the 2002 Help America Vote Act, which covers election administration, by eliminating the troubled Election Assistance Commission that develops election guidelines and has usually not been staffed at full strength. (Only three out of four commissioners have been seated under

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President Obama.) The 1993 National Voter Registration Act, signed into law by President Bill Clinton, could well be targeted for its mandate that social service agencies that typically serve low-income people should also help them register to vote, even though compliance with the law is haphazard, with some states making very little or no effort to sign people up to vote.

U.S. Representative Marc Veasey, the lead plaintiff in the Texas photoID case and a co-chair of the Congressional Voting Rights Caucus established in 2016 as a response to Shelby County, is also concerned about possible measures that would require people to present proof of citizenship, such as a passport or birth certificate, to register to vote. Those mandates would weaken nonprofit voter registration programs at events like weekend new-voter sign-ups by requiring people to present documents that most people do not carry with them on a daily basis. States like Alabama, Georgia, and Kansas have tried to institute proof-of-citizenship requirements, but a federal appeals court threw out those regulations shortly before the election.

The Texas Democrat says some of his fellow Lone Star State lawmakers once told him that strict voting regulations had less to do with race or ethnicity (or African American legislators like him) and everything to do with party affiliation. “If you make it harder for blacks to vote, choose the candidate of their choice, or to have any kind of say-so in election results, then it’s not about racial discrimination, it’s more [about] how we make it harder for Democrats,” he says they explained to him. “That’s how they’ve justified it and been able to get a good night’s sleep,” Veasey says.

With the avenues for national legislation closed, what transpires in the states in the next several years becomes increasingly more important.

In addition to congressional seats being contested, 38 governor’s races will be held in 2017 and 2018, along with dozens of state and local races.

Yet as crucial as midterm elections are in election lawmaking, they usually elicit indifference from an already apathetic electorate. Only 37 percent

of eligible voters made it to the polls in 2014, the lowest midterm turnout in 70 years. The average voter who sits out a midterm election does not make the connection between a party’s control of the state legislature and the governor’s office, and how those partisan officeholders will have the ability to craft new election laws and carve out state and federal legislative districts after the 2020 census. Yet in 2014, a Center for American Progress/NAACP-LDF/ Southern Elections Foundation report found that the numbers of voters in Alabama, Georgia, North Carolina, Texas, and Virginia that were affected by changes in early-voting and photoID laws far outstripped the margin of victory in those states’ U.S. Senate and gubernatorial races.

The most brazen attacks on voting

rights still come out of the South, and North Carolina is ground zero. But the Tar Heel State has also become a model of effective resistance based on litigation, public protest, and, most significantly, a ballot box backlash.

The North Carolina Republican Party’s dedication to curbing voting rights has produced an onslaught of litigation by groups like the League of Women Voters of North Carolina and the Southern Coalition for Social Justice, which will keep state attorneys busy in state and federal courts for some years to come. Shortly after the presidential election, a federal district struck down gerrymandered North Carolina state Senate and House legislative districts that forced African American and Hispanic voters into a few districts, and ordered the state to hold new elections. State officials have until mid-March to redraw the districts in preparation for a new primary and a November election. Republican state lawmakers plan to appeal that decision to the Supreme Court.

The voter-suppression law catapulted the North Carolina NAACP to the forefront of public protest. The Moral Mondays movement grew out of opposition to the voting curbs, and spawned regular protests that grew in number and size to rival the bloody voting-rights marches of the 1960s. “[Republican state lawmakers] have shown since Shelby County that they

Republicans’ determination to dismantle voting rights that were once settled law will necessitate a response worthy of a new civil-rights movement.

will do almost anything, tell almost any lie, go to almost any extent to suppress the vote,” Reverend William Barber, the leader of the North Carolina NAACP and of the Moral Mondays protests, said in an early December conference call with reporters.

With many North Carolinians already mad as hell about voting rights, Governor McCrory and Republican state legislators finally overreached, passing HB2, a bill that mandated that transgender people use the bathroom corresponding to their assigned sex at birth. They could not contain the backlash, which prompted an economic boycott that has so far cost the state tens of millions plus the loss of marquee events like NCAA and ACC championship games and the NBA All-Star Game.

The divisiveness of serving as a laboratory for conservative Republican dogma contributed to the Democrats’ November successes.

Republicans’ determination to dismantle voting rights that were once presumed settled will necessitate a response worthy of a new civil-rights movement. Voter-suppression efforts compounded problems for Democrats, who want to counteract the powerful appeal of the far-right message espoused by Trump, but the presidential election pointed to alarming signs that key constituencies like African Americans and young people are not as engaged in exercising their right to vote. The message that midterm elections matter will be a difficult concept for many voters to embrace after the rancorous 2016 contests.

Yet Representative Veasey argues that the first line of defense for American democracy begins in state races at every level—the very races that voters tend to ignore. But without a new focus on exercising the franchise at every possible opportunity, he fears right-wing conservatives will continue to devise schemes and create loopholes that will make voting harder during a presidential election year when most people really want to vote. “At some point, we have to be in charge of these state legislatures,” Veasey says. “If not, when it comes to things like voter-ID and redistricting, we are always going to be playing defense.”

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Who Are We And who will we

Onlookers on the National Mall observe the second inauguration of Barack Obama, January 21, 2013.

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Americans Now? become under Trump?

By Paul Starr

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Will Trump and Republican rule change not just how the world sees us but our self-understanding?

National elections create a picture of a people, and they send a signal about changes the voters want. The picture and the signal may be distorted and subject to interpretation, but they cannot be ignored. The 2016 election left many people angry at pollsters for failing to predict the outcome, but it revealed a more serious misapprehension among Democrats and on the left about the future. Eight years earlier, Obama’s victory had seemed to demonstrate the historical inevitability of a more diverse and progressive America, and his reelection seemed to confirm it. Yes, Republicans had their base, but it was old and nearly entirely white. Misleading but widely influential demographic forecasts indicated that the United States was destined to become a majority-minority society. The growing acceptance of LGBT rights, especially among the young, suggested that the cultural backlash against the 1960s was receding. Political analysts interpreted demographic and cultural changes as ushering in an inexorable social and political shift that would favor Democrats and that Republicans would have to accommodate.

A historical perspective should have urged caution. Progressive changes have been arrested before. Alongside the civic, universalistic conception of American identity—the idea that people of any race and religion can come from anywhere in the world and be fully American—there has always been an exclusive view of the country’s core identity as white and Christian. When Americans imbued with that understanding have felt under threat, they have struck back. We cannot be cer-

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tain that the arc of the universe ultimately bends toward justice, but we do know that for long periods it has been bent the other way. After Reconstruction in the 19th century and the civil-rights struggle a century later, the South—the white South—did rise again.

Nothing is guaranteed politically by changes in demography, economics, or culture. Every battle for justice and equality must be fought again and again.

So Trump’s victory may not be the “last gasp” of an old and dwindling white majority. It threatens instead to be a tipping-point event. Although the outcome hung on only a sliver of the electorate in three states, it may produce a disproportionate swing of power to the right and a remaking of American society.

Only concerted political action—informed by an accurate understanding of our national situation—can stop that from happening.

The Shock of Two Impossibilities

Before Obama’s election, a black man as president had seemed an impossibility, and before the 2016 primaries, Trump as a major-party nominee, let alone as president, had also seemed an impossibility. Historians decades from now will be asking how these two impossibilities followed one another in immediate succession. If elections create a picture of a people and send a signal about the changes voters want, Americans could not have created two more different pictures of themselves and sent two more different signals than they have now.

When the improbable happens, we may have just gotten the odds wrong. When what we believed to be impossible happens, it tells us we were wrong in a more fundamental way, in

this case about our fellow citizens. The victories of Obama and Trump, however, sent two conflicting error messages about who we are.

Obama’s victory seemed to demonstrate that, contrary to what we may have thought, the greatest shame in our history might finally be history. Perhaps the American people were willing to judge a man by the content of his character rather than the color of his skin. To those who rejoiced at that thought, Obama’s election was not just a hopeful sign of racial healing but an act of national redemption. It was an event, moreover, of global significance, promising a renewal of America’s reputation for equality and decency in the eyes of the world, a fitting culmination of an era of sweeping worldwide change. Hadn’t the Berlin Wall fallen and South African apartheid ended? Obama’s presidency was one more sign of the triumph of tolerance, pluralism, and democracy.

It would be easier to make sense of Trump’s victory if Obama had become unpopular and the voters were repudiating his administration.

As of November, however, Obama enjoyed a healthy approval rating. Nonetheless, Americans elected the very man who spread the birther lie about Obama and came to epitomize the hard-right view that his presidency was illegitimate.

Perhaps Trump’s election shouldn’t have been a surprise. The antecedents can be found in the radicalization of the Republican Party in recent years, and the parallels can be found in the resurgent combinations of populism, xenophobia, and oligarchy in other countries.

But Trump’s triumph was shocking because he acted so often in ways that would have sunk any other candidate. He didn’t just disregard the norms of civility, for example, by bragging about the size of his penis and insulting leaders of his own party. He openly appealed to prejudice when he denounced the Indiana-born judge in the Trump University case as a “Mexican” and called for a ban on Muslim immigrants.

As he had with the birther lie, he resorted to obvious and outrageous falsehoods such as the claim that Ted Cruz’s father had been involved in John F. Kennedy’s assassination (or the more recent lie that millions voted illegally for Hillary Clinton). He violated the norms of democracy by encouraging violence against protesters at his rallies and refusing to say before

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hat’s not who we are,” Barack Obama often says when appealing to Americans to oppose illiberal policies such as torturing prisoners, barring immigrants on the basis of their religion, and denying entry to refugees. But now that Americans have elected a president who has called for precisely those policies, Obama’s confidence about who we are may seem misplaced. Questions about the defining values of our common nationality have haunted us before at critical moments in American history, and now they do again: In the wake of Donald Trump’s election, what does it mean to be an American?

the election that he would accept the results.

Trump’s brazenness didn’t just reveal who he is and how he might govern. Of course, we shouldn’t project all Trump’s views onto all those who voted for him. But when Trump’s statements and actions didn’t prove disqualifying, they revealed something first about the Republican Party and then about the voters in November who chose him as president. This was the real shock: Trump’s ability to get away with violating norms against incivility, violence, prejudice, and lying told us something that we didn’t know, or may not have wanted to believe, about America itself.

Which American Story?

Successful political leaders usually offer a narrative about their country and the world that encourages voters to see them in command.

The story about America told by Trump has deep historical roots, though it is fundamentally different from one that Ronald Reagan, the Bushes, the Clintons, and Obama have been telling. Trump’s story is nationalistic, inward-looking, dark, and divisive but wellcalculated to mobilize a coalition of the resentful and the opportunistic. His two campaign slogans, “America First” and “Make America Great Again,” each encapsulate that story while attacking those who he implies have betrayed the country and dragged it down.

The plain implication of “America First” is that our political leaders have not been putting the nation first. Although few may have recognized it, “America First” was the name and slogan of the leading isolationist group that before Pearl Harbor opposed going to war against European fascism and Japanese imperialism. Trump’s revival of the phrase was not unrelated to its original use. It highlighted his attack on internationalism, as in the television ad late in his campaign that denounced international bankers and displayed photos of Jewish financiers. “America First” also fit perfectly with his phony charges against the Clinton Foundation as a source of foreign influence when Clinton was secretary of state.

The genius of Trump’s attacks on globally oriented elites is that the 2016 election did include a candidate who owns a global business empire with financial interests abroad that pose unprecedented conflicts of interest

in decisions about foreign policy—and that candidate, of course, was Trump. Moreover, Trump’s business is aimed precisely at catering to wealthy global elites. But by dressing himself up as the “America First” candidate, he telegraphed a message about national betrayal directly to people who believe that wealthy global elites have slighted them.

“Make America Great Again” appeals to the same belief that the leaders of the country have failed it and suggests that Trump, a winner himself, will bring that winning game to the nation. At a time when the president was black and a woman was running to succeed him, it hardly needed to be spelled out for Trump’s followers what was great about the past that needed to be restored. While Obama and Clin-

When Trump’s brazenness didn’t prove disqualifying, it told us something about America we may not have believed or wanted to know. ton symbolized an increasingly diverse America that was increasingly comfortable with its diversity, Trump embodied the discomfort with diversity among whites, particularly men.

He artfully summoned up all the smoldering resentments of the Obama years—against blacks, against immigrants, against women, against the media, against “political correctness.” To all those unhappy with the changes since the 1960s, Trump presented himself as their way of taking back America—taking it back to an older, exclusive vision of who Americans are and must continue to be.

It’s tempting to say that there’s nothing new about these ideas. “America First” and “Make America Great Again” could have been slogans of nativist movements in the 19th and early 20th centuries. We have had a long line of racial and religious originalists who have insisted that America’s greatness stems from its white,

Christian founding, rather than from the civic ideals of freedom and equality. The exact lines of conflicts between the forces of closure and those of openness have shifted, but the logic has been the same. When older-stock, native-born whites, typically more small-town and rural, see their power slipping away, they try to shut the gates and reclaim control. That was the impetus behind the immigration restrictions of the 1920s, which were designed to limit the entry of eastern and southern European Catholics and Jews. The same social and cultural forces also typically line up against internationalism and free trade.

Yet, as familiar as Trump’s narrative is, it was not the story about America that recent Republican presidents have told. Reagan was as sunny as Trump is dark. Even when using coded messages to appeal to whites, Reagan and the Bushes stayed within the norms of American politics, declining to incite hostilities, much less violence. The story they repeated was the exceptionalist, civic story of America as a city upon a hill, a beacon of freedom in the world. This is the vision sometimes called the American Creed.

Rhetorically, in fact, there is a more direct line from Reagan to Obama than from Reagan to Trump. Obama has sung the old exceptionalist saga, albeit in a liberal key. Here, for example, is Obama at his second inauguration: …what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional—what makes us American—is our allegiance to an idea articulated in a declaration made more than two centuries ago: ‘We hold these truths to be self-evident, that all men are created equal ….’

The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob.

They gave to us a republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed.

Starting with this familiar invocation of “our founding creed,” Obama then takes the story in a progressive direction:

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We do not believe that in this country freedom is reserved for the lucky, or happiness for the few. We recognize that no matter how responsibly we live our lives, any one of us at any time may face a job loss, or a sudden illness, or a home swept away in a terrible storm. The commitments we make to each other through Medicare and Medicaid and Social Security, these things do not sap our initiative, they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great. …

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity— until bright young students and engineers are enlisted in our workforce rather than expelled from our country. …

Obama’s use of the American Creed to make the liberal argument infuriates conservatives.

Christopher Scalia, the late Supreme Court justice’s son, writes that when Obama criticizes conservative positions by saying, “That’s not who we are,” he is accusing conservatives of being “un-American.” (Scalia cites a count by a conservative website that Obama has used the line “That’s not who we are” 46 times.) But Obama never questions conservatives’ patriotism or loyalty. When he says, “That’s not who we are,” he is saying, “That’s not who we are when we are at our best. That’s not who we should strive to be.”

Obama’s version of the optimistic, exceptionalist narrative has been a way for him not only to reappropriate it from Reagan, but also to speak for the nation, rather than as a “minority” leader. As a black politician, Obama has

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continually had to guard against the danger of being seen as representing blacks alone. The American story he has told, beginning with his speech at the 2004 Democratic Convention, has enabled him to lay claim to national leadership. Democrats will need to remember that lesson, especially as they confront the nationalism of the Trump presidency.

Will Trump Change Us?

We are now on the verge of one of the greatest U-turns in the history of national policy and politics. It may well change the basic workings of our government and private institutions and the role of the United States in the world. The impact is likely to be profound.

Since government is a national looking glass, Americans will see themselves reflected in their government in an altogether different way from the Obama years. Many will look at that reflection and insist, “That’s not who we are.” But to the world—and to many Americans—that is who Americans will be, unless we organize and resist.

When a party controls all three branches of the federal government, it has the power to change society, not just policy. During the past 74 years, Republicans have controlled both Congress and the presidency for only six years (1953–1954, January–May 2001, and 2003– 2006). Republicans now have their biggest opportunity since before the New Deal to consolidate a regime of their own making. Largely shorn of their moderate wing, they are a radical party with a radical president, eager to seize a rare moment to undo not only Obama’s legacy but many earlier achievements of Democrats going back three-quarters of a century—and to institute their own regime in ways that will be hard to reverse.

It is a peculiar fact of our political system, but a fact nonetheless, that a president’s loss of the popular vote has no effect whatsoever on his power. The fewer than 100,000 people in Pennsylvania, Wisconsin, and Michigan who gave Trump an Electoral College majority have altered the course of American history—the only question is by how much. The 2016 election was literally a tipping-point election for the Supreme Court. Trump and the Republican Senate can immediately tip the majority back to the Court’s conservatives, and with

additional seats likely to be filled, they will probably push the balance further to the right.

With little to fear from the Court, Republicans can also pursue more vigorously the course they have already adopted through voter suppression and gerrymandering to make it difficult to vote them out of office. The power of incumbency in American politics is notorious. Since 2010, Republicans have used that power to consolidate their hold on state governments, and they are now poised to entrench themselves federally.

Many of the policies favored by Republicans for ideological reasons do double duty as means of political entrenchment. Policies weakening labor laws and unions strike at an organizational base of the Democratic Party.

Deporting undocumented immigrants who have lived in America with their families for years, instead of providing them a path to citizenship, throws those communities into disarray. Privatizing government transfers not just functions but power and influence to private companies. Turning Medicare into a voucher and Medicaid into a block grant to the states eliminates the rights of beneficiaries under federal law and the role of federal agencies in upholding those rights. Defunding climate science at the Environmental Protection Agency and NASA defunds troublesome climate scientists.

Trump adds another element to the Republican potential for entrenchment. Immediately after the CEO of Boeing criticized Trump’s views on trade in early December, Trump tweeted that it was time to cancel the company’s contract to develop a new design for Air Force One. The message to corporate America was clear—that he would use all means at his disposal to punish any criticism. During the campaign, Trump threatened Amazon founder Jeff Bezos, owner of The Washington Post, with federal investigations because of the Post’s coverage. This is standard practice in populist governments, and not only with respect to the media. Through a combination of favors and threats, the regime turns business into an arm of the state. Republicans were supposed to prefer small government and oppose crony capitalism; they are bringing America the exact opposite.

If Trump does consolidate power in this

way, it will have ramifying effects on American thought. Political leaders shape public knowledge and public opinion, even how people think about themselves. Never has more of a bully occupied the bully pulpit of the presidency. Americans identify with winners, and Trump has made winning the supreme good of his public philosophy. Winning governmental power does confer legitimacy as well as power.

Those who win power can communicate their view of the world from a privileged, official position. When Trump was mainly known for birtherism, the media could treat him as a political crank. When he steps to the podium to speak as president, he must be accorded the respectful attention due the office. It is the greatest platform for grandiosity and falsehood the world offers.

From that position and the power that comes with it, Trump is going to affect who we are—but it may not turn out the way he intends. After assaulting the norms of American politics during the campaign, he seems a good bet to assault the norms of government and international relations as president. His bluster and recklessness will lead to crises, perhaps to war—and that is where the twin possibilities of Trump’s presidency may become clear. Populist leaders often look to crises as a means of enlarging their powers and suppressing dissent; war especially puts the opposition in the difficult position of appearing unpatriotic if it does not join in cheering on the troops.

A people’s sense of their national identity may change in the process.

But crises are also the undoing of governments; leaders who take their countries to war often miscalculate their odds of a quick and easy victory. Crises may arouse a discouraged opposition and enable it to get back on its feet after being knocked down. When reversals of fortune come—whatever the occasion—the opposition must be ready with its own alternatives and its own story.

Remembering Who We Can Be

Trump and the Republicans now hold the upper hand. But an election in which Trump lost the popular vote by more than 2.7 million does not erase what Obama’s election disclosed about America. The United States is a divided society; many people may wonder whether it is even pos-

sible any longer to talk about “we Americans.”

Trump’s America and Obama’s America may seem to be two entirely different countries. One and the same nation, however, made Obama its president twice and has now elected Trump, and our common reality is not one choice or the other but the contradiction between them.

Nationally, Democrats have been winning majorities and losing elections. They have won the popular vote for president in six out of the past seven elections since 1992. But that support hasn’t been enough to win sustained power under the American political system. In the two elections in 2000 and 2016 that saw Democrats turn over the White House to Republicans, they have won the popular vote but lost the Electoral College. Clustered on the coasts and in cities,

Since government is a national looking glass, Americans will now see themselves reflected in an altogether different way from the Obama years. the Democratic vote has also been poorly distributed from the standpoint of controlling the House of Representatives, the Senate, or a majority of the states. The metropolitan clustering of Democratic votes undermines their ability to control the House and state legislatures, and in U.S. Senate elections, Democrats “waste” millions of votes running up big majorities in big states like California and New York. Democrats are now strongest in cities, the weakest part of the federal system.

The Electoral College, the structure of the Senate, and other aspects of the American constitutional system may be unfair, but they are not going to change anytime soon. If Democrats are going to regain power, they will have to broaden their support beyond the constituencies that now support them. They cannot expect salvation from demography even in the long run. Many progressives expect that “peo-

ple of color” will become a majority and shift the balance of power. The very terminology is misleading. In the 2010 census, 53 percent of Hispanics who chose one racial category identified themselves as “white,” and when Hispanics intermarry with non-Hispanic whites (as 80 percent of Mexican Americans do by the third generation), the children overwhelmingly see themselves as non-Hispanic white. As a result of this pattern of “ethnic attrition” and the likely continued redefinition of who counts as white (and perhaps more important, who counts themselves as white), a majority-minority society will probably be a disappearing mirage.

Democrats have made a bet on being the party of diversity, and there is no going back on it. But they have a choice about how to frame their case. They can tell a story about the struggles of separate and distinct groups—racial minorities, immigrants, women, gays—a list that typically leaves out most white men. Or they can tell a story about America that brings whites in by honoring the country’s traditions as well as by emphasizing common economic and social interests. As Obama has shown, the national story can serve as the frame for contemporary struggles for equality. This is not exactly a rejection of “identity politics.”

It is an identity politics of a kind—an effort to ground a majoritarian politics in a shared national identity.

The outcome of the 2016 presidential election wasn’t predetermined by demography, economic conditions, or other circumstances.

Clinton might well have won the few additional votes she needed if not for intervention in the election by Russia and FBI Director James Comey. But Democrats still would not have won control of Congress or many of the states, and they will not be able to reverse the regime Trump and the Republicans put in place unless they can win that kind of widely distributed majority. Democrats can hone a much stronger economic message, and they should. They can hope that Republicans fall out and fight among themselves, which they may. But if we are to recover from the damage and national dishonor of Trump’s presidency, Democrats need to appeal to all Americans as Americans and help all of us remember how we can be genuinely proud of our country again.

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The Democrats in Opposition They not only need to resist Trump.

They need to build power wherever they can.

By Haro ld M e ye rs o n

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do understand power, whatever else may be said about me,” Lyndon Johnson once said. “I know where to look for it and how to use it.”

Of all the indictments that can be leveled against the Democratic Party, perhaps the most serious is that it no longer understands power—where to look for it, how to build it, how to hold it, how to use it. It’s not that the values that Democrats express are at odds with those of most Americans. After all, Democrats have won the popular vote in six of the last seven presidential elections. In 2017, however, Republicans will control all branches of the federal government, not to mention the governor’s office and both houses of the legislature in 25 states. The Democrats have comparable control of just six states, all of them, save California, small.

Yes, there are extenuating circumstances.

There’s the Constitution, which gives Wyoming the same number of senators it gives California, which has 67 times more residents.

There’s the Electoral College, with which our founding fathers, who were both pre- and antidemocratic, saddled us. There’s the gerrymandering that’s given the House, and numerous legislatures, over to the GOP. There’s Democratic clustering in cities, which concentrates Democratic voters in too few congressional and legislative districts. There’s Republicans’ voter suppression. There’s James Comey.

But as Democrats confront the very real menace of a Donald Trump presidency, they need to own up to their own shortcomings and address them as decisively and comprehensively as they can, though some of the needed changes will be the work of many years.

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Some can be dealt with more quickly: Democrats need to recognize that the left populism of the Bernie Sanders campaign spoke to millions of voters who wanted the Democrats to take their side in an economy dominated by Thomas Piketty’s one percent. They need to recognize that they can speak to at least some downwardly mobile white workers without jettisoning the party’s concern for racial, religious, immigrant, and gay and lesbian minorities—so long as they have a credible economic message, not just for urban fast-food workers but for the displaced workers of the post-industrial Midwest. The gaping holes in Trump’s and the Republicans’ economic proposals— boosting infrastructure construction via tax credits, for instance, but also repealing the law that required those working on those projects to receive a decent wage—will likely give the Democrats ample opportunity to wrest the proworker mantle from Trump’s GOP. Devising policies that can not only raise the minimum wage but also restore meaningful work and decent living standards to American workers, however, is a challenge that the Democrats— like parties of the center-left throughout the advanced democracies—have yet to meet.

Above all, the Democrats need to be as serious about power as Lyndon Johnson and Franklin Roosevelt were. In an America where ideological wars rage and where traditional sources of information and political orientation have been greatly weakened, the Democrats need not just a 50-state strategy, but a permanent presence throughout the nation’s increasingly diverse working-class neighborhoods. In its long history, the party can claim

two such organizational presences: the big city machines of the late 19th and early 20th centuries, and the labor unions of the mid-20th century. Both these groups enjoyed a level of political credibility because they delivered real benefits to their constituents: the machines, dispensing patronage jobs to particular immigrant groups; the unions, winning material gains through strikes and collective bargaining. On what basis the Democrats can build new organizations today, in a far more mobile and fluid economy and society, is a conundrum that progressives need to address.

In recent decades, Republicans have understood the importance of partisan civil society institutions far better than the Democrats have.

They have worked assiduously to reduce the power of unions, while Democrats, when they’ve controlled Congress, have been unable to muster the votes to amend federal labor law so that organizing becomes easier. By effectively ending collective bargaining for Wisconsin’s public employees and signing right-to-work legislation for its private-sector workers, Republican Governor Scott Walker understood he was undermining Democratic prospects in state elections for years to come. Since Walker’s election, union membership in Wisconsin has declined by 132,000; Trump’s margin of victory there was 23,000. Exit polls showed Wisconsin voters from union households gave Hillary Clinton an edge over Trump of 53 percent to 43 percent.

But there were a lot fewer union households than there’d been just a few years earlier.

Barack Obama is one of the few great men to have occupied the position of president, but his presidency was short-circuited

nick ut / ap images

A Good Start: Democrats need to build permanent institutions that take to the streets, and a lot more.

from the start by his failure to recognize and maximize his potential levers of power. By effectively neutering the organization of his campaign supporters, Obama for America (he subordinated it to the Democratic National Committee, where it engaged in few political struggles), he left the Democrats devoid of foot soldiers to oppose the Tea Party and campaign for Obama’s own initiatives.

Obama also tended to look too hard for common ground, long after it was clear that Republicans were determined to destroy him.

In many of the budget fights, notably the epic battle of the fiscal cliff, Republicans played a weaker hand far better than Obama played a strong one. It will be a while before Democrats return to exercise the kind of congressional

majorities Obama had in his first two years— and they will need to maximize their leverage.

It’s possible that progressives and the party may profit from the failures of Obama’s example. The current efforts to keep the massive organizations of Bernie Sanders supporters intact and at the ready for the battles of the Trump era suggest that Democrats may have learned from Obama’s mistakes.

Like the great poet of American democ-

racy, the Democratic Party has invariably contained multitudes and has frequently contradicted itself. This hasn’t always worked out well.

In 1860, facing a rising Republican Party opposed to the expansion of slavery, the Democrats nominated two presidential candidates,

one for the South and one for the North. Thus was Abraham Lincoln elected.

In the 1920s, a decade of ferocious identity politics, the party’s two wings—the political machines of Northern cities, representing Catholic and Jewish immigrants; and the nativist, racist, Klan-infused party of the white Protestant South—engaged in fierce, prolonged battles, yielding such spectacles as the party’s 1924 national convention, which dragged on for two weeks and 103 ballots before it could settle on a nominee. (He lost.)

The shock of the Depression and the leadership of Franklin Roosevelt brought the party together around the policies that became the New Deal, but to appease the Southern congressmen whose votes he needed to get those

Winter 2017 The American Prospect 25

policies enacted, Roosevelt had to settle for half a loaf. Minimum-wage standards and the right to form unions didn’t extend to agricultural and domestic workers—chiefly African Americans and women.

Given a new lease on life by the New Deal, labor became a Democratic mainstay, and for much of the postwar boom, business largely backed the Republicans. The rise of the New Right, however, beginning with the Goldwater insurgency, began to nudge more socially liberal business sectors into the Democratic column.

As labor’s clout and ability to finance elections

a range of civil and social rights—for racial minorities, women, gays and lesbians—Wall Street in particular had become the leading force for deregulating finance and offshoring industry, in the name of maximizing shareholder value (or, more simply, self-enrichment).

Like the parties of the European center-left, the Democrats’ hold on the white working class began to weaken as the old industrial economy eroded and the party’s identification with minority rights grew stronger. Democrats came to rely more and more on support not just from minorities but from professionals

Hillary Clinton never took sides. There was ample precedent for her refusal to go more populist. Every post–New Deal Democratic president, beginning with John F. Kennedy, had mixed support for social welfare programs with a cultivation of business interests. Not since Roosevelt and Harry Truman had a Democratic president viewed class as a fundamental political identity, as the key to understanding how most Americans voted, and the foundation of their own political strategies. No post-Truman Democratic presidential candidate would ever have referred to Wall Street bankers as “deplorables.”

Hillary Clinton certainly didn’t, which was one among many reasons why she lost.

Minority Rights And Class Politics—Solidarity Forever: Martin Luther King Jr. and UAW President Walter Reuther in 1963.

weakened under the Reagan administration’s assault in the 1980s, Democrats increasingly turned to Wall Street to finance their campaigns and staff their administrations. While Republican campaign contributions came overwhelmingly from business and the right, by the 1980s, as journalist Thomas Edsall documented, Democratic contributions were split right down the middle: Half from business and more conservative sources; half from labor and liberal groups.

Since then, the party has been a house divided against itself on some key economic issues. Though labor and business agreed on

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as well. Bill Clinton, a campaigner of genius, was able to win the votes of the white working class despite whatever resentment festered over the party’s commitment to racial minorities, but his policies—NAFTA , one-way liberalization of trade relations with China, wholesale financial deregulation that led to financial collapse—were ticking time bombs that exploded electorally this November, shattering not just Hillary Clinton’s presidential prospects but much of the Democrats’ remaining hold on the white working class.

In the Democrats’ internal class conflicts,

stand was that the foundations of a successful Democratic politics had shifted in the wake of the 2008 financial collapse and the very partial recovery that followed it, just as they had shifted once before in the wake of the 1929 market crash and the ensuing Great Depression.

It wasn’t only the party’s dependence on Wall Street for funding and economic counsel that was no longer politically sustainable. The problem was also that the party’s concern—a morally and politically necessary concern—for the rights and livelihoods of minorities didn’t extend to all the nation’s embattled out-groups.

In combining the sharper focus on economic inequality with the party’s long-standing commitment to the civil and social rights of minorities, the Democrats will need to square that circle by recognizing that class is an identity, too—an identity that Democrats need to champion not simply by securing rights for more people, but also by altering the balance of economic power.

At the 2016 Democratic Convention in Philadelphia, the party devoted at least an hour during one afternoon session to a succession of representatives of long-suppressed groups on whom the Democrats were now shining a light. Minority and female delegates; home-care worker delegates; gay, lesbian, and transgender delegates all addressed the convention. There was not a straight white male among them, and a more ringing affirmation of people who’d long been despised and devalued is hard to imagine.

Missing from the convention, however, were

ap images

What Clinton only slowly came to under-

presentations from another group that’s only relatively recently been despised and devalued—the white working class. In 2015, progressives had been appalled by the results of a landmark study by Princeton professors Angus Deaton and Anne Case that showed that the life expectancy of working-class whites had actually been falling in recent years, while that of all other groups had been rising. Suicides and deaths by alcohol and drugs had risen notably in communities devastated by decades of deindustrialization and the failures of policymakers to stanch the flow of offshored jobs or create new industries with comparable levels of pay and security.

In recent years, Democrats and progressive organizations have focused much of their energy on improving the lot of devalued lowincome and immigrant workers, as the Fight for 15 and the minimum-wage hikes in cities and states amply attest. Other devalued and often discarded workers—those of the Rust Belt—didn’t loom as large in most Democrats’ hierarchy of concerns. Many had long since shifted their allegiance to the Republicans or stopped voting at all; many viewed the very groups that the Democrats were championing, all evidence to the contrary, as more the authors of their woes than the corporations that had cast them aside. Moreover, many had an animus toward minorities that had nothing to do with fears of economic competition or the coming of hard times. During the 1968 presidential election, one United Auto Workers survey of its (almost entirely white) members in five New Jersey locals showed support for the independent candidacy of George Wallace, Alabama’s segregationist governor, that ranged from 52 percent in one local to 92 percent in another. The UAW’s campaign among its members to expose Wallace’s antiworker stands eventually brought those levels down, but it’s important to realize that Wallace claimed significant white worker support in Northern states in 1968—near the apogee of white working-class income and security.

Still, Democrats in 2016 (and the Clinton campaign more particularly) ignored or downplayed the moral and political claim these voters had on them at their own peril. A post-election analysis by The Economist concluded that the two greatest predictors that a county’s vote

for Trump would exceed its 2012 vote for Mitt Romney were the percentage of white workingclass residents, and the prevalence of residents with declining life expectancy, and who suffered from obesity, diabetes, and alcoholism.

By one metric, however, these voters are not so exceptional. A number of recent studies have documented how the gap between the life expectancies of all working-class Americans and those of more affluent professionals is wide and getting wider. Men in the upper half of the income spectrum who’ve reached age 65 are living six years longer than they did 40 years ago; men in the lower half are living just 1.3 years longer. If that’s not a basis for the Democrats reaching out to working-class Americans of all races, rural and urban both, I don’t know what is.

In the daily life of many Democratic politicians, the need to integrate the concerns of class and the concerns of particular histori-

In 2018, a host of Democratic senators will stand for re-election in states that voted for Trump and that have a disproportionately white working-class electorate: Missouri’s Claire McCaskill, Montana’s Jon Tester, West Virginia’s Joe Manchin, and Ohio’s Sherrod Brown, to name just a few. As Manchin (who stands at the right wing of the party’s Senate delegation) and Brown (who stands at the left) illustrated in their fight against Mitch McConnell to preserve pension benefits for retired miners, a hard-edged populist politics is an electoral asset today on both wings of the party.

But the incorporation of a class per-

spective into Democratic politics—and policies that restore a more equitable balance of class power—require more than the coming together of the Clinton and Sanders camps. A look back at some of the paths that the Democrats chose not to take over the past half-century

In recent decades, the Democrats downplayed—at their own peril—the moral and political claims of white workers discarded by a changing economy. cally or currently devalued groups is now a matter of course. Incoming Senate Minority Leader Chuck Schumer has made it a priority to have his party’s leading economic progressives, Bernie Sanders and Elizabeth Warren, speak at as many leadership events as he possibly can. American Federation of Teachers President Randi Weingarten, the labor movement’s most enthusiastic supporter of Clinton’s candidacy, has appeared with Sanders at an event sponsored by Sanders’s post-campaign organization, Our Revolution, to boost the candidacy of Representative Keith Ellison for chair of the Democratic National Committee.

In a sense, Ellison combines both strands of Democratic politics: As a Muslim, he belongs to a group Trump has singled out for attack and the Democrats have hastened to defend; as a leading Sanders supporter during the primaries, he also personifies the party’s left turn on economic issues.

suggests some different orientations the party would do well to adopt.

In 1964 and 1965, under the leadership of Johnson, the Democrats made an epochal pivot. Their new mission was to incorporate those Americans left out of the New Deal’s social compact and excluded from basic civil rights into full civic, social, and economic citizenship. The shift was not merely a long-overdue moral statement, but also a reorientation of American politics, moving the historically Democratic white South into the Republican column and winning greater levels of minority support for the Democrats.

In its War on Poverty, the Johnson administration set up a number of training programs to help the poor acquire the skills they needed in the job market, and welfare programs to help the poor at the margins of the economy. As Vanderbilt professor of history Jefferson Cowie notes in his 2015 volume The Great Exception, John-

Winter 2017 The American Prospect 27

son’s program, the Great Society, “was built on the premise that the New Deal generation had solved the [economy’s] major structural problems and that the New Deal order would persist.”

The government’s new “focus on limited welfare arrangements was intended simply to fill in the gaps for those outside the well-organized and well-remunerated sectors of the economy.”

“For New Dealers, the problems of poverty and the labor market were structural,” Cowie continues. “[M]ost Great Society liberals saw it differently. Rather than restructuring the economy and redistributing the wealth, the generation of the 1960s believed that labor market problems tended to be individual and personal—the limitations of the poor themselves.”

Among the architects of the War on Poverty, there was one prominent dissident from this perspective. While fully supporting inner-city training and job programs, and lending his staff to help with political organizing in African

co-determination, of splitting corporate board membership between management and worker representatives. In a globalized and increasingly automated economy, co-determination can’t and shouldn’t stop economic change, but time and again, it has humanized it. Volks­ wagen, reeling from its falsified-emissions scandal, recently announced that it would lay off 23,000 of its German employees through attrition, but it also said that it would create 9,000 new jobs for its workers to produce electric cars. That was the decision its half-workerhalf-management board arrived at.

Surprisingly, the new British Tory government has shown a keen interest in co-determination. Responding to the working-class discontent that fueled the passage of Brexit, Prime Minister Theresa May has not only called for stimulus spending, but also said she wants British corporations to include worker representatives on their boards. She hasn’t

The U.K.’s new Conservative government has called on corporations to divide their boards between shareholders and employees. So should U.S. Democrats.

American neighborhoods, Walter Reuther, the president of the UAW during the postwar boom years, also advanced a more social democratic perspective. “You can’t compartmentalize the problem [of poverty] and say we will just talk about this little piece,” he told a House committee in 1964. The solution was not only increased public spending. Broadly shared prosperity, he continued, required democratizing investment power, by, among other things, dividing corporate boards between shareholder and stakeholder—that is, worker and public—members.

Absent that kind of power-sharing, Reuther believed, the New Deal’s more equitable distribution of wealth and income would eventually erode. Economics was at bottom a question not just of skills and rights, but of power.

Reuther’s presentiments must have sounded a little apocalyptic to most Democrats in 1964. In 2016, they don’t sound so apocalyptic after all.

The Germans, of course, do have a system of

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called for legislation mandating such a change, but her recommendations—coming from the leader of the Conservative Party in the only nation whose economy is as bank- and shareholder-dominated as our own—are a stunning acknowledgment of the establishment’s need to at least appear to heed worker interests.

If it’s good enough for British Tories, how about for American Democrats, who have a credibility gap with their own country’s workers? Congressional Democrats will have a host of opportunities to oppose Trumpian initiatives, but there is hay to be made on the shortcomings of Trumponomics in particular. At the federal level, advocating for affordable college and opposing the re-privatization of student loans is a good place to start. Championing codetermination would be a good issue as well.

As for actually building wage-increasing institutions, and ongoing institutions that can build political power—well, for that, we must turn

to the many cities and the few states where Democrats now govern.

Cities and states have already erected

battlements to protect their residents—their immigrants most especially—from Trump’s coming diktats. In recent years, they’ve also enacted a range of progressive initiatives, most prominently minimum-wage hikes and the provision of worker rights and benefits, that could not be more different from Trump’s economic priorities.

Can they also foster institutions that build worker and Democratic power? They’re preempted by federal law from doing anything about collective bargaining in the private sector, and the Supreme Court, once a Trumpappointed successor to Justice Antonin Scalia is confirmed, is likely to strike a debilitating blow to public-sector unions, too.

That doesn’t mean states and cities are powerless in matters of worker organization, however. A number of cities condition their permitting of developments on the developer’s agreeing not to oppose the unionization of workers in his or her project. After passing landmark wage-and-benefit legislation, both Seattle and San Francisco have authorized new organizations of workers to monitor compliance with and violations of the laws.

But states and cities could go further. In Belgium, unions are in charge of administering unemployment benefits, which is one reason why Belgian unions have not shrunk like their counterparts throughout the West. In the United States, unemployment insurance and other job-related programs are administered at the state level. A state like California could foster working-class organization by authorizing a new workers’ group to help state residents navigate and secure pay and benefits in the rapidly changing job market. Such an organization could also spin off a political adjunct.

Building institutions of class power, identity-­ group power, and party power must become the primary long-term project for Democrats.

Some of the organizing will be done digitally; some will involve shoe leather. Such success as the right has achieved in recent decades has come not just from an assault on liberal values, but on liberal organizations. Democrats need to rebuild both.

Latinos and the Future of American Politics

Defending immigrants and championing progressive economics (that even Rust Belt whites could like) are imperative —and complementary.

By M anu e l Pas t o r

W

hen I was in my third year of college, a group of friends and I decided to drive down to Mazatlán, Mexico, for spring break.

One pit stop along the way was my house in L.A. where my mother eyed the one Anglo sidekick who did not speak Spanish and decided to teach him what she thought might be the most useful phrase for a gringo soon to be adrift in Mexico: “La culpa no es mia.”

Literally translated as “the fault is not mine,” it indeed came in handy as a defensive phrase when we eventually tangled with federales on a sandy Pacific beach (it’s a long story). But it’s also been on my mind as I listen to some observers express surprise and disappointment that Latino voters, at least according to the official exit polls, may have leaned more to Donald Trump in 2016 than they did to Mitt Romney in 2012.

There is a heated debate about the accuracy of that analysis and it seems clear that “la culpa no es nuestra [ours]”: Latino voters posted a healthy turnout, managed to help elect Democratic senators in Colorado and Nevada (including the first Latina to ever serve in that body), and were even key to pushing California’s Orange County, long a bastion of right-wing Republicanism, to vote Democratic in the presidential contest for the first time since the Great Depression.

So while an even more progressive Latino vote could have made the presidential difference in, say, Florida (always a challenge given the Republican-leaning Cuban population),

the problem this year was not the weakness of the still-evolving brown electorate. Rather, it was the quiet storm in the so-called Blue Wall: the batch of Midwestern states that have been battered by economic change, made anxious by demographic shifts (which have, in fact, only begun to touch them), and so were very susceptible to Trump’s unvarnished appeals to racial and economic restoration.

To some degree, the current liberal and progressive neck snap to the Midwest is understandable: We do need to catch up to Michael Moore and fully grasp just what led white voters (including a plurality of the white college-educated) to embrace a reality show billionaire with a self-declared proclivity for sexual assault. How did he make inroads by promising to deport or exclude people who mostly don’t live anywhere near those states? How do we detox our body politic so we can bridge differences and focus attention on what is likely a central task before us: generating a convincing economic program?

We can’t let a healthy dose of attention to the distressed white voter, however, lead us to give up on mobilizing the emerging electorate, particularly the growing Latino population that will constitute roughly 40 percent of the newly eligible electorate between now and 2030 (with the overwhelming majority of that coming from young Latinos turning 18). So any postgame analysis needs to be clear on what exactly happened to the Latino and immigrant electorate this year, as well as on the immediate challenges ahead, particularly the threats

posed if Trump’s economic plan crumbles and the deportation sideshow becomes the main psychic payoff to his frustrated voters.

Every electoral season brings the high

hope that this will be the year when Latinos will finally make a difference. The term “sleeping giant” gets bandied around, with the hope that the wake-up occurs and that the results will be overwhelming for the good guys. Expectations were especially high this year: Having the eventual Republican nominee kick off his campaign by labeling Mexicans “rapists” and “criminals” and then attacking a Mexican American judge for being, well, Mexican American, seemed a surefire way to activate Latino voters and steer them to a Democratic alternative.

Moreover, a series of groups had already been pushing hard for the engagement of immigrant voters, abetted in part by encouragement from Spanish-language and other ethnic media.

Applications for naturalization in the first half of 2016—which had historically been enough lead time to ensure citizenship and registration by November—were up about 30 percent above the first half of 2015. While there were processing problems induced by the rush (which likely diminished some of the anti-Trump vote), observers suggested that the immigrant vote was likely to be larger than in previous years.

Indeed, the signs pointed to a Latino surge during the early-voting period, a phenomenon reported breathlessly by the press. But the immediate post-election analysis suggested

Winter 2017 The American Prospect 29

that may have been a bit of vote-banking, that Latino turnout on Election Day was not all that impressive, and that Clinton actually fared more poorly against her Republican opponent than Obama had four years earlier. Apparently, recruiting a vice presidential candidate who spoke Spanish and pitting that ticket against Trump and Mike Pence was not enough to rouse the giant from slumber.

Or was it?

The election postmortems have featured a sharp debate between the polling firm Latino Decisions and just about everyone else. Latino Decisions claims to have a better method for deriving a reliable Latino sample, primarily through a combination of over-sampling, geographic targeting, and the use of bilingual interviewers (something that allows pollsters to include and more accurately assess those

30 WWW.Prospect.org Winter 2017

Spanish-dominant voters likely affected by the appropriately strident anti-Trump tone of Univision and Telemundo).

According to Latino Decisions, the official exit poll report that 29 percent of Latino voters supported Trump is a significant over-statement, and the real figure is likely 18 percent.

(Even that is a bit shocking, and analyzing which Latinos voted for Trump is likely to generate several dissertations on political cognitive dissonance.) Latino Decisions also contends that the Latino turnout may have improved between 2012 and 2016 at a rate well above the hopeful 17 percent increase originally predicted by the National Association of Latino Elected and Appointed Officials (NALEO)—and far above the roughly 9 percent growth in the national Latino population over that time period.

On the face of it, both a surge and an anti-

Trump bent seem a more probable response to a candidate who vilified immigrants and promised to strip away health care from the population that seems to have benefited most from Obamacare. A similar set of questions has been raised about the findings for Asian voters: The official exit polls have them embracing Trump with the same misplaced enthusiasm as Latinos (29 percent), while an election eve poll focused on Asian Americans indicated that Trump was likely rejected by about 80 percent of that population, a pattern more in line with a long-term shift to Democrats on the part of the Asian American electorate.

Many pollsters and pundits have discounted the Latino Decisions data. Analysts at FiveThirtyEight.com have suggested that the Latino Decisions data on Hispanic voting diverged from the 2016 exit polls more than they did from

richard vogel / ap images

Spanish Is Spoken Here: Voters check in at the North Hollywood Amelia Earhart Regional Library polling station in Los Angeles on November 8, 2016.

2012’s, so there could be something off about this year’s Latino-specific polling. Spanishlanguage media was much more pronounced against the Republican in 2016, however, and so the sort of bilingual interviewing done by Latino Decisions, not the standard practice in the exit poll, would tend to pick that up.

Moreover, Latino Democratic candidates won five House seats in November in districts not previously represented by Latinos—a striking increase for a mid-decade election year that did not follow a census count and redistricting, and an outcome more consistent with Latinos waking than sleeping.

Between Latino Decisions and the polling establishment, I’m perfectly willing to split some difference—no one version of the truth is perfect—but you can guess in which direction I might lean.

This might seem like a mundane academ-

ic debate—#ImproveTheSample doesn’t have quite the same battle cry ring as #NotMyPresident—but it can profoundly influence where Democrats and progressives should commit future resources for voter mobilization. Bigger margins and higher numbers should suggest more attention to Latino (and Asian) concerns, particularly as the Democratic Party struggles to pick itself up and respond to the evolving electorate. Not so much attention would be warranted if these groups didn’t show. That’s why it’s important to remember that they did.

Indeed, how we rebuild and with whom are crucial questions for progressives going forward.

After all, this truly was America’s “Prop 187” moment—that is, a contest akin to the 1994 California campaign where an opportunistic Republican gubernatorial candidate, trailing in the polls, pushed a ballot measure to deny nearly all services to the undocumented as a way to gin up the vote among anxious whites just emerging from a deep recession. It worked for the Republican then—and did so this year as well.

In California, the strategic response was clear and the blowback was relatively quick.

Naturalization rates stepped up, Latinos got more engaged, and eventually became more permanently aligned with the state Democratic Party (and the Democratic Party with them).

But this wasn’t a phenomenon that occurred all on its own: Labor unions, movement organiz-

ers, and others pushed it along. In the process, it turned California—once a red state, then a purple one—into deepest blue.

So believe me when I stress that we obviously need to pay heed to those disaffected white voters and speak to the real economic pain and uncertainty they are facing. Such an approach will be key to a state-by-state strategy (since if there is one thing this election demonstrates convincingly, it’s that states matter).

But we also need to remember the constituencies of color that pushed such states as Arizona and Texas even more in the direction of Democrats (with shifts from the 2012 losing margins of 5.5 and 6.8 percentage points, respectively).

Moreover, the Trump wish to freeze America’s demography will not work: Even if some of their parents are deported, by 2030, nearly a million U.S.-born Latino youth will be turning 18 every year. In the long run, continuing to invest in naturalization, working to improve the registra-

called sanctuary cities in an attempt to cut off local support for the DACA kids and their allies.

Of course, the incoming administration is promising a much wider range of draconian actions on immigration, including building a border wall (or, now we are told, perhaps a fence), mobilizing a deportation force to target immigrants who have criminal convictions, and then stopping to catch their breath before figuring what other senseless and costly strategies to pursue.

There are easy policy cases to make against these efforts. Having local law enforcement refuse cooperation with Immigration and Customs Enforcement (ICE), the main feature of providing “sanctuary,” is good for community policing. A wall is expensive and unnecessary, particularly given expansions in border security and workplace verification. The number of undocumented immigrants with felony criminal convictions is about one-tenth of the three million Trump has bandied about—and even

It should be noted that the margins by which Democrats lost Texas and Arizona in 2016 were markedly smaller than in 2012, thanks to communities of color. tion and participation of the Latino electorate, and mobilizing a millennial generation that is eager to do battle with the forces of reaction are also key elements of building progressive power.

A multi-faceted approach— one that

strengthens Latino political power and responds to the economic concerns driving all voters—is all the more important since Latinos are likely to be under special attack. One front will be immigration policy, perhaps most immediately Trump’s threatened Day 1 revocation of Deferred Action for Childhood Arrivals (DACA).

DACA was the program established by President Obama’s 2012 executive order that has allowed younger undocumented immigrants who were brought to the United States by their parents and essentially grew up as American to be temporarily shielded from deportation.

Another early action Trump has promised is to end various streams of federal funding to so-

that number includes such “bad hombres” as a 31-year-old mother of three in Arkansas who has been in the country for 25 years, speaks with a recognizable—California—accent, and has been held in a detention facility for a year because she was convicted for forging a check as a teenager.

As well, these initiatives are not broadly popular. Recent post-election polling shows that 60 percent of Americans actually favor granting undocumented immigrants a path to citizenship, with another 12 percent in favor of some non-citizen legal status. Only 25 percent favor deportation. There is, of course, a sharp blue-red divide here: A bare plurality of Republicans favor removal while 90 percent of Democrats favor some route to legalization.

And therein lies the dilemma Trump will face: Whatever sense one strategy or another may make as policy (and it’s not clear that making sense is a huge constraint on Trump’s thinking), he will need to feed the fervor he has

Winter 2017 The American Prospect 31

tapped into and stirred up. The easiest target is ending DACA: It can be done by executive order and, if it is phased in gradually (so that the time periods for existing work permits are simply allowed to lapse without renewal), the spectacle of tossing nearly 800,000 young Americans back into the shadows will be done drip-by-drip rather than in a painful (and more easily protest-able) flood.

But that pain will be real, and not simply for the DACA-mented recipients who will lose their legal status. For many reasons, this is the group that has had the best chance of benefiting from gaining legal status: They are much more likely than other undocumented residents to speak English well and have U.S. educations that translate more effectively in our labor markets. Moreover, it was likely the most motivated of the pool of eligibles who applied for DACA , providing yet another reason to expect big gains from this group.

ing large swaths of the population will feel the ripple effects of their loss of status. As a result, there will be a widespread destabilization of Latino households and families.

But immigration is not the only issue concerning Latino leaders as the Trump administration approaches. Consider health care: Over the first two years of the Affordable Care Act, the uninsured rate for non-elderly Latinos fell by 9 percentage points, more than for any other ethnic group. (Asians were second with a 7 percentage-point improvement in health coverage.) Repealing Obamacare, including the extension of Medicaid for lower-income Americans (including poor whites who also disproportionately benefited), is a serious challenge for Latino well-being.

Voting rights are also under threat. Kris Kobach, the Kansas secretary of state who shopped anti-immigrant ordinances around the country, has also been peddling new

Recent post-election polling shows that 60 percent of Americans favor granting undocumented immigrants a path to citizenship. Only 25 percent favor deportation.

That has shown up in the data. According to a recent study of DACA recipients, nearly 90 percent are working, nearly 50 percent are in school (with many, of course, doing both), and they report an average of a more than 40 percent gain in hourly wages once given legal permission to work. For an administration with a supposed commitment to economic recovery, this is an expensive bit of race-baiting: The Center for American Progress estimates that ending DACA could cost nearly $450 billion in lost GDP over a decade.

Latinos will be particularly hard-hit by any DACA rollback. For reasons that are

not totally understood, many Asian immigrants have steered clear of DACA and about 95 percent of the DACA beneficiaries are from Latin American countries. And these young people have family members (after all, that’s who brought them here), suggest-

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voter-­ID laws designed to disenfranchise voters of color, and has been invited to advise the incoming president on issues related to homeland security. Senator Jeff Sessions, the attorney general-designee, has a “record of hostility” to voting rights, according to the NAACP Legal Defense Fund; he would be a disaster for Latinos, Muslims, and African Americans, as well as for anyone who cares about civil rights and democracy.

Meanwhile, another quiet corner of Trump’s government could be among the most critical: the Census Bureau (located within the Department of Commerce). Its decennial count, after all, sets the terms for government distribution of resources as well as the drawing of electoral districts. Latinos were already especially susceptible to being undercounted in 2010. If immigrant families, scared off by a government seeking to separate them, become even more reticent to participate in the census, this

could sharply reduce the flow of funds to more diverse cities and counties.

Like other Americans, Latinos are generally more concerned about the economy and education than other issues. But here, too, the Trump agenda is threatening: With lower household incomes and high rates of labor-force participation, Latinos tend to benefit from increases in the minimum wage—not cuts in corporate tax rates. The appointment of Betsy DeVos as secretary of education, an heiress who has spent years pushing for charter schools and voucher programs, worries those who believe public schools are a key platform for a path to the middle class.

All these threats to Latino interests point to where progressives can build a commonfront agenda. Everyone can gain from a more inclusive economy, a stronger education system, more-not-less democracy, and continual forward movement on health security. But we can’t get there by ill-framed attacks on “identity liberalism” that seem to blame minority mobilization for causing us to lose sight of what we share. After all, the identity politics of this season was the white working class voting more white than working-class; working- and middle-class voters of color actually seemed pretty solid for the progressive agenda.

Everyone on the left, including activists steeped in ethnic politics, needs to find a better way to address the concerns of older anxious voters, to bridge the divides of race, geography, and culture, and to offer a unifying economic and social vision. But to get there, we must engage in the tough conversations about racial inequity and economic injustice that will lead us to uncommon common ground.

This will require several heavy lifts.

First, we have to frankly assess the situation but also avoid the blame game. Like many others, I have been speaking around the country after this election, seeming to play the role of grief counselor (a role I did not anticipate when I got my doctorate in economics rather than psychology more than three decades ago). For the most part, the disputes about why Democrats and progressives got mostly shellacked have been civil—when things turn out this badly, everyone should question their own prior strategy. Indeed, the disagreements I raise above are not to cast aspersions but

rather to create the lasting foundation to work together. A little kindness toward each other will go a long way in what is likely to be a season of Trump-inspired meanness.

Second, we do need to prioritize generating a broad and credible economic alternative. The president-elect had one: Your problems are due to unfair competition from international trade and wage-cutting immigrants. It didn’t make much difference how much that had to do with reality; it was a story that cut through in a way that Hillary Clinton’s never did and Bernie Sanders’s nearly did. The outlines of such a

istration become more apparent every day.

Fourth, we should help mobilize and support strong local resistance to the new federal regime. I hail from Los Angeles, a place that is promising to rebuff any attempt to engage our police or our city in the enforcement of immigration law. California’s president pro tempore of the state senate and speaker of the assembly— both Latinos—issued a remarkable statement the day after the election affirming the values of California and pledging to keep the state “a refuge of justice and opportunity for people of all walks, talks, ages, and aspirations.” The Left

russell contrer a s / ap images

Looming Menace: A Trump piñata at a rally of Las Vegas hotel union members, who helped Democrats sweep Nevada.

progressive alternative are for another article, but key elements include a commitment to full employment for all as well as an embrace of the emerging evidence that inequality is actually bad for our economic as well as civic health.

Third, we need to step up registration and participation among the growing populations of color—especially Latinos, who are likely to be pushed further left by the policies of the incoming administration. One prediction: The Trump piñatas that became best-sellers during the campaign will have a long shelf life and could come to symbolize a broad realignment toward the Democratic column, as the racially exclusive strategies of the admin-

Coast is ready to fight—and the left in general should be as well, particularly since anti-immigrant and anti-Muslim efforts are as likely to deplete our social justice organizations as they are to decimate our communities.

Fifth, we need to make special efforts to engage millennials, many of whom are still shell-shocked by what their elders are bequeathing them. In doing this, we should recognize that race does matter: 44 percent of all Latino eligible voters are millennials, while the share among blacks is 35 percent and among whites 27 percent. Fortunately, this generation is able to hold both economic equity and anti-racist messages in their heads at the same time. They

have also generated a culture of political mobilization, creating a generation of Dreamers, Black Lives Matter activists, LGBTQ advocates, and all of their allies. We can’t speak past them; we need to speak with them.

Finally, we have to consider how to truly start bridging across differences. In an era of “narrowcast” media, American social life is largely devoid of everyday conversations across political lines. The panic felt by groups arrayed across the ideological and social spectra becomes the gist for snarky comments and mean posts rather than the grounds for empathy. We need to do better—and we can start by pointing to what the next America is really telling us about our future.

Several days after the election, I traveled to Pennsylvania to give a series of talks, one of which was to high school–age “Breakthrough Leaders” in a town that has experienced significant demographic change. Facing a large audience of easily bored teenagers, I decided it was better to listen than to talk. And so I asked: “What do you think makes for a good leader?”

From an audience that was virtually all black or Latino, the answers poured back without hesitation: honesty, reliability, responsibility, listening, flexibility, and a concern for the whole team. I was simultaneously saddened and inspired. On the one hand, I realized that they had just seen a president elected who embodied virtually none of those values. But I also realized that the coming America that many Trump voters seemed so scared about espoused values that are about as mainstream as you can imagine.

These next four years could actually be a lot worse than many even imagine. We will need to defend the most vulnerable, but we will also need to develop new leaders and ideas that help us push the promise of American democracy. We will need to rethink and regroup, exploring new strategies even as we stay focused on the task of forging a long-lasting and inclusive coalition.

And Latinos, with a large footprint in the working class and an intersectional and multiracial identity forged by challenging exclusion, will be an important part of the progressive future.

Manuel Pastor is a professor of sociology and the director of the Center for the Study of Immigrant Integration at the University of Southern California.

Winter 2017 The American Prospect 33

Trump And the

World As a candidate, Trump had more favorable things to say about Vladimir Putin than about America’s democratic allies and alliances. What happens now with war and peace, the rule of law, and the world economy? i l l u s t r at i o n s B y J o h n R i t t e r

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Blustering Toward Armageddon How Donald Trump will take America to war

By Jerem i S u ri

richard drew / ap images

A

merica’s wartime presidents have often been elected on promises to avert or to end wars.

In 1915, Woodrow Wilson declared, “There is such a thing as a man being too proud to fight.”

Lyndon Johnson offered “peace without conquest.” George W. Bush pledged to avoid “nation-building” in his one serious statement about foreign policy during the 2000 election. Nonetheless, each of these presidents found himself embroiled in a war that cost thousands of American lives. And each left office deeply unpopular.

Donald Trump is not like any other president in American history, but he will probably fit this pattern. He has claimed, falsely, that he opposed the disastrous war in Iraq, begun by George W. Bush in 2003. He has condemned Barack Obama and Hillary Clinton for using military force to support the overthrow of Libyan tyrant Moammar Gadhafi. He has even hinted that he would work with Syrian dictator Bashar al-Assad and Russian leader Vladimir Putin, ending all American military support for rebel groups in Syria. Trump would clearly prefer to outsource the fight against ISIS and other extremists to regional dictators, minimizing human and financial costs for the United States.

This is the enduring, and deeply mistaken, allure of a widely held American idea about deterrence. Call it belligerent deterrence: If only we build intimidating military capabilities (“second to none”) and maintain a steady stream of threatening rhetoric about bombing our enemies into oblivion (and waterboarding them if we capture them), we expect challengers to cower in their caves. Thanks in part to the twisted logic promoted by Henry Kissinger and other “realists,” we expect that flexing our muscles will increase our “credibility” so that allies will fight on our behalf, and adversaries will back down and give us what we want, with “no concessions” on our part. To hear Trump and mainstream Republicans talk about contemporary Iran, they seem to expect the mullahs to turn over their nuclear capabilities to us, even without negotiations, because we are so strong, so tough, so righteous.

The political logic of belligerent deterrence sells well to American voters who want absolute security at little cost

(our allies will pay for it, Trump promises), but the historical record is clear: Tough-guy posturing encourages challenges to American power, especially from adversaries who recognize how presidential claims exceed military capabilities and public support at home for follow-through.

Allies have an interest in holding presidents to their rhetoric, using American pledges of strength to justify their own cuts in military spending. When adversaries challenge our toughness and allies call upon it—as inevitably happens—American leaders are stuck taking military action they never intended or prepared for.

Contrary to our bullying expectations, belligerent deterrence traps the United States in unintended wars. During the Cold War, that precise dynamic embroiled the United States in extended, bloody, unsuccessful wars in Korea, Vietnam, Angola, Lebanon, and Afghanistan. After the Cold War, the same logic turned the United States into an occupying power in the Middle East.

Trump’s presidency will bring us more of the same, with even worse consequences. He is not interested in policy detail, expertise, or experience. He bases his personal power on the very kinds of blustering rhetoric and muscular posturing that have caused so many problems for American policy in the past. Although Trump’s positions on various international issues remain uncertain, his attitude toward foreign policy is clear and consistent: He will act unilaterally, using threats to intimidate allies and adversaries, and he will make deals with other tough guys, particularly Putin. Trump believes that by displaying strength he will deter challengers abroad as he has at home, and he expects that he can control the crises he creates to cow opponents and prevent war. He will use bluff, bluster, and even a little “madness” to keep others off balance, to control the international agenda, and, ultimately, to extort maximum benefits for the United States.

Everything in Trump’s improbable election to the presidency has validated these behavior patterns in his own eyes. This is his operational code, his self-proclaimed “genius.” We should anticipate that he will act this way as president.

Of course, international affairs do not follow the pat-

Winter 2017 The American Prospect 35

Practicing Their Moves: Russian navy ships and helicopters take part in a landing operation during military drills in September at the Black Sea coast, Crimea. Putin is projecting Russian military power overseas on a scale unseen since Soviet times.

His belligerent deterrence will induce global war-fighting, as happened repeatedly during the Cold War. This time, the damage will be much greater and perhaps existential.

We are witnessing the rapid demise of the American-led world order that for 70 years averted war among the largest states. The next few years, perhaps just the first year of the Trump presidency, will bring us to a dangerous new precipice in multiple parts of the globe. America doesn’t face the risk of war in just one theater of conflict. Under President Trump, the United States faces that risk in at least four separate theaters.

Middle East

More than any other region, the Middle East has preoccupied American policymakers since the September 11, 2001, terrorist attacks. The United States has spent trillions of dollars and deployed millions of soldiers in an effort to limit a series of civil wars between dictators and insurgent movements, different sects of Islam, and brutal

36 WWW.Prospect.org Winter 2017

paramilitary groups. At times, the United States has relied on strong state actors—in Israel, Saudi Arabia, Turkey, and Egypt—to enforce order. At other times, the United States has stepped in directly, forcing Saddam Hussein’s Iraqi army out of Kuwait, then overthrowing his regime and trying to build a new one.

The United States has been consistently at war in the Middle East for 25 years, but the fighting has been largely contained to the region because American efforts have remained limited. America has not attacked Iran or Syria—two countries with formidable military capabilities and strong allies—and it has restrained other countries (especially Israel) from attacking either. The United States has also kept the Persian Gulf open to sea travel, policed much of the common airspace, and encouraged negotiations during periods of heightened tensions. Washington has worked to protect population centers from terror attacks and to dismantle terrorist networks. Perhaps most important, the United States has consistently sought to keep nuclear weapons, including its own, out of the region. The Iranian nuclear agreement, negotiated by the Obama administration in 2015, was a stopgap against the imminent development of a nuclear weapon by Tehran, perhaps followed by several of its Muslim neighbors. (Israel has maintained an “undisclosed” nuclear weapons capability since the late 1960s.)

These American activities have rarely accomplished all or most of what Washington wanted, but they have kept the considerable violence in the Middle East contained. Although terrorist groups have perpetrated isolated acts outside the region, they have not undermined global stability. The United States has prevented that from happening, but with Trump it will be different.

Here is how the danger could unfold. Trump promises at the start of his administration to tear up the Iranian nuclear agreement, possibly leading Tehran to resume its nuclear weapons program and become a nuclear power in a few months. With that prospect in view, Israel will likely do what it has advocated for at least eight years: It will take preventive military action—a combination of air strikes and covert sabotage programs—to destroy Iran’s nuclear facilities. At the same time, if not before, Israeli leaders are likely to press the United States to recognize Jerusalem, not Tel Aviv, as their official capital, and initiate a new set of settlements in the occupied territories. Trump will likely approve of all of these belligerent actions.

Nuclear proliferation may well go beyond Iran. Saudi Arabia, and perhaps Egypt and Syria, will have an interest in developing a nuclear arsenal in response to Iranian and

pav e l g o lo v k i n / a p i m a g e s

terns of electoral politics or domestic policymaking. There are many more powerful actors, and the world is too vast and complex for even the most powerful to dominate for long. The webs of interdependence in the international system make it difficult to foresee the consequences of decisions. Consequently, those who start down a path often find it takes them to places they never intended to go.

Trump will quickly and irretrievably lose control of his threats and commitments, and he will find himself pressured to pursue unwanted wars to preserve the very image of toughness that will get him into trouble in the first place.

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Israeli proliferation. Saudi Arabia will act more aggressively in Yemen and other parts of the region to assert its influence and limit Iran. Tehran will retaliate through its allies in Syria, Lebanon, Yemen, and other areas. Tehran will also retaliate against Israeli civilian areas and trade.

The fighting in the Middle East between these states could rapidly escalate and affect American assets, forcing a response in Washington. President Trump will initially side with Israel and Saudi Arabia, as all presidents have in the recent past, which could bring the United States to the brink of war with Iran and its allies, including Iraq. By the second half of Trump’s first term, if this scenario plays out, we should expect a large American ground presence again in the Middle East, more terrorism sponsored from the region reaching the United States and western Europe, and the possibility of a nuclear exchange between Iran and Israel. We will long for the days of contained conflict in the region and sub-state threats, including al-Qaeda and ISIS. State-to-state conflict in the region will be much worse, and very difficult to resolve.

Europe

Despite repeated American efforts to “reset” relations with Russia, Putin’s government has followed a clear path of aggression since at least 2008, when Russian forces invaded the northern part of the independent Georgian republic. In Putin’s boldest move, he annexed Crimea and launched an insurgency in Ukraine in 2014. Putin has subsequently added a large nuclear missile arsenal in Kaliningrad, bordering Poland and Lithuania—both NATO members. Russian jets have challenged NATO aircraft around the Baltics. Russian cyber attacks on the United States, including during the 2016 presidential election, have contributed to a “return to Cold War,” as the political scientist Robert Legvold describes current U.S.-Russian relations. The hopes for what the last Soviet general secretary, Mikhail Gorbachev, called a “common European home” have rapidly faded away.

Trump has said on numerous occasions that he seeks to make a “deal” of some sort with Putin. The obvious move in this direction would be a grand bargain that splits Europe again into two halves. Trump has promised to cajole America’s European allies into paying more for NATO, while the United States disengages and reduces its contributions. If the Europeans cannot contribute more, Trump has said, the United States will have to consider leaving NATO altogether. He clearly feels more comfortable dealing with Putin than with America’s democratic allies in Europe—though if Marine Le Pen is elected president of France, Trump will have a pro-Putin populist ally at the top of a major western European state.

As in the Middle East, Trump’s policies could lead to

war. Here’s how that could happen. Trump will reach out to Putin while he also affirms American strength in Europe.

That combination may initially make Trump look strong, but it will also embolden Russian aggression and undermine European defenses. Putin will see a green light in Trump’s indifference to eastern Europe, as the countries in Russia’s shadow feel abandoned by Washington. The resulting anger and anxieties in Europe will diminish NATO and open internal European divisions for Putin to exploit, which he will.

Like other aggressive dictators, Putin will continue to push until someone stops him. A Russian incursion into a Baltic country or elsewhere in Russia’s “near abroad” will trigger a panic in Europe and a reversal of opinion within the United States. All of a sudden Trump’s posturing will look empty and he will appear weak in comparison with Putin.

In this crisis atmosphere, Trump will be forced to threaten American intervention against Putin, who will retaliate in kind. The two sides will mobilize forces in Europe, particularly in the air and at sea. War will break out when Lithuanian or other eastern European forces fire on Russian soldiers. As Putin responds, Trump will feel his manhood is on the line in defending the European victims. His effort to hit back hard will trigger a wider escalation. By the end of Trump’s first term, we could well have a hot war in Europe, a renewed Russian-American arms race, and increased nuclear tensions. A “return to Cold War” will seem far preferable.

North Korea

Trump has said nothing of substance about North Korea’s nuclear and missile developments, Kim Jong-un’s totalitarian regime, and its threats to South Korea, Japan, and the United States. North Korea’s leader even exceeds Trump in bluster and unpredictability; the two together are a recipe for chaos. Under present conditions, North Korea’s poorly nourished but militarily sophisticated government is likely to survive and expand its capability for launching a nuclear strike across the Pacific, maybe even to the West Coast of the United States. What is certain is that North Korea has the conventional capability to destroy Seoul in a matter of hours, killing millions of people.

The Bush and Obama administrations relied on a multilateral diplomatic framework—including South Korea, Japan, China, Russia, and the United States—to contain North Korea’s belligerence. This group also helped to manage repeated crises, especially the North Korean shelling of the South Korean–held Yeonpyeong Island in 2010.

Through the United Nations, the multilateral framework has imposed tight sanctions on North Korean access to trade, travel, and financial transactions. Pyongyang has

All of a sudden Trump’s Posturing will look empty and he will

appear

weak in comparison with Putin.

Winter 2017 The American Prospect 37

Despite his tough rhetoric and muscular posturing,

Trump’s

diplomatic

ineptitude will quickly diminish America’s role in managing North Korea.

evaded some of these sanctions at times, with Chinese and Russian assistance, but the regime has found itself boxed in, unable to exert influence outside its immediate region.

Kim Jong-un has appealed to Trump’s ego through state media that have called Trump a “wise politician”— words never used by the North Koreans for an American president before. Kim has, however, shown no interest in abandoning his nuclear program or curtailing his repeated threats against neighbors. If anything, he has increased the brutality of his hold on power, even executing close advisers and family members in public.

There are no good solutions to the North Korean threat because none of the key regional actors wants a war or the humanitarian crisis that would result from the fighting and subsequent refugee avalanche. In addition, the Chinese and Russians oppose any expansion of American power on the Korean peninsula, which would result from a South Korean occupation of the North, placing America’s close military ally on the borders of both China and Russia. The current stalemate, technically in place since the armistice in the Korean War in July 1953, looks better than any of the alternatives.

Trump, however, does not appreciate complicated multilateral relations, and he does not value delicate diplomacy, to say the least. It is hard to imagine him managing all the egos and interests involved in the complicated negotiations around North Korea. He is unlikely to study the issues closely, show the necessary caution in his words and actions, or appoint appropriately qualified people in government. This is a region where area expertise and local credibility are crucial.

As a candidate, Trump suggested that Japan and South Korea need to provide for their own defense, casting doubt on whether as president he would fulfill American treaty commitments in East Asia. We should not anticipate Trump immediately triggering a war against North Korea. If anything, he is likely to try to forget about the issue, perhaps leaving it to the Chinese to manage. We should expect, however, that he will undermine productive working relations with regional partners, sowing divisions that Kim Jong-un will try to exploit. Sensing uncertainty and division among the other countries, North Korea’s leader is likely to become more belligerent and threatening in coming months. He is likely to speed up his nuclear missile program, launch a new series of attacks on South Korean and Japanese assets, and increase his verbal attacks on South Korean and Japanese leaders, though Kim will probably avoid criticizing Trump, in the hope of appealing to his vanity.

Increased division and conflict around North Korea will raise the risks of conflict as Pyongyang is emboldened. Seoul and Tokyo will feel they have to take matters into their own hands, and Beijing will assert its regional

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dominance. Russia will probably act as a provocateur on all sides, as it does in the Middle East, increasing its own influence through regional divisions. Despite his tough rhetoric and muscular posturing, Trump’s diplomatic ineptitude will quickly diminish America’s role in managing North Korea, forcing us to follow the lead of others. In the event of direct military conflict involving South Korea and Japan, we will have to decide whether to jump into a war to support our allies, or let them fend for themselves, with enormous destruction to two of the world’s largest economies.

The long-term economic and strategic costs to the United States from Trump’s unilateralism in East Asia will be enormous. By the end of Trump’s first term we are likely to see a more militaristic, nuclear-capable Japan, among other things. Postwar East Asian peace and prosperity could come to a quick end.

South China Sea

Conflict in Northeast Asia will contribute to more of the same in the South China Sea, one of the most complicated strategic spaces on the globe. Key waterways and resources are claimed simultaneously by the Philippines, Vietnam, Malaysia, Indonesia, and, of course, China. During the last decade, an increasingly powerful Chinese navy has pushed into new areas and even created artificial Chinese island bases, while Vietnam and the Philippines have resisted China’s advances, condemning Beijing in international forums and calling in American support. Until recently, Chinese aggression drew other countries closer to Washington, despite deep historical reasons for distrust of the United States in the region. American naval assistance against China, as well as direct aid during recent natural disasters, has raised the region’s reliance on Washington.

Trump’s time in the White House will likely reverse that pattern. His apparent indifference to the region makes American defenses for Vietnamese, Filipino, Malaysian, and Indonesian claims unpersuasive. Just as Trump will embolden Putin and raise anxieties in Europe, he will also embolden the Chinese and raise concerns among the countries that Beijing threatens.

Under Trump, the ability of the United States to moderate the escalating conflict in the South China Sea will be diminished. We will become more dependent on our limited military options as a result of failing to nurture other necessary sources of influence. Chinese power will grow and the United States will have to contemplate direct military conflict in the South China Sea as the only viable response.

Unwanted but Unavoidable War

I am not arguing that all of these four scenarios for war will proceed as described, but there is a high probability that

Trump

ritchie b tongo / ap images

& the World

at least one of them will. Even though Trump believes he is tough enough to scare away challengers, his presidency will be defined by war. His efforts to deter will antagonize and provoke. His inattention to details and diplomacy will empower those in other countries with close command of regional complexities.

Trump’s choice of advisers may compound the problem.

According to his top national security adviser, General Michael Flynn, “Most of human history has to do with war, and preparations for the next one.” Trump’s nominee for secretary of defense, General James “Mad Dog” Mattis, has said similar things. Trump’s chosen secretary of state will have little ability to resist the administration’s overwhelming favoritism for tough-talk and belligerence, without adequate preparations.

Trump’s tendency toward erratic risk-taking fundamentally undermines the regional relationships and power balances that have precariously kept the general peace for the last 70 years. Maintaining that peace is hard work—harder than making war. Trump’s instinct for shortcuts and issue avoidance will cede on-theground influence to others, especially the Chinese and the Russians. Trump’s parading of toughness will provoke

more tests, challenges, and ultimately disappointments.

The new president’s unilateralism and posturing will destabilize dangerous regions, empower bad actors, and back the United States into a corner when the choice with Russia or China or another powerful state becomes war or retreat, without anything in between. Like other presidents, Trump is likely to stumble into war, entrapped by his own words and self-constraining actions. Unlike other presidents, Trump is poorly suited to learn from his early mistakes. He is much more likely to compound them, lie about them, and make up alternative “facts.”

In this setting, the American tendency to war will have much longer and more enduring consequences. Trump’s wars will start in regions and spread globally. Small and impulsive presidential actions will drive this process.

The United States will be more (self-) isolated than it has been since before World War II. The United States will be more reactive than strategic, and more belligerent than cautious.

Trump believes he can bluff his way out of war, but other countries will call his bluffs repeatedly. America has elected a gambler who thinks he can substitute bluster for brains. This will not end well.

Power Project: This aerial photo taken through a glass window of a military plane shows China’s alleged ongoing reclamation of Mischief Reef in the Spratly Islands in the South China Sea, May 11, 2015.

Jeremi Suri is a professor in the Department of History and the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin, where he holds the Mack Brown Distinguished Chair for Leadership in Global Affairs. He has written or edited eight books on American politics and foreign policy, including The Impossible Presidency: The Rise and Fall of America’s Highest Office, which comes out this spring.

Winter 2017 The American Prospect 39

The Rise of Populist Nationalism in Europe and the United States

Why American democracy has more resilience to fall back on

By Jo hn S hattu c k

T

he election of Donald Trump shows what happens when democracy misfires. It echoes recent developments in Europe, most notably in Hungary and Poland, where elected leaders are attacking democratic pluralism, minority rights, and civil liberties, keeping the forms of democracy without the substance. The same trends are proceeding in France, the Netherlands, the U.K., and other European democracies where far-right parties under the banner of populist nationalism are pursuing racist and xenophobic objectives.

Having returned to the United States this fall after seven years in Hungary, I am struck by the shocking parallel between what is happening in Europe and here at home. The Trump election signals a sharp turn toward the populist far right. The presidential campaign was marked by the denigration of women and minorities and the rhetoric of racial extremism. The president-elect’s early appointments include people with these views. Civil liberties are threatened. Foreign alliances are in jeopardy. The risk of war is heightened.

There are similarities and differences between the environment that has produced Trump and the circumstances fueling the rise of European nationalism. What can we learn from what’s happening in Europe? What are the firewalls against authoritarianism in the United States?

Democracy is in trouble for many of the same reasons on both sides of the Atlantic. Discontent is widespread.

In 2014, a European Commission poll revealed that 68 percent of Europeans distrusted their national governments, and 78 percent distrusted the political parties that had produced them. In the United States, a Gallup poll showed that 65 percent of Americans were dissatisfied with their system of government and how it works—a striking increase from only 23 percent in 2002.

A reason for the discontent is a sense that the world is out of control, and elected governments are making matters worse. A deeper reason is that people are confused about democracy—demanding greater participation in their own

40 WWW.Prospect.org winter 2017

governance and greater efficiency in the way government operates. Democracy is at war with itself—citizens look to democratic governments to solve their problems, but are unwilling to recognize their own responsibility for keeping democracy healthy.

The roots of discontent can be found in recent Western social and economic revolutions that have simultaneously strengthened and weakened democracy in Europe and the United States.

The cultural revolution of the 1960s created a world of individual rights and freedoms, transforming democratic society by strengthening pluralism and minority rights.

But a counterrevolution has turned the struggle for human rights and civil liberties into an endlessly divisive political battleground, in which the resurgent racism, sexism, and xenophobia of the Trump campaign is the latest example.

The market revolution of the 1980s enshrined the market as an engine of economic growth. It also drastically reduced the role of government in regulating the economy, cutting back the social benefits of a mixed economy and a welfare state. It paved the way for the rise of new economic elites, globalization, and inequality, while breeding political resentment among those left behind.

The political revolution of 1989 marked the end of the Cold War, the opening of borders, and the beginning of a transition to democracy and free markets in Eastern Europe. But it also marked the end of the social contract between economic elites and the people. In Europe, the government began to restrict social support programs, and in the United States, employers reduced employee health plans, pensions, and job security.

The most recent democratic upheaval, the internet revolution, opened the floodgates of information, creating unlimited opportunities for peer-to-peer communication and bottomup pressure for change. But it amplified amateur voices and spawned echo chambers and ghettos of communication, reducing discourse across political divides and increasing the

Trump

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polarization of democratic societies. Fake news mixed easily with verified facts, and was often more powerful than the facts because it confirmed prejudices. Meanwhile, the same digital revolution gave governments new powers to invade privacy, in democracies as well as dictatorships.

alexey vit vitsk y / sputnik via ap images

Democratic discontent is especially acute in Eastern

Europe, where the roots of democracy are shallow. Here, self-styled “illiberal” leaders like Hungary’s Viktor Orban are paving the way for right-wing nationalists like France’s Marine Le Pen, and providing a potential model for Donald Trump in the United States.

Autocratic nationalism in Eastern Europe—like the Trump revolution in the United States—is a product of populist anger at outside oppressors, disaffection from elites, and disappointment with the market economy. Eastern Europeans were ruled for centuries by successive empires of Ottoman, Russian, Habsburg, fascist, and communist authoritarian regimes. A hunger for national identity and honor among the peoples of the region grew out of oppression by their rulers—the Habsburgs, who executed the first elected Hungarian prime minister in 1849; the Russians, who dominated Poland throughout the 19th century; and the Turks, who defeated the Serbs in the Battle of Kosovo Polje at the end of the 14th century. The collective Serb memory of Turkish conquest was so powerful that Slobodan Milosevic invoked it 600 years later when he launched his genocidal ethnic cleansing campaigns against Muslims in Bosnia and Kosovo, massive crimes that revealed the dark side of populist nationalism in post–Cold War Europe.

Totalitarianism after World War II shattered civil society in Eastern Europe. It also destroyed the sense of citizen responsibility essential for the growth of democracy. In Prague in the 1990s, “volunteering” had a negative connotation because it was seen as “collaborating” with oppressive rulers. In Budapest, residents wary of “communal” premises did not take care of common spaces in apartment buildings. Communism’s alternative to civil society was state employment and social security, but of course these were dismantled when the communist regimes fell.

After 1989, hopes in Eastern Europe that democracy would bring immediate economic benefits went unfulfilled. Standards of living failed to keep pace with popular expectations, especially after the financial crisis hit the region in 2009.

In this neuralgic environment, Eastern Europeans were attracted to political leaders who claimed they could defend them against outsiders like the foreign banks that had called in their mortgages when the financial markets collapsed.

These festering resentments were the building blocks of an autocratic populist nationalism that is relevant to what is happening today in the United States. In our country, identity politics is cultural and racial. In Europe, it tends to

be national. Ignored by the liberal proponents of post–Cold War European integration, identity politics were taken up with a vengeance by right-wing leaders who developed divisive “us versus them” nationalist narratives to appeal to a resentful and confused populace.

In Hungary, on the losing side of both world wars as an ally of Germany, the nationalist narrative depicts Hungarians as victims. The treaty ending World War I dismantled the Habsburg Empire and stripped Hungary of two-thirds of its lands, separating Hungarians from their compatriots.

This narrative claims that Hungarians (who were allies of Hitler) were victims of German occupation in 1944 who were forced to participate in the Holocaust, despite overwhelming evidence to the contrary. The nationalist identity narrative proclaims, “Brussels is the new Moscow.” Casting the European Union as a hostile foreign power serves the interests of nationalist politicians whose popularity is boosted whenever EU authorities question their commitment to democracy.

Eastern European autocratic nationalism is also built on the politics of fear. Leaders have linked the threat of terrorism in their countries to the refugees fleeing violence in the Middle East. In Hungary, Slovakia, and Poland, the governing parties have branded Muslim refugees as “a threat to Christian civilization.” The Hungarian government claims that Muslim refugees in Europe are all potential terrorists, and has enacted an anti-terror law giving the government emergency powers to declare “a state of terror threat” and suspend the constitution.

In July 2014, Viktor Orban proclaimed in a speech following his April re-election as prime minister that Hungary was “an illiberal democracy.” The prime minister stated that Hungary and its Eastern European neighbors were explicitly rejecting the liberal values of individual rights. To emphasize his point, he asserted that “the Hungarian nation is not a pile of individuals” like the West. Orban claimed that liberal democracy was a failure, pointing to political division and economic inequality in the United States, and dysfunction in the EU on financial policy and migration.

The elements of an “illiberal democracy” are similar in Orban’s Hungary and Trump’s America. The entry point is an election victory achieved by denigrating the opposition, through distortion and innuendo, as criminal and elitist, and appealing to ethnic identity and national revival. The critical feature of the new governance model is a legislative supermajority that guarantees total control by the ruling party. In Hungary, this opened the door following the 2010 elections to constitutional changes abolishing checks and balances and other key distinguishing features of pluralist democracy.

The Illiberal : Hungarian Prime Minister Viktor Orban at the EU Summit in Brussels last October

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election campaign last year, promising that religious and ethnic nationalism would protect Poles from an invasion of Muslims into Poland’s homogeneous Catholic society.

The government took a page out of the Hungarian playbook by attacking the Polish Constitutional Court and the independence of the Polish judiciary.

An internal battle is shaping up in Europe and the United States between liberal and illiberal democracy. At stake are the values that safeguard against a repeat of the world’s catastrophic experience with fascism and communist totalitarianism. Disturbing signs are everywhere about the declining health of Western democracies—the steady fall in participation, broad distrust of political leaders, alienation from distant decision-makers, the corrupting influence of money in politics, and increasing polarization and gridlock. Out of this discontent, populist nationalists and demagogues on both sides of the Atlantic, like Orban and Trump, have come to power through democratic elections.

But illiberal governance has weaknesses. The legacy

of state control over the economy in Eastern Europe and its eventual collapse under communism has shown that it is difficult for centralized authoritarian regimes to deliver economically to their citizens. This is particularly true for countries like Hungary and Poland that have been incorporated into a much larger interconnected market economy like the European Union. Russia and China, cited by Orban as models of illiberal governance, are both faltering economically because of the way they are governed politically.

A related weakness is that illiberal governance breeds systemic corruption, which is a drag on economic growth and a source of political instability, as the situation in Russia demonstrates. The governments of Eastern European countries have high unfavorability ratings compared with other EU member states on Transparency International’s European Corruption Index. They are rife with crony oligarchs whose conflicts of interest and amassing of wealth drain public resources and sap competition.

A further weakness is that, even in autocracies, civil society seeps in. Illiberal governance is vulnerable to the digital revolution, which allows increased peer-to-peer flows of information and amplifies grassroots pressure for change. Traditional media have fallen under the control of illiberal regimes, but digital media have not. In Hungary in 2014, more than 100,000 people took to the streets when the government threatened to tax internet use, and it had to back down.

As the Hungarian internet tax controversy shows, illiberal regimes have few institutional safety valves for citizen discontent. When popular pressures build, the regime must either back down or resort to coercion. The government crackdown on the Maidan democracy movement in

zo lta n m at h e / m t i v i a a p i m a g e s

Huddled Masses, Go Home: The temporary border fence on the Hungarian-Serbian border near Roszke, southeast of Budapest, Hungary

The central claims of the new illiberal system are its promises of efficiency, collective purpose, and national pride. The trade-offs to achieve these goals are the centralization of power and curtailment of individual rights. A central question is whether this model is sustainable, especially when it is inside a larger transnational system like the European Union. In his 2014 speech, Orban challenged the EU, claiming, “I don’t think our EU membership precludes building an illiberal new state based on a national foundation.” If Hungary’s rejection of EU values is replicated by other countries across Europe, the transnational system will collapse.

The Hungarian government is undermining structures that maximize accountability and liberty within a framework of democratic governance—checks and balances, independence of the judiciary and the media, the protection of minorities, a pluralist civil society, and the rule of law. The government used its supermajority in 2011 to push through a media law broadening official media channels and reducing independent media. It amended the constitution to reduce the power and independence of the country’s principal safeguard against arbitrary rule, the Hungarian Constitutional Court. It instituted a regulatory crackdown on NGOs and civic groups that receive international funding, causing President Barack Obama to include Hungary in a list of countries using “endless regulations and overt intimidation” against civil society. The government has honored anti-Semitic leaders of the interwar regime that allied with Hitler’s Germany and paved the way for the Hungarian Holocaust by passing four separate anti-Jewish laws. And, for more than a year, the government has led a campaign to block refugees fleeing violence in Syria, Afghanistan, and Iraq from entering Europe.

In September 2015, the Hungarian government galvanized nationalists across Europe when it constructed razor-wire fences on Hungary’s borders and stationed its army and police to keep out refugees. The result was a huge boost to the governing party’s popularity at home, and the prime minister’s emergence on the European stage as a challenger to German Chancellor Angela Merkel, whose humanitarian response to the crisis reflected the values of the EU. The refugee crisis provided a golden opportunity for Hungarian, Polish, and other Eastern European leaders to burnish their illiberal credentials. To paraphrase the Polish sociologist Zygmunt Bauman, illiberal leaders use chaos to create the opportunity for imposing order.

The Polish government is now emulating the Hungarian model. It made the refugee issue a central feature of its

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Ukraine showed how the use of violence by an authoritarian regime can lead to greater public discontent and pressure for more radical change. The result in Ukraine was the replacement of an illiberal regime with a more open government. In short, illiberal governance stimulates and feeds on popular fears and anxieties. But without a safety valve for discontent, it may not be sustainable in the long run.

In Eastern Europe, it’s not yet clear whether these vulnerabilities will lead to a political reversal and a liberal democratic opposition coming to power through elections—or to deeper repression and entrenchment of the regime, as in Putin’s Russia.

The United States, with its democratic and civic tra-

ditions, is better prepared to resist permanent autocratic rule. If Trump, like Orban, moves toward authoritarianism, unique characteristics of the American political system that are different from those in Eastern Europe will be available to opponents to organize effective resistance.

The United States is better equipped than Hungary to resist a leader who uses an election to centralize power and undermine the country’s pluralist institutions. While the United States has had more than two centuries of constitutional democracy, Hungary and many other European countries, especially in the east, have limited democratic traditions and long experience under authoritarian rule. And in contrast to the United States’ immigrant history and vast ethnic diversity, Hungary, Poland, and other countries tending toward authoritarianism are far smaller, relatively homogeneous societies that are readily susceptible to xenophobia.

Strong civil society organizations can provide a platform for resisting authoritarianism, but in Eastern Europe the legacy of communism has stunted the growth of civil society, limiting its effectiveness as a counterweight to government. Press freedom and independence are guaranteed by law and tradition in the United States, but the media in Eastern Europe are identified by their political party connections and are rarely able to push back against government dominance or manipulation. An independent judiciary is essential for effective resistance to authoritarian rule, but the courts in Hungary have been reshaped by constitutional changes pushed through by the government’s parliamentary supermajority. Finally, congressional procedures in the United States are more complex than parliamentary rules in Eastern Europe, where it is easier for a government majority to push through its agenda and even change the constitution if it has supermajority status.

Americans may be in a better position than Europeans to resist autocracy, but the challenge nevertheless will be great if Donald Trump tries to govern as an autocrat. The new president comes into office with vast powers: control of both houses of Congress, national-security authority

that has been broadened and extended by both of his immediate predecessors, an open Supreme Court seat and perhaps more, the power to overturn executive decisions made by President Obama in key areas such as the environment and immigration, the ability to populate the government with extremists, and the power of the bully pulpit to rally his constituency and set the tone of government, including, crucially, the tone of its relations with ethnic, racial, and political minorities and noncitizens.

There are precedents for reining in presidents who threaten human rights. Richard Nixon used the power of the presidency to attack the Constitution and his political enemies.

In response, the courts, the media, and civil society resisted and the House of Representatives voted to impeach him for high crimes and misdemeanors. Ronald Reagan and his congressional allies attempted to overturn judicial and legislative safeguards of the rights of minorities and women.

A bipartisan coalition of moderate Republicans and Democrats, professional organizations, and civil-rights groups succeeded in defending against this attack. The administration of George W. Bush, in violation of the Constitution and international law, instituted the use of torture in the “war on terror” after September 11, but resistance inside the federal bureaucracy, and by the federal courts and members of Congress succeeded in eventually reinstating the torture ban.

I was involved in all three of these successful campaigns to defend the rights of Americans against authoritarian assertions of presidential power. A similar campaign will have to be launched if Donald Trump abuses his power at the expense of the people.

There are six major democratic assets in the United States that can be used to resist autocracy. None of them is a guarantee, but together they represent a firewall for American democracy that can be deployed by citizens collectively determined to protect their freedom.

First is the great diversity of American society. In contrast to the largely homogeneous populations of Eastern Europe, the United States is a nation of immigrants and minorities, woven together in a vast patchwork of racial, ethnic, and religious groups, connected by a common interest in freedom and opportunity for themselves, their families, and their communities. Trump appealed to the “forgotten (white) man” who feels threatened by this diversity. But as the Bernie Sanders campaign demonstrated, there are ways of reaching this constituency from the left. Cross-cutting economic interests in creating jobs, protecting social welfare, and reducing inequality connect Trump and non-Trump voters, making it possible to imagine a broad political base for promoting economic justice and resisting extremism, particularly since Hillary Clinton received nearly three million more popular votes than Trump, and 54 percent of the total votes cast were against Trump. Organizing a broad-based demand for eco-

illiberal governance breeds

systemic

corruption,

which is a drag on economic growth and a source of political instability.

Winter 2017 The American Prospect 43

John Shattuck is a professor at the Fletcher School of Law and Diplomacy and a senior fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School. He served as the president and rector of Central European University in Budapest from 2009 to 2016; assistant secretary of state for democracy, human rights and labor (1993–1998); ambassador to the Czech Republic (1998–2000); and was national staff counsel and Washington office director of the American Civil Liberties Union (1971–1984).

nomic inclusion would undercut Trump’s brand of racially exclusive autocracy, symbolized by his appointment of Breit­ bart media executive Stephen Bannon as his chief White House strategist. The Bannon appointment has appalled almost as many Republicans as Democrats.

Second are the federal courts. Unlike European national courts, the federal judiciary has the authority to review challenges to executive or legislative actions that violate citizen rights, and as noted, the courts have done so repeatedly during previous presidencies. I was the lawyer in a case successfully challenging President Nixon’s warrantless wiretapping of government officials and journalists, which was cited in the Nixon impeachment proceedings.

Obama has appointed several hundred federal judges who can be counted on to uphold the Constitution against presidential abuses of power. Judges appointed by previous presidents have not hesitated to do so. The incoming president will have the power to nominate one Supreme Court justice to fill an open seat, but this will not change the current five-justice majority in very recent decisions involving abortion rights, press freedom, and civil rights.

The federal courts are not a panacea for the diseases afflicting democracy. They are procedurally ponderous and institutionally cautious, and federal judges are trained to stay within the confines of precedent. But there is ample proof that the federal judiciary has played a role in the past in restraining presidents from exceeding their constitutional authority and protecting and advancing the constitutional rights of citizens. There is good reason to believe that they can do so under the Trump presidency.

Third is the federal system itself. Unlike European countries where government power is centralized, the United States is made up of state and local governments, as well as the federal government, and power on most domestic issues is constitutionally diffused throughout the system.

On the day Trump was elected president, scores of state and local-level referenda were passed on such issues as education reform, de-incarceration, and marijuana use.

It has long been a Republican mantra to devolve domestic policymaking to the states, and this is likely to continue in the Trump era, though some Republicans are happy to undermine federalism when it suits their ideological goals. There is also a danger in this approach: Civil-rights and civil-liberties standards (like abortion and gay rights) could be lowered by some states, and it will be up to the federal courts to guard against that.

Fourth is the strong and multi-layered civil society of the United States, in contrast to the anemic civil society of Eastern Europe. This is the greatest potential engine of resistance to autocratic nationalism. Amplified by social media, American civil society organizations have the capacity to build coalitions and create pressures on

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Congress and the executive branch. A broad coalition to save the federal courts led by the American Bar Association and the American Civil Liberties Union prevented the Reagan administration from passing legislation to take away the jurisdiction of the federal courts in cases involving abortion rights and school desegregation. From coalition-building to political lobbying to mass demonstrations, civil society will be the backbone of any movement to resist authoritarianism. This will require people to come out of their silos and reach across partisan divides to seek common ground on political goals such as defending immigration, protecting the environment, resisting discrimination against minorities and women, and preventing torture from being reintroduced in terrorism investigations. In each of these areas, several Republicans in Congress have already signaled that they will resist extremist Trump policies. Civil society organizations across the political spectrum should work with them to build bipartisan coalitions.

Fifth is the news media. Unlike Europe, the media in the United States are constitutionally protected and beyond the reach of most forms of regulation. Donald Trump has threatened to control the media by strengthening state libel laws, but these threats ring hollow against the unanimous opposition of Republican and Democratic judges.

Bigger challenges for the media are its fragmentation in an increasingly digital landscape, and its susceptibility to manipulation by propagandists and political liars, as well as regulatory threats. But the very diversity of our media is an important tool of democracy against authoritarianism.

Finally, Congress is a potential source of resistance to assertions of presidential power. In European parliamentary systems, a prime minister who controls a supermajority, as Orban did from 2010 to 2015 in Hungary, can force legislation through parliamentary opposition. In the United States, Congress and the president are separate branches of government. Congressional procedures such as the filibuster in the Senate and the rules process in the House can slow or stop the progress of legislation, especially if the president’s party is divided over policy, as is the case with the Republican Party after the Trump election.

At this writing, too many Republicans have been willing to do Trump’s bidding, seeing him as the agent of their policy agenda. But it takes only three defections in a Senate divided 52-48. If Trump resorts to blatant extraconstitutional extremism, there are likely to be enough Republican senators committed to civil liberties and the rule of law to prevent him from succeeding.

These features of American democracy can be safeguards against the abuse of presidential power. But citizens must mobilize to resist illiberal governance. Now is the time for mobilization, before it is too late and the United States begins to resemble an Eastern European autocracy.

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America’s Interest in a Global Rule of Law

Will Trump destroy the global order that the U.S. has led?

By W ill Hutto n

T

he United States may no longer be the hegemonic world power that it was in 1945, but it remains unambiguously the world’s leader. America’s willingness to lead in multiple forums—the United Nations, climate change conventions, NATO, trade agreements—sets the tone for global rule of law. Yes, America has its blemishes and so does the global system, among them tensions over the unequal gains from globalization and double standards on human rights. But U.S. leadership of the international treaty system, with multilateral rules and shared processes of mutual respect, is still the first and last line of defense against worldwide forces that insist on brute assertion of self-interest justified by appeals to each nation’s special culture.

The threat to the globe, and to the United States, is that Donald Trump personifies those self-same menacing forces.

His contemptuous attitude toward the international system he now leads will shatter the framework that however imperfectly has created a global society and pursuit of international rule of law. Trump could mark the end of an epoch—and the opening of a perilous new one of dog-eat-dog competition, ruthless assertion of individual national interest, and a hardening of enmities. Bluntly, it is pure poison.

Trump’s view of the world is based on a profound misreading of how the system works, how asymmetrically it is organized to benefit the United States, and the terms on which the rest of the world has accepted, albeit grudgingly, what is an extraordinarily biased bargain. The United States is not the victim of the current international framework. It is one of its principal beneficiaries. American-led globalization is the foundation of America’s astonishing corporate success. The great West Coast high-tech multinationals—Apple, Google, Facebook, Microsoft, Amazon— and the wave of startups and scale-ups that are following them astonish the globe.

These multinationals could not exist without an open trading system and the ongoing pre-eminence of the dollar

as the world currency. Wall Street and Silicon Valley are the unambiguous centers of global financial and technological power. Trump talks as if the United States were an economic down-and-out. In fact, America has created proportionally more jobs than any other leading country since the financial crisis. Its unemployment rate is at a nine-year low—4.6 percent. Its companies, banks, and brands straddle the world. It has created a global supply chain to support its dynamic continental economy: About two-thirds of U.S. imports are brought in by American companies. A genuine challenge—and one that helped bring Trump to power—is the uneven distribution of those benefits within the United States. But that will not be improved by blowing up the system, much less by bullying one U.S. company or imposing one impulsive tariff at a time.

Trump doesn’t see it or recognize it, nor does much of the U.S. public on either the left or the right—but America enjoys a new form of global dominance. If you are China, Japan, or the European Union, it is not very satisfactory being part of someone else’s movie. But America’s allies, including my country, Great Britain, go along with it because the experience of the last 70 years tells them the process is ultimately benign. Better to be part of a growing supply chain and try to use the system for their benefit than for there to be no system at all. Until now, much of the world has trusted the United States as a force for good. The country’s values of democracy, rule of law, and insistence on justice and humanity are celebrated in its movies, culture, and music. America may make huge mistakes, but in the end it has been on the side of good.

Economically, the World Trade Organization, from which Trump threatens to walk away, serves both U.S. and global interests because it is the mechanism by which the world system stays open. The balance of benefits both within the U.S. and between the U.S. and other nations remains a fair debate, but one that requires an overall WTO framework. The world accepts that the United Nations is

Winter 2017 The American Prospect 45

It is bewildering that the presidentelect labors

under the

illusion

that America is seen as weak.

based in New York and the International Monetary Fund and World Bank in Washington precisely because it knows that the United States is the indispensable capstone on which hangs the world order—diplomacy, finance, economics, trade, security. Some might chafe, China especially, from the astonishing potential force the possession of a worldwide system of military bases, fleets, nuclear missiles, and armies confers. But the majority of the world accepts it because the United States is trusted to use its power judiciously more often than not, and ultimately to underpin the global system from which we all benefit. One should not underestimate the vacuum that would result if the United States were to withdraw from its leadership role. Neither China nor Russia holding such power would be benign—nor benignly regarded.

Geopolitically, NATO complements the U.S.-led economic system, but more overtly. It is the vehicle that legitimizes U.S. military power. It deters Russia’s expansionist ambitions in either the Ukraine or Baltic republics. The Japanese-U.S. defense treaty plays the same role in Asia, legitimizing the U.S. system of bases in Asia and deterring China from territorial ambitions in Taiwan or the South China Sea. Moreover, global concerns of common interest need some standing forum in which they can be discussed and joint action can be legitimized, acted upon, and then adjudicated impartially when there are disputes. It could be developing a common response to a noxious new virus like Zika or checking the growth of emissions of greenhouse gases to limit global warming. It could be ensuring that nuclear energy plants are built to common safety standards or that there are guidance systems and overflying rights for civilian aircraft anywhere in the globe. It is all but impossible to achieve such goals unilaterally or even bilaterally.

Over the decades, the United Nations has developed a family of agencies—the World Health Organization, successive climate change conventions, the International Atomic Energy Agency, and the International Civil Aviation Organization, to name just a few—to pursue common standards and goals. It is easy to dismiss the U.N. as ineffectual because of the scale of global problems it confronts, or because so many of its members are not democracies, or even because it includes nations that do not defer to the United States. Indeed, Trump has been quick to do so, declaring that it is not a “friend to democracy, to freedom—it’s not even a friend to the United States.” But for all its weaknesses, the U.N. is what is there. Trump may scorn it, but how would he replace it?

The entire U.N. system is only as strong as America’s committed participation. It was only when the United States signaled in 2015 that it was prepared, along with China, to commit to reducing greenhouse gas emissions

46 WWW.Prospect.org Winter 2017

that the way was opened to the extraordinary Paris Agreement, a deal to limit the growth of global temperatures to less than 2 degrees Celsius, with each country determining its contribution and finding the finance for developing more carbon-efficient energy sources. If Trump pulls out of the U.N. Convention on Climate Change, it will fall.

His disdain and insistence on bilateral deal-making similarly menaces the entire U.N. structure, from funding for the World Bank and the IMF to its capacity to act in the world’s hot spots. There is a global—and U.S.—interest in making this apparatus function. Without the United States, it will fragment. And the United States will find it far more difficult to deal with new menaces like ISIS if Trump tries to go it alone, or links up with dictators (such as Russia’s Vladimir Putin) who have a very different conception of national interest and global interest.

The United States has stood at the apex of a treaty framework for global peace and a multilateral framework for the governance of global issues—even if they are tilted for U.S. benefit. However imperfectly, it has worked.

It is thus bewildering that the president-elect labors

under the illusion that the country is seen as weak, a victim that needs to thunder back and brutally assert its interests, as if they had been neglected. Strongmen like Putin with a vigorous portfolio of conservative views to which Trump is instinctively sympathetic—anti-Muslim, Russia first, anti–gay marriage—are not exemplars to be emulated, but dangers to an already fragile world order who need to be confronted and contained. There is not an array of one-sided deals to be done around the world in which the United States, newly unafraid to use its muscle under an America First president, can take all the prizes and leave nothing for its partners. This is the road to perdition, conflict, and economic stagnation.

A core Trumpian proposition, that U.S. military supremacy is under threat, is sheer hokum. American military spending outstrips that of the rest of the world combined by a comfortable margin. Its capacity to project military power is the most awesome the globe has witnessed. Its battlefield mastery of information and communication technology is light-years ahead of any adversary. Everybody—from China’s President Xi Jinping to North Korea’s Kim Jong-un—knows that you don’t tweak this tiger’s tail: It can and will bite back very hard. The assassination of Osama bin Laden—a technological marvel, whatever its contestable legality—is remembered by everyone.

This is a country that drives hard bargains, whether when selling its real estate to foreigners or when organizing trade deals. For example, the Transatlantic Trade and Investment Partnership (T-TIP), proposed by President Barack Obama—dismissed by Trump as a weak patsy—is

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pete souza / white house photostream

Mixing With Foreigners: President Obama chairs a U.N. Security Council meeting in September 2009.

regarded in Europe as an appalling attempted one-way exercise of U.S. power. U.S. negotiators have succeeded in insisting that Europe lower its environmental regulations to U.S. standards in the name of “regulatory convergence” and that it open up parts of its public sector to de facto privatization by U.S. multinationals (with their interests promoted and protected by Europeans courts), in return for not very much—a slight lowering of U.S. tariffs. What does Trump think he can achieve instead? For Europe to drop all ambitions to protect its environment and to give the United States unqualified access to its public and health services?

The America of the 1940s and 1950s has disappeared forever. Nothing is going to bring it back—not even trying to refashion the international trade system so that all plant closures are in any country but the United States and all the employment gains are at home.

Trump plays with fire. The same forces that brought him to power in the United States are at work elsewhere.

All around the globe, there are political forces that put the visceral forces of identity politics first, that want to insist that in some form their culture, their race, their being-ness, their blood contract with generations past and future is under threat from the current global system. It could be Marine Le Pen in France, leader of the right-wing National

Front and a genuine contender for the French presidency in 2017, thundering about the uniqueness of La France and the need to exit the EU, or Indian Prime Minister Narendra Modi insisting on the unique and sacred traditions of the Hindu. Everywhere, peoples and electorates that are suffering stagnating real incomes and growing inequality feel they are victims of how the world order is structured. They want leaders who put them first. When Italian Prime Minister Matteo Renzi lost the referendum on constitutional reform in early December, Matteo Salvini, leader of the right-wing Northern Leagues (who want Italy to leave the euro and even the EU), heaped praise on his three heroes—Putin, Trump, and Le Pen—who challenge the global political establishment’s attempts at multilateral cooperation.

It is this same detestation of the liberal global system that has helped fuel Islamist terrorism. The culture and attitudes that have underpinned the global institutional framework, and its readiness to accept the asymmetry of the global bargain with the United States, are everywhere fraying. What the world needs desperately—and what Obama, under such heavy fire from the Republican right, provided—is for the United States not to attempt to play the same dark game. The anchor country has to anchor the system, and reform the system where reform is needed.

Instead, the United States now threatens to destroy it.

Winter 2017 The American Prospect 47

Imports (Where Are The Exports?) A cargo ship loaded with containers to be shipped abroad berths at the Port of Qingdao in Qingdao city, east China’s Shandong province, October 2016.

Trump may talk about befriending Putin, but he won’t want to watch TV pictures of Russian tanks rolling into Ukraine’s Kiev or the Baltic republics. He may get the Europeans to harden their promises to increase their defense budgets, but if he were to go beyond that and undermine NATO by qualifying the U.S. commitment unless everyone pays up, the downside is just too great. Nor will he or Defense Secretary–designate James Mattis pull the plug on the successful offensive against ISIS in Iraq. Trump will only let the United States get sucked into the maelstrom of the Middle East if he is confident of success: Dealmakers avoid failures. Nonetheless, world history is replete with catastrophic miscalculations, and the risk is that colossal misjudgments will be made, in particular with China, even as the whole international order becomes disordered.

My reading is that Trump will first be tempted by what seems to be the soft option of trade, where the downsides of unilateral action appear very limited and

48 WWW.Prospect.org Winter 2017

the upsides (if you are blind to risk) are apparently enormous. After all, this is what his “movement” wanted above anything else. No more plants moving abroad. No more closures because of cheap imports. No more sales of great companies to foreigners. No more stagnating blue-collar wages. No more illegal immigration. It may be that there are jobs and great prospects aplenty, driven by global trade, in the burgeoning tech and service sectors of big U.S. cities (which in any case vote Democrat), but those in his “movement” don’t care. They are hurting and nobody has taken decisive action to help them. Whatever else, Trump intends to change that. It is where his presidency can and will be decisively different.

But the risks are immense and the ensuing rupture will be a paradigm shift. For 70 years, the open rules–based global trading system has been the quintessential expression of the international framework underwritten by the United States (and Great Britain). The two countries have spearheaded successive rounds of tariff cuts and multilateral trade deals and stood by the General Agreement on Tariffs and Trade and its successor, the WTO. They have cut regional trade bargains, jointly promoted the European single market with the U.K. joining the EU and, above all, kept their markets open.

Trade is not fashionable to defend on either the right or the left these days, but it has brought huge national and international benefits, including an avalanche of inward direct investment for both the United States and the U.K., powerful international financial and business-service sectors, rising global living standards, and the economic and democratic transformation of Asia. True, China and Germany have, with their well-developed export sectors, over decades taken advantage of the system to run structural trade surpluses and have refused to accept that they are imperiling the system. But solve that within the rules—it is no reason to blow the whole framework up.

What is wrong with NAFTA , for example, is not the trade it promotes: It is that it has been unaccompanied by any policy to support U.S. wages, U.S. trade unions, or U.S. jobs. Policymakers at the state and federal levels have for too long not acted in any concerted way to spread the benefits of globalization.

Decades of consistent manufacturing trade deficits have exacted a cruel toll, and it has been voters at the receiving end who swung the election for Trump, even though he lost the overall popular vote by two million against a blemished candidate. After all, it was Pennsylvania, Michigan, and Wisconsin, with their tiny 100,000-vote margin, that gave Trump the Electoral College votes for victory. He might be a billionaire, but he styles himself

imaginechina via ap images

The open question is how much of Trump’s embrace of strongmen and his America-first, bomb-the-shit-out-oftroublesome-enemies approach will survive into office. In his 1987 book, he argues that the great deal-maker looks after the downside, and then uses all the leverage available to maximize the upside. The hope, perhaps wishful, is that when it comes to defense and security issues, Trump will be much more cautious than his campaign rhetoric suggests.

The downsides are very obvious, as hard analysis by the U.S. defense and security establishment will make clear.

What’s not clear is whether Trump will listen.

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a “blue-collar billionaire.” Blue-collar (post-)industrial workers don’t benefit from free trade and immigration, as he has consistently said for 18 months, challenging the Republican mainstream, who remain free-traders. Now he intends to deliver. His flight to Indiana to stop Carrier from moving some 800 jobs to Mexico—for a cool $7 million—days before we learned that unemployment has fallen to its lowest level in ten years is a harbinger of the self-defeating priorities that lie ahead.

Deporting undocumented immigrants and building the wall on the Mexican border—in effect an extension of what Obama was already doing—will be of symbolic importance. But it is destroying rather than refining the world’s trade arrangements, and thus violently disrupting the associated flows of goods and finance, where the impact could be the most destructive and far-reaching. The Trans-Pacific Partnership (TPP) is already dead. Thirty-five percent tariffs are promised on Mexican imports, in violation of WTO rules. The remaining 20 trade agreements the United States has signed are to be reviewed or abrogated.

Cumulatively, the impact will be devastating, killing multilateralism by exposing the already enfeebled WTO as helpless, inciting Chinese and Mexican trade retaliation, and destabilizing the entire global system of trade and finance.

The most profound risk of economic warfare is with

China. Beijing is to be named a currency violator within Trump’s first 100 days in office, allowing the unilateral imposition of across-the-board tariffs of up to 45 percent.

In Trump’s eyes, China is a threatening behemoth that has grown into a threatening superpower by manipulating the system. It needs to be confronted to mend its ways, beginning with tariffs. The truth is much more complicated.

The United States cannot wish China away, nor can it wish China to stay poor. It surely wants a collaborative rather than a competitive relationship, and it also wants to support China’s transition from a communist one-party state to a multi-party democracy that supports the rule of law at home and abroad. China, despite its phenomenal economic development, remains beset by contradictions.

The ruling Communist Party is losing legitimacy. Corruption is rife. Although enormously ambitious, Chinese capitalism is hobbled by the intrusion of the party into every nook and cranny of Chinese life. The government, unable to raise taxes for fear of backlash, spends and becomes ever more indebted. Chinese debt-to- GDP ratios are similar to those in Britain and Japan before their financial systems collapsed: Chinese banks carry vast loan impairments that if ever accurately accounted would bankrupt them.

The whole apparatus is set at best for a root and branch overhaul and at worst for an implosion.

U.S. policy to date has been wise: patient containment,

and not allowing China to win a propaganda war over soft power but instead waiting for weaknesses to manifest themselves. What the United States should not do is provide a cartoon enemy for the Chinese government, giving China an excuse for bellicose behavior in Asia, or, more subtly, allow China to define itself as one of the good guys in trade and climate change.

Trump is walking straight into the trap. The TPP was only a limited counterweight to China’s trade leadership in the Pacific; now China has even freer rein. By threatening not to honor the United States’ signature to the Paris climate change accord, he allows China to position itself as the friend of the planet. By labeling China a currency manipulator and unilaterally raising tariffs, he damages U.S. users of Chinese products, undermines the legal framework for trade, and offers China the enemy it needs to unite behind.

The policies also set in motion a dangerous dynamic. There is an element in the Chinese government that believes the country is encircled by U.S. military power.

Suppose China invaded Taiwan, or demanded concessions that Taiwan could not make? Taiwan is in China’s sphere of influence, as Crimea was in Russia’s. How would Trump react? With a nuclear attack? A wise president would never get his country into such a situation. But Trump is anything but wise.

The same dynamic operates in Europe. The U.S. interest is to keep the EU together and to support NATO. Being the inspiration for those ultra-right-wing nativist forces, growing in support across the continent, that want to break up the EU and befriend Putin is not wise politics.

If the hegemonic power insists that it is not interested in multilateral governance but rather in a series of one-sided trade bargains, nationalist and populist movements in the EU—as around the rest of the globe—will take their cue from the United States. Germany still wants to rally behind an open EU, but France under a President François Fillon or a President Le Pen will want to play the same game as Trump. So will the countries in Eastern Europe.

Putin’s Russia will exploit whatever openings are available to cement greater Russia. The EU’s disintegration, with incalculable consequences for the euro, global trade, and finance, is not impossible. It is truly bizarre that the big winner of Trump’s nationalist victory could be Putin.

There was an emergent global society, albeit with its dark side of left-behind communities and bitter inequalities.

Their grievances could and should have been addressed.

Instead, Trump—if we are to believe what he says—is set to lead the world into trade war, stagnation, growing nationalism, an upending of 70 years of the trans-Atlantic alliance, and perhaps even military conflict. This is an election that could change the world.

The trouble with deals like NAFTA is not the trade, but the

failure to

promote U.S. wages, unions, or jobs.

Will Hutton is principal of Hertford College at Oxford University, chair of the Big Innovation Centre Steering Committee, and a regular columnist for The Observer, where he was formerly editor. His books include The State We’re In, The Writing on the Wall, How Good We Can Be, and A Declaration of Interdependence.

Winter 2017 The American Prospect 49

Trump Versus the

Constitution The rule of law is only as secure as those who uphold the law. With both the Justice Department and the high court in opportunistic hands, can constitutional democracy hold?

50 WWW.Prospect.org Winter 2017

Justice at Risk

Trump’s nominee to succeed Scalia will restore a right-wing majority. One additional Trump appointee could undo rights established 50 years ago and more.

By Erwin Chemerins ky

m a r y s c h wa l m / a p i m a g e s

W

ill it be possible to protect the Supreme Court from Donald Trump’s presidency?

Unfortunately, the answer to this question is not encouraging. Even optimistically assuming that Trump is a one-term president, he has the chance to reshape the federal judiciary for decades. His appointees to the bench are unlikely to find his policies to be unconstitutional. In fact, many of his frightening proposals would be difficult for any court to strike down.

Thus it will be crucial to fight against the worst Trump nominees for the courts, even if blocking them may not be possible, and to use every available means to mobilize people to oppose the worst policies, even if stopping them often will prove impossible. We must hope that a successful coalition can be built with the relatively few moderate Republicans in Congress. At the very least, this can provide a foundation for effective campaigns in 2018 and 2020.

The place to begin is with the late Justice Antonin Scalia’s seat. Democrats are right to be furious that the Republicans acted in an unprecedented manner in refusing to hold hearings or a vote on the nomination of Chief Appellate Judge Merrick Garland. This was the 25th time in American history that a vacancy occurred during the last year of a president’s term. In 21 of the 24 prior instances, the Senate confirmed the nominees, and in the other three, the Senate refused to approve. This time, the Senate did nothing at all, and there was nothing that President Barack Obama or Senate Democrats could do about it.

But the long-term cost of replacing Scalia with a staunch conservative—and everyone on Trump’s list of 21 prospective Supreme Court nominees is just that—cannot be overstated. Major ideological shifts on the Supreme Court are rare. The Court became very conservative by the 1880s and remained that way until 1936, striking down more than 200 progressive laws, such as those limiting child labor and imposing minimum wages and maximum hours in the workplace.

From the late 1930s through 1969, a majority of the justices were appointed by Democratic presidents. Especially under the leadership of Chief Justice Earl Warren, though a Republican, the Court struck down laws requiring racial segregation, applied the Bill of Rights to state and local governments, and greatly expanded voting rights.

From 1970 until February 13, 2016, when Scalia died, there always have been at least five and as many as eight justices appointed by Republican presidents. Today, there are four justices appointed by Republicans and four justices appointed by Democrats. Replacing Scalia with a conservative will restore the Court to the same ideological balance that it had before his death.

Keeping this ideological balance has real costs. Consider some examples: Campaign Finance. Citizens United v. Federal Election Commission, in 2010, held that corporations have a First Amendment right to spend unlimited amounts of money from their corporate treasuries to get candidates elected or defeated. The case was decided by a 5–4 margin, with Scalia in the majority. Replacing him with Merrick Garland or a Democratic nominee would have meant a realistic possibility of five votes to overrule Citizens United. Hillary Clinton repeatedly said that was her goal in nominating justices for the Supreme Court.

Large expenditures by rich individuals and corporations on behalf of candidates always raise the appearance of government officials beholden to those who spent the money to get them elected. The Court not only could have overruled Citizens United, but could have reconsidered the earlier holdings that equated money with speech and allowed unlimited election expenditures by the rich. Scalia’s replacement could well join the remaining four justices from the Citizens United majority in striking down other campaign-finance restrictions, such as the limits on “soft money” spent by political parties and restrictions on contributions to candidates by corporations and unions.

Unions. It now seems inevitable that the Supreme Court

Winter 2017 The American Prospect 51

will deal a severe blow to unions by holding that non-union members cannot be required to pay the share of dues that supports the union’s collective-bargaining activities. In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union, but the Court also held that non-union members can be required to pay the portion of union dues that covers its collective-bargaining activities. The Court explained that non-members benefit from collective bargaining in their wages, hours, and working conditions.

They should not be free riders. The Court said, though, that non-union members cannot be required to pay the share of the union dues that go to support the political activities of the unions; that would be impermissible compelled speech in violation of the First Amendment.

In two recent cases, in 2012 and 2014, the five conservative justices then on the Court—Chief Justice John Roberts and Associate Justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito—strongly indicated a desire to overrule Abood and prevent public employees from being required to pay their “fair share” of union dues. A case, Friedrichs v. California Teachers Association, was then filed to provide a vehicle for that outcome, and after the oral arguments on January 11, 2016, there seemed little doubt that the Court was poised to overrule Abood. The effect of this would be to make “right to work” (without paying union dues) a

52 WWW.Prospect.org Winter 2017

constitutional requirement for public employees’ unions.

There would be a substantial decrease in union revenues, union membership, and union political influence.

Scalia died just two days after oral arguments, before the Court issued its decision. The justices later announced that they were deadlocked 4–4, which means that Abood remains the law. But with Scalia to be replaced by a conservative, overruling Abood seems a certainty.

Guns. Few issues so closely correspond to ideology and party affiliation as the meaning of the Second Amendment.

Until 2008, the Supreme Court never had invalidated any law for violating the Second Amendment. The Court always had ruled that the Second Amendment was about a right to have guns for the purpose of militia service. But in District of Columbia v. Heller that year, the Court, in a 5–4 decision, struck down a 32-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote for the Court, joined by Roberts, Kennedy, Thomas, and Alito. Two years later, in McDonald v. City of Chicago, the same five justices were the majority in a 5–4 decision holding that the Second Amendment is a fundamental right that applies to state and local laws as well. These are the only cases in all of American history to invalidate laws for violating the Second Amendment.

Without Scalia, the Court was split 4–4 on the meaning of the Second Amendment. The appointment of Garland or

bill cl ark / cq roll c all via ap images

The Still Empty Chair Of The Late Antonin Scalia: All 24 nominees to the Court that presidents sent to the Senate in their last year in office received a vote—until Republicans blocked a vote on Merrick Garland.

Trump

& the Constitution of a Clinton nominee would have meant the Court would have been unlikely to extend gun rights and very well might have overruled Heller and McDonald. Replacing Scalia with a conservative means a Court likely to strike down many other laws regulating firearms.

Separation of Church and State. Views on the Establishment Clause, too, very much track political party ideology. Conservatives interpret this provision narrowly as only prohibiting the government from establishing a church or coercing religious participation. Liberals see the Establishment Clause, in the words of Thomas Jefferson, as creating a wall between church and state.

This ideological split was reflected in the Court’s most recent decision on the Establishment Clause, Town of Greece v. Galloway (2014). For an 11-year period, the town board of Greece (a town of roughly 100,000 people outside Rochester, New York) invited, every month, almost without exception, a Christian clergy member to deliver a prayer before its meetings. The prayers usually were explicitly Christian in their content. In a 5–4 decision, the Court rejected an Establishment Clause challenge to the town’s practice, with Kennedy writing the Court’s opinion (joined

by Roberts, Scalia, Thomas, and Alito), while Elena Kagan wrote the dissent (joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor).

Replacing Scalia with Garland or a Clinton nominee would have meant five justices in favor of enforcing the separation of church and state. But when the Trump justice joins the bench, there again will be a majority to allow much more in the way of prayer at public schools and government events, religious symbols on government property, and government aid to parochial schools for religious instruction. If Trump carries out his campaign promise to have a registry of Muslims, a Court that has found few violations of the Establishment Clause could find a Muslim registry constitutional.

Access to the Courts. In a series of ideologically divided 5–4 decisions, with Scalia in the majority, the Supreme Court in recent years has greatly protected businesses at the expense of injured consumers and employees.

The Court, for example, has ruled that clauses in worker and customer contracts that require arbitration must be enforced and can be used to keep those with valid claims from suing in court. Similarly, the Court has significantly restricted the ability of those hurt to bring class-action suits. When a large number of people each suffer a small injury by a major corporation, a class-action suit is often the only affordable way those people can seek a remedy.

Replacing Scalia with a Democratic appointee would have shifted this balance. The Roberts Court, almost always through 5–4 rulings, has been the most pro-business Court since the mid-1930s. Trump’s ability to replace

Scalia poetends even stricter limits on access to the courts, especially to sue businesses.

Executive Power: It is difficult to predict how the Supreme Court, with a Trump appointee replacing Scalia, would rule if there were challenges to President Trump’s exercises of executive power; much would depend on his actions and their context. It shouldn’t be assumed that Trump’s actions would be rubber-stamped, even with a majority of the justices appointed by Republican presidents.

In 1974, the Supreme Court unanimously ruled against President Richard Nixon’s Watergate-related assertion of executive privilege. Three Nixon appointees—Warren Burger, Harry Blackmun, and Lewis Powell—were part of the unanimous decision. Chief Justice Roberts, who seems quite concerned about the image of the Court, is likely to balk at it being perceived as a tool of any presidency. But the Court has had a mixed record of standing up to abuses of presidential power. During World War II, the Court upheld the internment of Japanese Americans from the West Coast and more recently ruled that the president could detain even United States citizens as enemy combatants.

These, of course, are all illustrations of the costs of keeping the ideological balance that existed before February 13. But what also must not be forgotten is the opportunity that was lost on November 8. A fifth justice appointed by a Democratic president—and the first Democratic majority on the Court since 1971—could have meant a majority that would have declared the death penalty unconstitutional, that would have reversed decades of decisions limiting the ability of victims of constitutional violations to sue governments and government officials, and that would have advanced racial and economic justice, by finding, for instance, a constitutional right to an adequate education.

Such are the costs of having President Trump appoint Scalia’s replacement. Roberts, Thomas, and Alito are all in their 60s and easily could remain on the court for another two decades. Ginsburg, Kennedy, or Breyer are more likely to leave the bench during Trump’s presidency. Since 1960, the average age at which a Supreme Court justice has left the bench is 78. Ginsburg is 83, Kennedy 80, and Breyer 78.

How realistic is it to think all three of these justices still will be on the bench on January 20, 2021 (assuming Trump is a one-term president)?

If President Trump also gets to replace even one of these three justices, there will be a five-justice majority to move constitutional law in a far more conservative direction than it has been at any time since 1936. The probable consequences: Abortion. I have no doubt that given the opportunity, Roberts, Thomas, and Alito would vote to overrule Roe v. Wade and allow states to prohibit abortions. Each has voted to uphold every restriction on abortion that has come before him on the Court. There is not a word that

Ginsburg is 83, Kennedy 80, Breyer 78.

What are the

chances all three will still be on the bench in January 2021?

Winter 2017 The American Prospect 53

The dissents that Roberts, Alito, and Thomas wrote against the

same-sex marriage

decision

suggest they may seek to overturn it with two new sympathetic justices.

any of these justices ever has written or publicly spoken that would suggest the slightest hesitation about doing so.

If Trump gets to replace both Scalia and one other justice, there will be a majority to end a woman’s constitutional right to reproductive autonomy.

This will leave the issue of abortion to each state. Many states already have laws on the books prohibiting all or most abortions, which would take effect immediately if Roe is overruled. The Michigan Supreme Court, for example, has ruled that the state law banning abortions will be effective if the Supreme Court ends the constitutional protection for abortion rights.

In other states, like California and New York, abortion will remain legal. Women with resources will be able to travel to these states for safe abortions. But it is poor women and teenagers who again will be left with the cruel choice between a back-alley abortion or an unwanted child.

Affirmative Action. In 2007, Chief Justice Roberts wrote a stunning opinion that was joined by three other justices in Parents Involved in Community Schools v. Seattle School District No. 1, in which he said that the Constitution requires that government always act in a color-blind fashion and thus all forms of affirmative action are unconstitutional. The Court, 5–4, declared unconstitutional the ability of local school districts to consider race as one factor in assigning students to schools so as to achieve racial diversity. Roberts’s opinion was joined by Scalia, Thomas, and Alito. Kennedy was the fifth vote to strike down the school districts’ use of race, but he did not go along with Roberts’s condemnation of all uses of race to benefit minorities, remedy past discrimination, and enhance diversity.

Most recently, on June 23, 2016, the Supreme Court, in Fisher v. University of Texas, upheld the ability of colleges and universities to engage in affirmative action to benefit minorities and enhance diversity. Roberts, Thomas, and Alito vehemently dissented. Replacing Scalia with a conservative Trump appointee provides a fourth vote for their position, but if Trump gets to replace Ginsburg, Breyer, or Kennedy, that will end affirmative action in the United States.

Diversity in the classroom is essential. I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and in classes that are racially diverse. Discussing racial profiling by the police is a very different classroom conversation when there are African American and Latino men in the room who can talk powerfully about their experience of being stopped for driving while black or brown. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.

Nor are there realistic alternatives for achieving diversity without affirmative action. Because of historic and

54 WWW.Prospect.org Winter 2017

continuing inequalities in education, color-blindness in admissions would mean dramatic decreases in the number of African American and Latino students in colleges and universities across the country. Giving preferences based on social class fails to achieve racial diversity because there are many more poor whites than poor African Americans and Latinos, even if the percentage in poverty in the latter groups is larger.

Marriage Equality. On June 26, 2015, in Obergefell v.

Hodges, the Court ruled 5–4 that laws prohibiting samesex marriage infringe the right to marry and deny equal protection to gays and lesbians. As a result, there is marriage equality throughout the United States.

Donald Trump has said that the right to same-sex marriage is “already settled.” It is not clear why he believes a decision from the previous year is settled law, while a ruling from almost 44 years ago, Roe v. Wade, is not and should be overruled. It is tempting to think that our society has moved past the debate over marriage equality and has come to accept that gays and lesbians are entitled to equal treatment and equal dignity.

But one need only read the passionate dissents of Roberts, Thomas, and Alito in Obergefell to see that they likely would vote to overrule this decision in an instant. Roberts, in some ways the least reliable conservative of the three, for the first time in his years on the Court read a dissent from the bench in Obergefell, and it was angry in its tone and content. The result of overruling Obergefell would be that marriage equality is left to the states. Many will continue to allow gays and lesbians to marry, but some states surely will prohibit this.

Is this unduly bleak? It obviously is possible that Ginsburg, Breyer, and Kennedy all will remain healthy and still be on the Court at the end of the Trump presidency. Is it also possible that Trump nominees will not be so bad?

After all, sometimes justices don’t turn out as expected, like David Souter, who was appointed by President George H.W. Bush. Occasionally, justices even change once on the bench.

Unfortunately, this is wishful thinking. Souter had been a justice on the New Hampshire Supreme Court and briefly on the First Circuit Court of Appeals, where his opinions gave no indication of his ideology. Every president since the senior Bush—Democrat and Republican—has taken great care to appoint a justice with a clear and predictable ideology, precisely to ensure no more Souters. As a candidate, Trump released a list of 21 possible Supreme Court nominees. All are very conservative and there is little chance that any would be the next Souter.

Nor do many justices have major ideological transformations once on the Supreme Court. Scalia was just as conservative when he died on February 13 as when he joined the Court in 1986. Thurgood Marshall was as liberal when he resigned as when he joined. There are occasional exceptions.

Trump

cliff owen / ap images

& the Constitution Harry Blackmun was quite conservative when appointed

by President Richard Nixon, but left the Court as one of its most liberal members. Felix Frankfurter was perceived as a liberal when President Franklin Roosevelt put him on the bench and later became a very conservative justice. But these are the notable exceptions. Relatively few people have major ideological transformations in their 50s, 60s, or 70s.

There remains the possibility that Democrats could try to use the filibuster to block a far-right Trump nominee for the Supreme Court. Democrats voted to change Senate rules to eliminate the filibuster for lower federal court judges, but the 60-vote cloture requirement still pertains to Supreme Court nominations. In the past, Democrats have refrained from using the filibuster to keep conservatives off the Court.

There were 48 votes against Clarence Thomas and 42 against Samuel Alito, but in neither instance did the Democrats stage a filibuster. Perhaps the Republicans’ treatment of Merrick Garland might give Democrats the resolve to filibuster this time, especially in the event of a far-right nominee.

For example, one frequently mentioned name for the Scalia seat or a future vacancy is Federal Court of Appeals Judge William Pryor. Pryor has referred to Roe v. Wade as an “abomination” and said that abortion is murder and should be illegal even in cases of rape. He has said that gay sex should be prosecuted as a crime. When President George W. Bush nominated him for the United States Court of Appeals for the 11th Circuit, Democrats blocked his confirmation with a filibuster that ended when the Republicans threatened to change Senate rules to eliminate filibusters for judicial nominations. If Trump selects Pryor for the Supreme Court, Democratic senators should be poised to use the filibuster to block confirmation.

The problem, though, is that Senate Republicans, by majority vote, could change senate rules to eliminate the filibuster for Supreme Court nominations. Unless and until they do this, however, the filibuster remains the primary hope Democrats have for keeping very conservative individuals from being confirmed for the high court. The other alternative is to try to persuade a few moderate Republican senators that some nominees are just too far out of the mainstream. There aren’t many moderate Republicans in the Senate, though, and their willingness to buck their party on a Supreme Court nomination is uncertain at best.

The Trump presidency will also have a huge effect on the lower federal courts, of course, and there is no longer a filibuster option that could block confirmation of farright federal district court and court of appeals judges.

The Supreme Court last term decided only 63 cases after briefing and oral argument; the year before, it decided 66 cases. Lower courts obviously get the last word in the overwhelming majority of cases.

As of this writing, there were 117 vacancies on the lower

federal courts, which amounts to about 14 percent of all federal courts of appeals and district courts. Trump will be able to fill all of these vacancies on taking office. Other vacancies, of course, will open over the next four years. It is easy to imagine that by January 2021, 20 percent to 25 percent of all federal judges could be Trump appointees.

How likely is it that the federal courts can serve as a check on Donald Trump? With both the Senate and the House controlled by Republican majorities, the federal courts may be the sole remaining source of checks and balances. The courts’ capacity to play that role, however, depends on the specific Trump policies. Some can be blocked through the courts, but there are other actions that no courts, whether the

judges are liberal or conservative, are going to be able to stop.

In some instances, the courts have the clear ability to act.

For example, as a candidate, Trump declared that he wanted any American accused of terrorist activities to be imprisoned in Guantanamo and tried there in a military tribunal. This is clearly unconstitutional, as Article III of the Constitution requires that all trials “shall be held in the state where the said crimes shall have been committed.” Trump has said that he wants to bring back torture as a way of gaining information from terrorists. If this occurs, courts can and should declare this unconstitutional and a violation of international law, though the federal courts had a dismal record of doing so when the Bush administration implemented a policy of torture under the infamous John Yoo memos.

Similarly, if Trump goes forward with his plan to bar Muslims from the country, my hope is that federal courts will declare this unconstitutional as discrimination based on religion and a denial of equal protection. Never should the government be able to presume a person to be more

Justice In Waiting: Possible Scalia successor William Pryor, a federal appellate judge, has said that abortion should be illegal even in cases of rape, and that gay sex should be prosecuted as a crime.

Winter 2017 The American Prospect 55

State governments and courts can still

provide

protection

for rights that are lost at the federal level.

Erwin Chemerinsky is the dean and Raymond Pryke Professor of First Amendment Law at University of California, Irvine School of Law.

dangerous because of his or her religion or race or national origin. Here, too, though, the law is uncertain, as there are cases that give to the federal government broad power to decide who gets to enter the country. Still, such discrimination based on religion should be deemed beyond the bounds of constitutional acceptability.

But there are other areas where courts will be powerless to stop Trump. For instance, the Supreme Court has held that the federal courts cannot hear challenges to a president’s unilateral rescission of a treaty commitment.

In Goldwater v. Carter, in 1979, the Court rejected a challenge to President Jimmy Carter’s rescinding the United States’ treaty with Taiwan as part of his recognizing the People’s Republic of China. The Court said that a challenge to this by Arizona Senator Barry Goldwater was a “political question” and not for the courts to resolve. As a result, President George W. Bush was able to rescind the Anti-Ballistic Missile Treaty with Russia without any possibility of a judicial challenge. Thus Trump, if he wishes, could rescind the United States’ acceptance of the Paris Agreement on climate change, the deal with Iran, and most trade accords, and no court could prevent this.

Likewise, Trump can repeal any executive orders issued by a prior president. Trump already has made clear that he plans to rescind President Obama’s executive orders with regard to immigration, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), the latter of which has been blocked by a nationwide preliminary injunction issued by a federal district court. No court can stop Trump from rescinding these orders. Similarly, Trump can and likely will rescind the Obama executive order limiting greenhouse gas emissions from coal-fired power plants, a key aspect of complying with the Paris climate change agreement.

As a candidate, Trump repeatedly promised to deport those who are unlawfully in the United States. Control of immigration and deportation is very much vested in the executive branch of government. There are some requirements imposed by due process and administrative regulations, but basically the president has great control over how to enforce immigration law and whom to deport.

Changing regulations adopted by federal administrative agencies is more complicated, generally requiring those agencies to post notices of their proposed actions and allow time for comments. It will take some time for Trump to replace agency heads and have them go through the rule-making requirements. But a multitude of federal rules are sure to be changed. For instance, the Consumer Financial Protection Bureau, a target of business and conservatives, will likely rescind many of its regulations that were adopted to protect consumers.

Other actions that Trump promised will require con-

56 WWW.Prospect.org Winter 2017

gressional action. Repealing the Affordable Care Act will take an act of Congress. Building a wall across the Mexican border would require congressional approval and funding (and acquiring property and dealing with environmental rules if the wall is actually to be built—though Congress could repeal those rules or exempt the wall from complying with them).

All this paints a bleak picture of the next four years, but it also shapes an agenda for action. There must be mobilization to pressure Democratic senators to filibuster against far-right nominees to the Supreme Court. There must be concerted efforts, including by filibuster, to block undesirable federal legislation. When possible, Trump executive actions need to be challenged in the courts.

It will be important to look for areas where state governments can act in the absence of federal regulations.

Unless there is preemption by federal law, state and local governments can provide more rights and protections than provided by the federal government. For example, states—as California already has done—can adopt stricter restrictions on greenhouse gas emissions than required by federal statutes and regulations.

States can increase their minimum wages, even with a Republican Congress and a president unwilling to do so via federal law. States can prohibit employment discrimination on the basis of sexual orientation, even though the Republican Congress is unlikely to pass such a federal statute.

States can create their own health-care systems designed to ensure that virtually all within their borders have medical insurance coverage. After all, Obamacare was based on a similar approach adopted in Massachusetts. States could even adopt a single-payer health-care system. The difficulty, of course, will be fiscal, and in whether states can afford this in the absence of substantial federal aid.

If the Supreme Court becomes substantially more conservative because of the departure of Justices Ginsburg, Kennedy, or Breyer, state governments and state courts can provide protection for the rights that are lost at the federal level. States could protect the right to abortion if Roe v. Wade is overturned and could ensure marriage equality if Obergefell v. Hodges is overruled. Of course, this would mean that the fight for these basic rights would have to be fought in every state, and in many, the battle almost surely would be lost.

We thus must be prepared to mobilize and organize opposition to the right-wing Trump nominees for the cabinet, the Supreme Court, and the lower federal courts, and against undesirable legislative and administrative changes.

Ideally, this mobilization can block some harmful actions and can provide a basis for changing Congress in 2018, and the presidency in 2020. The alternative, eight years of a Trump presidency, is too frightening to imagine.

Trump

& the Constitution

Civil Rights Déjà Vu, Only Worse

Under George W. Bush, Republicans set about undermining the Civil Rights Division of the Justice Department.

Expect a more devastating assault on the division under Trump.

By Samuel R. Bagens t o s

I

n my first job as a practicing lawyer, I served from 1994 to 1997 as a career attorney in the Civil Rights Division of the U.S. Department of Justice. The division, staffed by hundreds of committed lawyers and other professionals, has long played a key role in making good on our nation’s promise of equality under the law.

Established in 1957, it was at the center of the civil-rights struggle of the 1960s. Its attorneys had a major hand in drafting, defending, and enforcing the 1964 Civil Rights Act and the 1965 Voting Rights Act, and its cases successfully desegregated schools and neighborhoods throughout the United States. The Civil Rights Division has always represented the best of what government can do.

At the beginning of the Obama administration, I returned to the division as part of the leadership team assembled by Tom Perez, who was assistant attorney general at the time. George W. Bush’s administration had taken its toll on the division’s staff. Although some great lawyers and other professionals had continued to work there, the department’s top leadership under Bush had abused and demoralized them. During the first six months of my job, much of the work was best described as trauma counseling.

At staff meetings and discussions of pending cases, lawyers would break down, suddenly remembering horrible things that the Bush folks had said or done.

Of course, not all the longtime staff had stuck it out through the Bush years. A large proportion of the attorneys in the division, including about two-thirds of those in the Voting Section, had departed. The departing lawyers were disproportionately those who had between 7 and 15 years of experience, just the people the division counts on most to lead trial teams and handle the most complex and sensitive issues.

When career lawyers left during the Bush administration, three sorts of people replaced them. One group consisted of good lawyers who cared about civil rights. These were the kind of attorneys whom the division might have hired at any time—and there might have been more of them

if the Bush appointees had not tried to avoid hiring lawyers who worked with civil-rights groups. A second group was made up of undistinguished lawyers from partisan Republican networks, who had shown no commitment to civil rights but sought a steady job in the career civil service. The third group was the most threatening: rightwing true believers with an agenda to subvert the historic work of the division—an agenda many of them continued to pursue after Barack Obama took office. Some of these attorneys, such as Hans von Spakovsky and J. Christian Adams, eventually left the division and became outspoken critics of Obama’s civil-rights policies from perches in conservative media.

By the time Perez and his team were done, the Civil Rights Division was the most aggressive and effective civilrights law firm in the country—and perhaps the government’s most aggressive and effective enforcement agency.

The Democratic Congress played a central role. It gave the division money to hire new career lawyers, enabling us to recruit truly outstanding, experienced, and committed people. We also insisted that front-line supervisors apply rigorous standards to all their employees, which helped to get the best performance from everyone and encouraged poor performers to find something else to do. We brought in several new section chiefs who took on both longstanding and newly developing civil-rights issues.

Under Perez, the division pushed forward on as many issues as possible as quickly as possible. When he moved on to head the Department of Labor, his successors Jocelyn Samuels and Vanita Gupta—neither of whom served with Senate confirmation—built on his achievements.

The election of Donald Trump, I fear, will wipe out all those achievements. Trump’s announcement of Alabama Senator Jeff Sessions as his choice for attorney general sends an especially strong signal about the new administration’s intentions. Sessions first came to public notice in the 1980s as a young Reagan-appointed U.S. attorney in Alabama, when he criminally prosecuted three prominent

Winter 2017 The American Prospect 57

Expect the Civil Rights Division now to

bring new

lawsuits that will themselves be designed to suppress the vote.

local voting-rights activists for voter fraud—only to see a jury acquit the activists in a matter of hours. Although Reagan nominated Sessions for a federal judgeship, the Republican-controlled Senate voted down his nomination after a number of Department of Justice lawyers—including one from the Civil Rights Division—testified about his use of racist language with his co-workers. Sessions has attracted national attention in recent years for his extreme anti-immigration positions.

Here are the areas in which civil-rights advocates should have the most concern about a Trump/Sessions Justice Department: Personnel and Leadership. Many of the Bush appointees to leadership positions in the Civil Rights Division were notable for both their hostility to the division’s work and their personal nastiness. Brad Schlozman, principal deputy assistant attorney general, was the subject of a scathing report from the department’s Office of the Inspector General and Office of Professional Responsibility, but he was far from the only one to do enormous damage to the division’s work and morale. The Bush administration, however, did hire some decent senior staff committed to the division’s mission—notably, Wan Kim and Lisa Krigsten— and those appointees helped trim some of the administration’s worst excesses. I expect none of that decency in the Trump administration. The safe bet is that the people Trump and Sessions put in leadership positions within the division will be cut from the Schlozman mold. Many of them are likely to be chosen from the group of right-wing true believers who were hired into the division during the Bush administration and later became outspoken critics of President Obama. That development will, once again, drive away committed career attorneys.

Voting Rights. After the Supreme Court’s 2013 Shelby County decision cutting the heart from the Voting Rights Act, states formerly covered by the statute’s preclearance requirement initiated a wave of new vote-suppression measures. Other states also adopted voting restrictions in advance of the 2016 election. The Civil Rights Division responded with an aggressive program of lawsuits that limited the worst abuses, even if these lawsuits were not always successful.

I expect the efforts to attack voter suppression to end in the Trump administration and the division instead to bring new lawsuits that will themselves be designed to suppress the vote. A provision of the National Voter Registration Act (commonly known as the Motor Voter law) requires states to maintain up-to-date voting rolls.

Many conservative commentators—including leading right-wing voices on voting issues like Adams and von Spakovsky—believe that the voting rolls in many jurisdictions fail to comply with that provision because they

58 WWW.Prospect.org Winter 2017

contain people who died, moved out of the jurisdiction, or otherwise are not eligible voters. I expect the Trump Civil Rights Division to bring suits under that provision in places with large minority, youth, or other Democraticleaning populations. The goal of these lawsuits will be to trim the voting rolls.

The division is also likely to turn toward enforcement of the rights of military voters—a perfectly good cause, but not one that should be pursued at the expense of enforcing the rights of minority voters. And if the Trump administration can find a case where African Americans even arguably stopped whites from voting, they will throw massive resources into proving such a case. A long effort by the Bush administration netted one case of that kind, in Noxubee County, Mississippi, which they pursued while letting many real vote-suppression cases go by the wayside.

Police Misconduct. Since 1994, the Civil Rights Division has had authority to sue police departments that engage in a “pattern and practice” of violating constitutional rights. Although the division took some important first steps in using that authority during the Clinton administration, the authority lay largely dormant during the Bush years. The Obama administration, by contrast, aggressively used the pattern-or-practice statute to reform police departments, and it did so even before the Black Lives Matter movement began. The division initiated investigations that were unprecedented in their number and scope; it entered into major consent decrees to transform law enforcement agencies in cities such as New Orleans, Seattle, Cleveland, and Ferguson, Missouri, and it filed contested litigation in Maricopa County, Arizona, among other places. These decrees addressed such matters as the use of excessive force, racial profiling, and the failure to protect victims of gender- and LGBT-based violence. In the past couple of years, the division has expanded its work to target practices that entrench economic inequality in the criminal justice system.

We can expect a Trump administration to seek to overturn this legacy. On the campaign trail, Trump blamed President Obama’s criticism of police misconduct for encouraging what Trump characterized as a “war on police.” The division’s new leadership will probably not drop the existing police consent decrees right away, but it will not enforce them vigorously. As soon as the courts allow, the division will likely allow police departments to get out from under the decrees, and it is unlikely to enter new ones. This will be a major loss to the efforts to reform American policing. Because of complex procedural doctrines created by the Supreme Court, private litigants are in no position to bring pattern-and-practice cases of this type—only the government can do so. Without an aggres-

Trump

jeff rober son / ap images

& the Constitution sive Civil Rights Division, the key tool of litigation-induced reform will be unavailable. And we can anticipate that the division will shut down its efforts to address economic inequalities in this area.

Fair Housing. Donald Trump has personal experience with the division’s enforcement of the Fair Housing Act—as a defendant in a major case challenging racial discrimination in Trump-owned apartment properties in the 1970s. On the campaign trail, Trump opposed the Obama administration’s steps to revitalize fair-housing enforcement.

I expect Trump’s opposition to have a major impact on the division’s work in the housing area.

The division will continue to do small-bore fair-housing work, thanks to amendments that Democrats added to the Fair Housing Act in 1988 that limit prosecutorial discretion and require the Department of Justice to bring cases on behalf of individual victims of discrimination in many circumstances. (The amendments, passed by a Democratic Congress, were a response to then–Assistant Attorney General William Bradford Reynolds’s gutting of civil-rights enforcement.) But don’t expect the Trump administration to bring systemic fair-housing cases, like the one against Trump in the 1970s, or the ones that resulted in hundreds of millions of dollars’ worth of settlements in fair lending cases arising out of the foreclosure crisis. The lawyers now assigned to those cases will likely be reassigned to other work performed by the Division’s Housing Section.

In the Bush administration, a shift in priorities away from fair-housing cases led to an increased emphasis on bringing cases under the Religious Land Use and Institutionalized Persons Act to challenge local decisions to deny churches, mosques, and synagogues zoning permits to expand their buildings and parking lots. Expect a similar shift in the Trump administration, though intervention on behalf of mosques does not seem likely to be a high priority.

Hate Crimes. During the Obama administration, the division has prosecuted record numbers of hate crimes.

In the first year of his administration, Obama signed the Shepard-Byrd Hate Crimes Prevention Act, which significantly expanded the Civil Rights Division’s authority to prosecute these offenses.

Hate-crimes enforcement has taken on new urgency with the spate of incidents that occurred in the immediate aftermath of Election Day. We ought to expect the division to continue to prosecute clear-cut hate crimes. But, given the political currents that supported the Trump campaign, we should also expect the prosecution numbers to go down.

And, given periodic attempts by the right-wing media to

treat incidents of black-on-white violence as hate crimes, look for the Trump administration to scour the country for such incidents to prosecute federally.

Education. In May 2016, on the 62nd anniversary of the Brown v. Board of Education decision, the Government Accountability Office reported that American public schools remain heavily segregated on the basis of race and class—and that the extent of segregation was increasing. Although Supreme Court decisions over the past four decades—starting with Milliken v. Bradley in 1974, and extending through the Roberts Court’s 2007 Parents Involved case—have thrown up significant obstacles to school integration, the Civil Rights Division has continued to pursue desegregation in an active docket of cases. The new administration can be expected to allow that work to wither on the vine. And we can likely say goodbye to the Obama administration’s nascent, but important, efforts to promote socioeconomic integration in schools.

The division, along with the Department of Educa-

Ending Federal Restraint: Police wearing riot gear point their weapons before arresting a man on August 11, 2014, in Ferguson, Missouri. The Civil Rights Division under Trump is unlikely to follow through on the transformation of policing undertaken by Obama in cities such as Ferguson.

Winter 2017 The American Prospect 59

Role Reversals: Cub Scouts and Boy Scouts wave rainbowcolored flags at the 41st annual Pride Parade in Seattle, two days after the U.S. Supreme Court legalized gay marriage nationwide in 2015. Under Jeff Sessions, the Civil Rights Division may not just abandon the defense of LGBT rights; it may take an affirmatively anti-LGBT-rights position.

Samuel R. Bagenstos is the Frank G. Millard Professor of Law at the University of Michigan.

rights enforcement, the division has protected the voting rights of language minorities. It has also taken a number of steps to ensure that those who speak little English have access to school, court, and other government services.

Given the anti-immigrant politics on which Trump relied during his campaign, I expect the administration to abandon this work.

LGBT Rights. The Obama administration has been aggressive in interpreting laws forbidding sex discrimination—including Title VII (which prohibits sex discrimination in employment), Title IX (which prohibits sex discrimination in education), and the Fair Housing Act (which prohibits sex discrimination in the sale or rental of housing)—as embracing a prohibition on discrimination against gays, lesbians, and transgender individuals.

This interpretation has met with some success in the courts, though it faces a major test in Gloucester County School Board v. G.G., currently pending before the Supreme Court. In the G.G. case, a lower court applied

60 WWW.Prospect.org Winter 2017

the Obama administration’s interpretation and enforced the right of a transgender boy to use the boy’s bathroom at his school.

The Court will hear argument in the G.G. case after Inauguration Day. Because the protection of transgender students was a flashpoint in the campaign, Trump’s Justice Department may not take the same position as the Obama administration in G.G. Even beyond that case, there is good reason to worry that the new administration will more generally abandon the Obama administration’s pro-LGBTrights interpretations of the civil-rights laws—whether before or after the Court decides G.G. Even worse, there is a substantial prospect that the Civil Rights Division will take an affirmatively anti-LGBT-rights position and intervene to make religious-freedom or free-speech arguments on behalf of the defendants in LGBT discrimination cases brought under state laws.

Disability Rights. Disability rights have historically been bipartisan. George H.W. Bush has frequently declared the 1990 Americans with Disabilities Act (which he shepherded through Congress and signed as president) one of his proudest achievements. When the courts read the ADA unduly narrowly, the Pelosi Congress passed a new law overturning those interpretations, and President George W. Bush proudly signed the law in 2008. But one can expect a Trump Civil Rights Division to be less aggressive in enforcing the ADA . The division may well shut down the Obama administration’s successful efforts to enforce the ADA’s integration mandate to ensure that states use their Medicaid dollars to create community services for people with disabilities. In the Obama administration, the division has been moving slowly—too slowly—to issue regulations governing the accessibility of the internet, but we can now expect those efforts to grind entirely to a halt. (Or, as some industry-friendly observers suggest, the division may issue regulations that impose minimal requirements on businesses that operate websites, thus preventing the courts from reading the ADA to embrace more robust protections.)

All told, we can expect a Trump Civil Rights Division to reverse a vast swath of the gains, both in management and in substance, that the division made under Obama. Can anyone take up the slack? Committed activists and lawyers outside the government will fight the good fight and win some battles, but the sad fact is that the Civil Rights Division is indispensable to effective civil-rights enforcement.

Over decades, the Supreme Court has chipped away at the tools for private plaintiffs to sue to enforce the civil-rights laws. State attorneys general have some authority, but they lack the resources of the federal government, and most lack the will. The election of President Trump will massively set back civil-rights enforcement for years to come.

el aine thompson / ap images

tion, has also done key work in recent years to reform school discipline to promote safe school environments while avoiding disparate racial impacts and cutting off the school-to-prison pipeline. These efforts have drawn sharp criticism from right-wing media. Expect the division to turn away from its focus on school discipline, and to turn its attention to claims of discrimination brought by religious groups who seek to use public school resources.

Rights of Language Minorities. The division has done lots of unsung work over the past few years in protecting the rights of Americans who speak languages other than English. Building on one of the few areas in which the Bush administration took significant positive steps in civil-

Trump And the

Economy Trump’s plans for the economy, like the man himself, are a mass of contradictions. The new president lives in his own post-fact world, but how long will it take for reality to bite?

The Folly of Trumponomics

It may produce a short-lived boom. Then, look out.

By Simon Johnson

D

onald Trump’s administration will implement large tax cuts and substantial financial deregulation. President Trump may also change U.S. policies on trade, although precisely what he will do is less clear—and the shift may be more rhetorical than real. Trump is also likely to substantially cut or privatize federal spending. To the extent that his policies add up to a coherent economic strategy, they are reminiscent of Ronald Reagan’s, but with an extra dose of cronyism and the wild card of economic nationalism.

Trump himself and several of his key appointees are also poster children for oligarchy and even kleptocracy—government operated to serve the business interests of elites, including top officials. The intermingling of business, family, and government as the Trump administration takes shape unfortunately parallels what I have observed in corrupt developing countries over the past 30 years, including during my time as chief economist for the International Monetary Fund.

Despite emerging contradictions between his presidency and who he purported to be during the campaign, President Trump is likely to please his supporters in the short run. His tax cuts, promoted by supporters for their supposed supplyside benefits, could provide a temporary Keynesian jolt to demand. His gestures on trade, like pressuring Carrier to keep jobs in Indiana, will strike a tough posture and save a very small number of jobs. But over time, Trump supporters—and the rest of the country—will become profoundly disappointed as economic security, opportunity, and prosperity are undermined for most Americans.

gerry broome / ap images

Taxing, Spending, and Obfuscating

Amid this muddle, one thing is clear. There will be a big tax cut for upper-income Americans—this is the implication of Trump’s pledges during the presidential campaign, and this is also what Senate and House Republicans want. Steven Mnuchin, the nominee for Treasury secretary, says there will be no reduction in the amount of tax actually paid by rich Americans—arguing there will also be a limit on the deductions they can take. But the math of Trump’s proposals is quite straightforward, and the result of the planned reductions in personal, corporate, capital gains, and inher-

itance taxes is that the rich will undoubtedly pay less.

In other words, we will re-run a version of the economic experiment previously conducted in the 1980s under Reagan and again under George W. Bush. James Kwak and I wrote a book, White House Burning, on this issue, and there is really very little disagreement among careful analysts on what happened over the past 30 years. Lower taxes on rich people led to higher post-tax income for them and not much by way of higher incomes for others; inequality went up. Despite supply-side claims, reduced revenues increased budget deficits, giving Republicans a pretext for deeper spending cuts. During the same time period, manufacturing jobs declined, the median wage stagnated, and the job market became increasingly polarized.

As for economic insecurity—an issue emphasized by Mr. Trump—this is about to get much worse. Health insurance will be stripped away and partly privatized at the behest of House Republicans, who also hope to turn Medicare into some form of voucher program—effectively reducing benefits for older and lower-income Americans. They may face some resistance from their colleagues in a closely divided Senate, but Medicare already has a (voluntary) voucher component, the so-called Medicare Advantage program, which enrolls about a third of Medicare recipients. To provide greater space for tax cuts, Medicaid and the Supplemental Nutrition Assistance Program (previously known as food stamps) will likely become some form of block grant (a preset transfer amount to state and local government)—which is really just a way to cut these forms of assistance to people in need (many of whom have jobs, but are paid very low wages).

It is literally impossible to have a rational conversation— either about the data or about what happened in our recent economic history—with some leading House Republicans.

Now this House Republican belief system appears likely to motivate and guide economic policy—Trump needs their support to pass legislation, and he is working closely with them, including Mike Pence, formerly a leading House Republican, as vice president, and Representative Tom Price, the nominee to be Secretary of Health and Human Services.

As for measuring potential loss of revenue from tax cuts, not to worry—the House Republicans have already

Winter 2017 The American Prospect 63

Watch Out for Even More Tax Breaks—For the Rich

How we squander resources through the tax code, and how that could get a lot worse in the age of Trump

By Jared Bernstein and Ben Spielberg

T

hink, if you will, about taxing and spending.

The former—taxing— occurs when the government levies some claim on your income. It could be a local sales tax on a tube of toothpaste, a Medicare or Social Security deduction from your paycheck,

or an income tax check to the federal IRS. Spending is what the government does with tax revenue. Local governments spend your property taxes on public schools; the feds finance social insurance, defense, the safety net, and so on.

Many people think that taxing and spending,

64 WWW.Prospect.org Winter 2017

while complementary, are entirely distinct.

Not so. There’s an important way in which the federal government spends through the tax code. The technical term is tax expenditures. These include tax credits, deductions, and exemptions. You can’t begin to understand the scope, the inequities, and some of the venerable benefits of our tax system without getting into these particular weeds. Moreover, in the age of Trump, we’re going to need to keep a very close eye on

in mind we are already in a recovery and the job creation numbers have been good for a long while (nearly 200,000 net new jobs per month since early 2010). And in recent weeks, stock prices have increased, but the yield on bonds has also jumped higher (up to 2.2 percent on the ten-year Treasury bond on November 15 and now around 2.4 percent; compared with 1.8 percent immediately before the election).

This is a big and unexpected move, signaling that investors are worried about the potential impact on inflation.

It has been a long time since we had significant inflation in the United States, and many people seem to have forgotten how unpopular it is. Ronald Reagan told Americans they should care about the “misery index”—the sum of inflation and unemployment. And inflation is almost always bad for people on lower incomes, including pensions (which will not be fully indexed to rising costs). Trump’s supporters will not be so delighted once the full implications of his tax cuts and other macroeconomic policies begin to sink in.

Any Trump boom could also be short-circuited by the deepening crisis in Europe, even without the added assault of Trump-style protectionism. With the fall of the Italian government and Italy on the verge of a banking crisis—on top of the UK’s Brexit (planning to leave the European Union), and the rise of far-right Marine Le Pen in France—the European Union and its elements are coming under increasing pressure.

Ironically, the instigators of Europe’s latest economic crisis are Trump-style populists—and they draw explicit inspiration from Trump’s political brand. But their success will weaken the European economy, and hurt the U.S. economy and Trump’s brand at home.

such provisions, which are almost certain to grow, and to grow even less equitable.

Tax expenditures reduce the amount of taxes owed based on some policy goal or preference. If you’re a homeowner, you probably deduct your mortgage interest from your tax bill. That’s a tax expenditure, one that diverted $75 billion from the coffers of the U.S. Treasury in 2016. If you get your health insurance through your job, the fact that its value doesn’t go into your tax base is another tax expenditure; in fact, it’s the largest single

one, amounting to $216 billion forgone this year.

The chart below compares the combined cost of the tax code’s individual and corporate tax expenditures with other government spending. Tax expenditures cost about $300 billion more than either of the major government healthcare programs (Medicare and Medicaid) or Social Security, and about as much as all federal discretionary spending on defense, other health-care programs, education and training programs, transportation sys-

chart data : (# 1 ) omb , his toric al table s 8 . 5 and 8 .7 , and analy ti c al per spec tive s table 14 . 2 ; (# 2 ) cong re s sional budg e t office

changed the rules to reflect so-called “dynamic scoring.”

The Tax Policy Center estimates that under Trump’s tax plan, “federal revenues would fall by $6.2 trillion over the first decade before accounting for added interest costs.

Including interest costs, the federal debt would rise by $7.2 trillion over the first decade and by $20.9 trillion by 2036.” But the official scoring by the Congressional Budget Office will likely show no such loss of revenue—because the Republican Congress has already mandated that tax cuts will stimulate economic growth by an enormous (and implausible) amount. The alternative (i.e., distorted) reality of Trump’s campaign rhetoric is about to show up also in the driest possible budget documents.

Watch carefully what happens on “infrastructure.” During the campaign, Trump seemed to support upgrading our national road, rail, and air transportation systems—and the need for renewal across the country goes much deeper.

But as more detailed plans become evident, it seems likely that the actual Trump infrastructure program will just be a cover story for tax credits and privatizations—not genuine public infrastructure.

Expect a very large increase in our budget deficit and national debt, exactly as was forecast by reputable analysts during the election campaign. This might provide some short-term stimulus to the economy, as my colleague Olivier Blanchard suggests. In that scenario, there are longer-term problems in the form of higher deficits and more debt. As Blanchard points out, inequality is very likely to increase.

And in light of what has happened since the election, it’s not entirely clear that economic growth will pick up—keep

Trump

& the Economy Financial Deregulation

House Republicans are dead set on repealing financial regulation—rolling back the rules to what they were before 2008. Excessive financial deregulation leads to a predictable cycle of boom-bust-bailout, in which rich people do very well, and millions of people lose their jobs, their homes, and their futures.

During the last crisis, presumptive Treasury Secretary Mnuchin bought IndyMac, a distressed bank, receiving a great deal of help from the government—and then sold it at a large profit. At the same time, millions of Americans lost everything in the housing crash and their appeals for assistance of any kind fell on deaf ears. In fact, appeals for the reasonable restructuring of loans made by IndyMac were apparently also turned down; this lender has a reputation as ruthless (and careless) in its foreclosure practices.

If the Treasury Department ends up being headed by someone who gains from economic volatility, how careful would officials really want to be? Trump himself spoke of the housing crisis as a great opportunity—for him, that is. Rich and powerful people often do well from extreme booms and busts; most Americans do not.

Deregulating finance is always sold with the claim that it will boost growth, and in the short run perhaps the headline numbers will improve—but only because we do not measure the economy with any regard for macroeconomic risk. If we had risk-adjusted employment and output (and corporate profits) during the George W. Bush years, we would have realized that economic expansion was based on unsustainable risk-taking in the financial

and Development Fund, a spending Tax expenditures vs. other major program that helps program expenditures, 2015 certain families Corporate Individual pay for child care.

Now consider the child-care tax credit. Both programs help families Tax Medicare Social NonDefense offset the cost of Expendi­ & Medi­ Security defense Discre­ tures caid Discre­ tionary child care. Why do tionary we have both, and what implications does that tems, diplomacy, science, have on policy and politics? and much more combined.

First, given the conservaIn fact, the distinction tive mantra of “spending between a tax expenditure bad, tax cuts good,” many and straight-up spending politicians in both major is sometimes meaningless. political parties are much Consider the Child Care $583 billion

$585 billion

$882 billion

$890 billion

$1.2 trillion

Tax Breaks Are Very Costly

sector—manifest in the crisis of September 2008 and the deepest recession since the Great Depression.

In the House Republican mantra, honed over six years of refusing to cooperate with President Barack Obama, financial deregulation did not contribute to the meltdown of 2008.

These congressional representatives fervently believe that growth has been slow because of a supposedly high burden of regulation on business—despite the fact that the United States is one of the easiest places in the world to do business.

In reality, growth has been slow in recent years precisely because the financial crisis was so severe—and deregulation will set us up for another crisis. The question is just how long this will take to become evident to voters.

On finance, as well as on taxes, Trump and the House Republicans are likely to work hard and effectively together—creating what will become a more extreme version of the unequal and unstable George W. Bush–era economy.

Expect consequences that are similar to what happened during and after the Bush regime.

Trade

There were some defects in the Trans-Pacific Partnership (TPP), as both presidential candidates discussed during the election campaign. But refusing to implement the TPP agreement or altering the North American Free Trade Agreement (NAFTA) is not likely to bring back manufacturing jobs—just as gutting the Environmental Protection Agency would not bring back coal.

There is a defensible version of economic nationalism, which includes investing in people (education and opportu-

more comfortable with tax expenditures than direct spending. But that ideological bargain leads to a lot of spending through the tax code that’s both wasteful and inequality-inducing. As Suzanne Mettler has shown in her book The Submerged State, it also denies government credit for the instances of good policy, since a tax break is experienced as a refund rather than as a direct government benefit.

The waste comes from subsidizing actions that would happen even without the subsidy. Wealthy people

the actual Trump infrastructure program will be a

cover story

for tax giveaways and privatizations, not genuine public infrastructure.

tax rate, say 25 percent, would save, and buy houses would only save $25 from and health care, without a tax break. And yet—and this the same deduction. The regressive result is shown in is the inequitable part—not the next figure: Half of the only do they get to take benefits of the ten largest tax deductions for these tax expenditures go to the activities, they get to take richest fifth of households. larger ones than lowerincome people. A rich individual who faces a top marShare of ten largest federal income tax 50.6% ginal income tax expenditures by income group, 2013 rate of 39.6 percent would save $39.60 on her tax bill with 18.2% 16.6% 13.3% a $100 deduction, 7.7% 10.1% for example, while an individual with a Bottom Second Third Fourth Top Top 20% 20% 20% 20% 20% 1% lower top marginal

Tax Code Spending Skews Up

Winter 2017 The American Prospect 65

At the heart of

what will

go wrong

with the Trump administration, in perception and reality, is the role of special interests.

nities), building public infrastructure, and working to ensure that new technology creates jobs. Transitioning to a lowercarbon and greener economy can create both jobs and exports.

But Trump’s strategy is very far from this. In the short run, Trump may score some points with his supporters by talking tough on trade, although his corporate allies are likely to reduce that to mostly rhetoric. The president is likely to have a number of high-profile photo ops, when he strong-arms (or pays) a few corporations to keep a small number of jobs in the United States.

The key part of reality missing from Trump’s vision is that manufacturing jobs have disappeared in recent decades primarily because of automation—not because of trade agreements or the supposedly high burden of taxation and regulation on business; again, the United States is one of the best and easiest places in the world to start and run a company.

The surge in imports from China in the early 2000s did have a negative impact on manufacturing, but this effect is hard to undo—and threatening a trade war (or talking on the phone with the president of Taiwan) will either have no significant effect or prove disruptive. Imposing tariffs on Chinese imports will result in retaliation; trade wars do not typically lead to higher growth or better jobs.

And one impact of Trump—a sharp appreciation of the dollar since his election—runs directly against what he wants to achieve. A stronger dollar means it is harder for firms to export from the United States, while imports become cheaper. The U.S. trade deficit (exports minus imports) will increase if the dollar remains at its current level.

If Trump’s fiscal policies push interest rates higher,

The mortgage interest and property tax deductions are two popular expenditures that have this regressive effect: 80 percent of total spending on these two deductions goes to households with incomes over $100,000.

Households with incomes over $200,000 receive four times as much support from the federal government as households with incomes below $20,000. It is in this way that our tax system not only fails to offset, but exacerbates market-driven income inequality.

Such tax breaks litter the code. There’s bonus depreciation (a provision that allows businesses to deduct the cost of business investments faster than those investments lose value in real life), tax deferral for multinationals on overseas profits, and “like-kind exchanges” that enable real-estate owners to avoid paying capital gains taxes, among many others. Tax breaks are especially notorious in the real-estate industry.

Hmm … a real-estate owner who taps into such loopholes to avoid tax liabil-

66 WWW.Prospect.org Winter 2017

ity …. That sounds familiar.

President-elect Donald Trump and his merry band of billionaires are all too familiar with tax expenditures and are likely to use them to great—and by “great,” we mean “terrible”—effect.

A perfect example is their infrastructure plan. Instead of the usual approach of allocating funds to pay for much-needed upkeep of our stock of public goods, they propose providing about $140 billion in tax credits for private infrastructure investments. Investors would shoulder only a $30 billion

as currently seems likely—either because of the market reaction or how the Federal Reserve feels compelled to respond—that will further strengthen the dollar and undermine manufacturing jobs in the United States.

Again, the question is how long it will take his supporters to notice that Trump oversold them on what he would do.

At some point, perhaps, this tips over into the perception that they—and everyone else—have actually been deceived.

Special Interests and Crony Capitalism

For now, Trump will retain some popularity, courtesy of a fiscal stimulus and economic nationalism. But over a longer period of time, reality will catch up with him. And at the heart of what will go wrong with the Trump administration—in perception and reality—is the role of special interests.

Candidate Trump made a big deal of wanting to “drain the swamp,” by which he meant reducing the power of special interests, including corporate lobbyists. Perhaps his highestprofile pledge in this regard was to introduce term limits for members of Congress—in fact, this was the first in a long list of commitments made in his Gettysburg speech on October 22, 2016. But one day after the election, Mitch McConnell, Republican leader in the Senate, said that there will be no such term limits. This takes the issue completely off the table.

On swamp-related issues more broadly, lobbyists were running Trump’s transition team, and the appointment process looks like a feeding frenzy for special interests, as they compete to get industry-friendly people into key positions and to advance their legislative agenda.

The bad news for the broader economy is that the Trump

burden, “but would receive all the profits,” as our colleagues at the Center on Budget and Policy Priorities have explained, “effectively privately owning and operating the projects and charging the public to use them.”

Since investors would only finance projects, like toll roads, with these spunoff user fees, such a plan would likely cause essential repairs to school facilities and interstate highways to fall by the wayside.

We expect the Trump administration to offer similarly bad tax-expenditure

ideas in their quest to repeal and replace the Affordable Care Act. They’re likely to turn to Health Savings Accounts (HSAs), a tool that, as health expert Edwin Park points out, offers “unprecedented tax sheltering benefits to high-income individuals.” In an HSA, people with high-deductible health plans can make taxdeductible contributions to their accounts, earnings can grow tax-free, and withdrawals to pay for health care are also tax-exempt.

Look for Team Trump to expand these amped-up

Trump

& the Economy circle could allocate to themselves tens of billions of dollars, through government contracts, insider trading, and other mechanisms. The U.S. Constitution cleverly creates an intricate set of checks and balances precisely to put constraints on executive authority. But with Republicans in control of the executive branch, the legislature, and much of the judiciary (including the Supreme Court), there will not be much by way of disclosure, let alone effective oversight.

Representative Jason Chaffetz, chair of the powerful House Committee on Oversight and Government Reform, says he will further investigate Hillary Clinton’s use of a private email server. How exactly that will help ensure good governance over the next four years is unclear. The potential self-dealing of President Trump, his family, and his colleagues will cry out for serious investigations, but there will be no congressional venue for that unless Democrats take back the House or the Senate in 2018.

The United States is a rich nation, with the most advanced economy, military, and technology the world has ever seen. We also have its most advanced oligarchy.

In the Trump iteration, special interests seem likely to focus a great deal of attention on enriching themselves and their friends—“the rules are for other people” seems likely to become the motto of this presidency.

Trump has already indicated that he may pursue foreign policy in ways that advance his (or his family’s) private business interests. And of course, Trump is famously proud of how he legally manipulates the bankruptcy system—a skill he shares with Wilbur Ross (incoming commerce secretary) and Steven Mnuchin (Treasury secretary).

tax shelters by raising the maximum annual contribution to HSAs and allowing people to apply HSAs not just to out-of-pocket costs (which are all that HSAs currently cover), but to premiums as well.

Progressive tax wonks tend to prefer credits over deductions, as credits directly reduce individual or corporate tax bills by a specific amount. A $100 credit is generally worth $100 both to people with a top marginal tax rate of 39.6 percent and to those with a top marginal rate of 25 percent. Yet

they, too, can be regressive.

A family with a tax liability of only $20 will only get $20 worth of benefit from a typical $100 tax credit, thus making such a credit more valuable to families with higher incomes than to lower-income people.

The exceptions to this rule are credits that are refundable, meaning that if the size of the credit exceeds a taxpayer’s tax liability, the taxpayer receives a check from the government for the balance. The Earned Income Tax Credit (EITC) and the Child Tax

None of these people inspire confidence in the outcomes for the broader economy. Most likely their policies will further enrich powerful insiders, cut effective worker earnings, and add little if anything to the productive economy.

All oligarchs always say the same thing—their projects are good for the country. And in the end, the outcomes are always identical: They have the yachts and the offshore accounts; everyone else gets nothing.

In Why Nations Fail, Daron Acemoglu and James Robinson documented the myriad ways in which powerful people around the world help themselves to economic riches and, along the way, undermine political institutions. There is often some short-term growth, seen in the headline numbers, but oligarch-centric economies are never inclusive— and lasting benefits always prove elusive. In fact, as those authors emphasize, oligarchic control is often a prelude to nations running into serious crisis and state failure.

If, by the time of his inauguration, Trump refuses to divest himself from his business interests—and if he continues to refuse to publish his tax returns (which would presumably show the full extent of his foreign relationships)—then we are just another profoundly oligarchic country, albeit with nuclear weapons.

What would be the U.S. role in the world if this happens? Probably we will have little sway. How can you lead other democracies when you are a laughingstock? Some other corrupt countries might want to cooperate, but this is worth very little. We are in the world of G-Zero. No one is in charge and there is chaos in many places. Only people who thrive on chaos will do well.

Credit (CTC), for instance, are effectively cash transfers that significantly reduce poverty—they lifted 9.8 million people out of poverty in 2015 and made 22 million more people less poor—while incentivizing work. These refundable credits could help even more people if policymakers strengthened the EITC for workers not raising children in the home and extended the CTC to the poorest families, especially those with young children.

Another refundable tax credit, the premium tax

credit from the Affordable Care Act, helped make health insurance more affordable for more than nine million Americans as of early 2016. When you hear warnings about how the repeal of Obamacare is going to lead to millions losing coverage, the loss of this credit is one reason (as is the repeal of the Medicaid expansion).

In sum: There’s taxing, there’s spending, and then there are tax expenditures.

For the most part, tax expenditures are inefficient, inequitable, opaque,

Simon Johnson is co-author of 13 Bankers: The Wall Street Takeover and the Next Financial Meltdown.

He is a professor at MIT’s Sloan School of Management and former chief economist at the International Monetary Fund.

Jared Bernstein is a senior fellow at the Center on Budget and Policy Priorities (CBPP). Ben Spielberg is a research associate with the CBPP, where he manages its Full Employment Project.

and vulnerable to specialinterest lobbying. The exception is refundable tax credits like the EITC, which are tantamount to direct income support for moderate-income, working Americans. (Guess which kind of tax expenditure is likely to increase under Trump?)

While spending through the tax code is not in every case problematic, the bulk of what goes on in that big, shady part of the code is wasteful and inequitable.

Unfortunately, in the age of Trump, that part is sure to grow.

Winter 2017 The American Prospect 67

Dismantling Dodd-Frank—And More

Candidate Trump promised to take on Wall Street.

As deregulator-in-chief, he will be Wall Street’s best friend.

By Dav id Day en

H

istory teaches us that financial regulations die from a thousand cuts rather than a signifying event. As Cornell University law professor Saule Omarova puts it, “Financial reform is like a big onion. The more layers you peel off, the harder you cry.”

For example, by the time the Gramm-Leach-Bliley law removed the Glass-Steagall firewall between commercial and investment banks in 1999, that separation was already effectively wiped out—by administrative waivers granted by regulators. The 1994 Riegle-Neal Act that formally allowed banks to open branches across state lines came after a decade of states altering rules to undermine local control of finance. Deregulation of mortgage rules that led to the housing bubble rolled out over a 20-year period, spanning Carter, Reagan, Bush, and Clinton. And even then, it took the George W. Bush administration’s laissezfaire supervision to really supercharge predatory lending.

So while Donald Trump, populist rhetoric notwithstanding, promised on the campaign trail and on his transition website to “dismantle” Dodd-Frank financial reform, he probably won’t do it in one shot. He won’t even have to do it through Congress. Here’s the likely blueprint.

The Dodd-Frank Act did not structurally alter the financial system, either by breaking up the big banks, or by restoring the Glass-Steagall wall between commercial and investment banking. But it did attempt to stabilize what failed in 2008 by using stronger oversight and adding stronger regulatory tools. It created the Consumer Financial Protection Bureau (CFPB), the first independent federal agency primarily focused on preventing consumer rip-offs. It instituted the Volcker Rule, a miniature version of Glass-Steagall that restricts depository banks from making many types of trades on their own accounts. It sent derivatives through central clearinghouses to increase transparency. It empowered regulators to more strongly supervise systemically significant financial institutions, and created an “orderly liquidation authority” for insolvent firms. Combined with international rules that increased

68 WWW.Prospect.org winter 2017

various equity requirements, Dodd-Frank patched several weak points in the current system.

However, because reformers lacked the votes to lock clear rules into the legislation, much of the detailed rulemaking was left to the executive agencies. That provided the industry a second bite at the apple, on much more promising territory behind closed doors. Indeed, even under a sympathetic Democratic administration, Dodd-Frank has been at risk, and that was magnified by the election.

Many of the Dodd-Frank rules remain incomplete.

According to Davis Polk’s most recent progress report in July, over one-quarter of Dodd-Frank’s rulemaking requirements have not been finalized, and about one in five have not even been proposed. These include an important multi-agency rule on executive compensation, which would discourage excessive risk-taking and allow for more clawbacks of bonuses in the event of corporate misconduct.

The easiest way for Trump to wipe out a big chunk of Dodd-Frank, then, is to direct agencies to never finish those unfinished rules. Trump promised a moratorium on new regulations at the outset of his presidency, so this would align with his vow to voters.

While regulators are scrambling to finalize the executive compensation rule and others before Obama’s term ends, Trump can take advantage of a tool the GOP Congress has used to express their dissent the past several years, known as the Congressional Review Act. Within 60 legislative days of a finalized executive branch rule, Congress can introduce a resolution to formally disapprove of it, and if the president signs the disapproval, the regulation is invalidated. That means any last-minute Dodd-Frank rulemaking not completed by this past May would be subject to Trump wiping them out with a stroke of a pen. This tactic can be used even if the regulation has already taken effect.

Trump can also rely on personnel changes to nullify the practical effect of Dodd-Frank. Independent agencies like the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, and the Commodity

Trump

e va n v u c c i / a p i m a g e s

& the Economy Futures Trading Commission (CFTC) get new majorities on their five-member boards based on the party of the president. Obama’s SEC Chair, Mary Jo White, resigned the week after the election, but Trump is entitled to fill two vacancies on the five-member panel regardless of White’s decision, enabling him to remake the agency.

On consumer protection, Trump could try to cripple the CFPB by having Congress pass a law returning its budget to the congressional appropriations process (currently it derives funds from the Federal Reserve), or changing the leadership structure from a single director to a fivemember bipartisan commission. But it’s much easier for him to just replace current Director Richard Cordray. A ruling this October from the D.C. Appeals Court allows a president to remove the director for any reason; the CFPB has appealed, but even if that’s taken up, Trump could fire Cordray for some imagined cause or wait until Cordray’s term expires in July 2018. With a loyalist installed, the Trump administration could render the CFPB ineffective.

The president-elect can also make a direct impact with cabinet appointments. For treasury secretary, he selected billionaire Steve Mnuchin, who was deeply implicated in foreclosure abuses in the aftermath of the subprime collapse that took down the economy.

Mnuchin ran OneWest Bank, one of the more egregious practitioners of robosigning and improper foreclosures, disproportionately in minority communities. Billionaire investor Wilbur Ross, Trump’s nominee for commerce secretary, owned the notorious American Home Mortgage Servicing Inc., which multiple state attorneys general sued for deceptive practices. Ross later served on the board of Ocwen, which paid billions in fines to the CFPB for abusive activities. These are not choices homeowners should welcome.

Perhaps the most important personnel change is the vacant position of vice chair for supervision at the Federal Reserve, created by Dodd-Frank but never filled. The vice chair develops regulatory policy recommendations, oversees the supervision of banks, and reports to Congress on its progress. Daniel Tarullo has held the de facto role but was never formally put into the position. With two vacancies on the Board of Governors, Trump could immediately slide someone into the vice chair position, strip Tarullo (who may leave the Fed anyway) of authority, and pursue

a deregulatory agenda at the most important financial regulator. The Fed staff, mostly holdovers from the laissezfaire Alan Greenspan days, would be all too happy to help.

When leadership changes at the top, the direction of regulatory enforcement usually follows suit. Regulators get slower to recognize unlawful activities, more trusting of financial lobbyists, and slightly more attuned to arguments about slowing down the economy if they uphold their mission. Furthermore, all of the new pro-bank leaders will sit on the same board: the Dodd-Frank–created Financial Stability Oversight Council, which monitors financial insti-

tutions for systemic risk and can impose more stringent regulations on the most dangerous firms. Overnight, this extra line of defense against systemic collapse would turn into a knitting circle.

This matches a dynamic that has periodically derailed aggressive regulation, regardless of the party in power.

University of Colorado law professor Erik Gerding calls it the “Regulatory Instability Hypothesis.” When markets are booming, banks and investors pressure agencies to deregulate, so more firms can participate in the success. A crisis sometimes shifts the pendulum back toward stronger supervision. “The cycle continues once memories of the crisis start to fade,” Gerding says, leading to compliance rot.

In other words, with eight years behind us since the last financial crisis, regulators can be expected to take their

Swamp, Personified: Hedge fund billionaire, Goldman Sachs veteran, Trump finance chair, and Treasury Secretary-designate Steve Mnuchin, at Trump Tower.

Winter 2017 The American Prospect 69

At Risk: Consumer Financial Protection Chair Richard Cordray (center), one of the right’s prime targets.

with the Justice Department over bubble-era abuses in the mortgage-backed securities market. Trump’s Justice Department could pursue a bigger fine and more punitive treatment of executives unless Deutsche Bank renegotiates the president-elect’s debt. And Trump could unleash this kind of regulation-by-threat on any financial institution that crosses swords with him, through any agency, from the Fed to the SEC to the CFPB. Another way to weaponize regulation is through federal preemption. Section 1041 of Dodd-Frank states that the CFPB cannot preempt stronger consumer protection laws in the states. If Congress eliminates that section—or if the agency just decides that certain state laws are inconsistent with their work—they can use the CFPB to nullify state efforts to boldly protect citizens. There’s a history of this under conservative governments: In 2002, Georgia passed a strong anti–predatory lending law, but the Office of the Comptroller of the Currency, the national bank regulator, told its institutions that they were exempt, citing federal

70 WWW.Prospect.org Winter 2017

preemption. The CFPB has even stronger consumer protection authority, extending to all sorts of financial products where they could water down state law, or even create a chilling effect by threatening to do so.

Of course, Republicans will likely also try to chip

away at Dodd-Frank legislatively, piece by piece. The biggest effort to date comes from House Financial Services Committee Chair Jeb Hensarling, an early rumored choice for Treasury secretary. Hensarling has loudly complained that Dodd-Frank has destroyed consumer and small-business access to credit (it hasn’t, according to the small businesses themselves) and created an impenetrable jumble of complicated rules (there he has a point).

Hensarling’s Financial CHOICE Act offers financial institutions a bargain. If they maintain a ratio of liquid assets to overall debt—known as the leverage ratio—of 10 percent, they can shed many other Dodd-Frank capital requirements and enhanced regulations. The idea is that if banks have a sufficient leverage ratio, they can cover their own losses, negating the need for a heavy hand of supervision. And to get to this level of leverage, banks may have to shed some business lines, initiating the downsizing themselves rather than because of a government mandate.

It’s interesting that a conservative like Hensarling would support higher leverage requirements, part of an intellectual sea change on the right that believes increased capital can counteract “too big to fail.” And Hensarling is seizing on a complaint from the reform-minded left, that current regulation is too needlessly complex and easy to circumvent, and that simpler, easier-to-enforce rules should be the goal. “One benefit to doing something more structural is you can loosen some aspect of regulations today,” says Gaurav Vasisht of the Volcker Alliance, a nonpartisan public policy organization.

The problem is that a 10 percent leverage ratio, while higher than the current 6 percent standard, is not worthy to the task. Anat Admati, a professor at Stanford and the leading commentator on the need for higher leverage requirements, wrote in a paper in May that it’s rare for any healthy corporation to fund more than 70 percent of its assets with borrowing. That would equal a 30 percent leverage ratio, three times what Hensarling wants. Leverage is also not simple to calculate and can be gamed by stashing items off the balance sheet, especially if, as in Hensarling’s approach, there’s no actual penalty for violators. Banks would have a year to rewrite their capital plan if they fall out of compliance, an invitation to yo-yo in and out as it suits them.

But there’s more to the CHOICE Act than leverage, and its smaller pieces could comprise a legislative à la carte menu to weaken financial regulation. Most of them

brennan linsley / ap images

eyes off the ball, even without the added prod of the Trump nominees. The Trump administration’s likely priorities on backing off Wall Street will act as a force multiplier for a familiar cycle of regulatory drift.

But when your deregulatory strategy is based on agency interpretation and selective enforcement, it also gives you flexibility to jump back in with a regulatory hammer at your discretion. With Trump’s appetite for vindictiveness, this strategy could be used not to obliterate financial regulation, but to weaponize it.

For example, Trump owes $364 million in commercial loans to Deutsche Bank, his biggest private lender. Deutsche Bank is simultaneously negotiating a fine

Trump

& the Economy have already passed the GOP-led House in some form.

Republicans want to repeal the “orderly liquidation authority” mechanism to unwind banks in a crisis, making enhanced bankruptcy the only available method. They would limit authority for the Federal Reserve and the FDIC to bail out financial institutions absent direct threats to overall stability. They would eliminate designations of “systemically important financial institutions” that confer heightened regulatory supervision on the riskiest firms, and weaken the independent judgment of members of the Financial Stability Oversight Council, the risk monitor that approves the designations. (For example, all members, who chair banking regulators, would need approval from their bipartisan boards before a vote.) They would impose regulatory relief for community banks and credit unions, exempting them from most Dodd-Frank rules and reporting requirements. They would prevent SEC registration for private equity firms and hedge funds, disband the Office of Financial Research, and force regulators to publicly disclose the frameworks of its stress tests, allowing banks to prepare for them in advance.

Some rules would be repealed, like the Volcker rule, which banned proprietary trading by deposit-taking banks, and the Department of Labor’s fiduciary rule, which forces investment advisers to act in the best interest of their clients. Republicans support a cost-benefit analysis for all new financial regulations, a subjective standard that could easily be interpreted to find any rule too costly.

They would pass the REINS Act, a radical piece of legislation that would give Congress a final vote on all major regulations from federal agencies, creating a bottleneck for rulemaking and essentially freezing the administrative state. They would overrule the Supreme Court’s deference to federal agency interpretation of rules, giving industry even more of an upper hand in litigation. They would even kill the Franken amendment to remove conflicts of interest in the credit-rating agencies, which the SEC never even bothered to act upon.

Democrats have 48 Senators and can use the filibus-

ter to block these changes, and Republicans appear wary at this time of eliminating the 60-vote threshold for legislation.

However, Democrats are unlikely to filibuster everything, and some of Trump’s deregulatory ideas have bipartisan support. Five Senate Democrats up for re-election in 2018 come from states that gave Donald Trump double-digit victories (West Virginia, Missouri, Montana, Indiana, and North Dakota), and five others Trump carried by lesser margins (Florida, Ohio, Pennsylvania, Wisconsin, and Michigan); they’ll be eager to compromise on some issues. A combination of them and a handful of business-friendly members of the caucus could support things like small-bank regula-

tory relief, which has been on the brink of passing for years.

Other planks of the GOP regulatory plan might get buyin from even reform-minded Democrats, like a Government Accountability Office audit of the Federal Reserve’s balance sheet. Some Republicans have vowed to increase SEC penalties on securities law violators, which could certainly get Democratic support, perhaps in a trade for accepting something more distasteful.

Furthermore, Republicans’ traditional practice has been to stick items Democrats wouldn’t support on their own into must-pass legislative vehicles like budget bills. This is how the Commodity Futures Modernization Act, which restricted derivatives regulation, passed in 2000, and it’s how a Democratic Senate and President Obama signed into law the only major repeal of a provision of Dodd-Frank, the “swaps push-out” rule that would have forced derivatives trading desks to be separately capitalized from their parent company, protecting customer deposits. Citigroup lobbyists wrote that repeal provision. Placing deregulatory measures into must-pass bills makes them much more difficult for Senate Democrats to stop.

Finally, Republicans have plans to enrich Wall Street executives in all sorts of ways unrelated to financial regulation. They could reinstate the bank middlemen on federal student loans (a program recently converted to direct loans by the Obama administration), returning a lucrative profit center to lenders. They could weaken or lay off antitrust enforcement of mergers and acquisitions, an extremely profitable outlet for the banks that advise those deals.

They could cut the corporate income tax, as well as the tax on pass-through income in corporate partnerships, a huge benefit for traders like hedge fund and private equity managers. They could recapitalize and release mortgage giants Fannie Mae and Freddie Mac, a top priority of hedge fund manager (and Trump adviser) John Paulson and other investors who bought up Fannie and Freddie stock cheaply, hoping for a financial windfall if they were spun back out to the private sector. They could allow banks to get rich from financing Trump’s $1 trillion infrastructure program, which essentially sells off public assets in a privatization fire sale.

That bonanza, combined with the reduction of costs from lighter regulation, explains why the financial industry views the next four years with all the anticipation of a child on Christmas morning.

Many experts believe that Dodd-Frank

didn’t go

far enough to truly make the public safe from the financial system’s abuses.

Democrats do have tools to prevent the onslaught.

The first is that the public still really dislikes the banking industry. And every time Wall Street hopes memories will fade and they can return to a deregulatory agenda, something like the 2016 Wells Fargo scandal drags the industry’s culture of deceit back into the spotlight.

Winter 2017 The American Prospect 71

Wall Street hopes that memories will fade, but events like the 2016

Wells Fargo

scandal

keep dragging the industry’s culture of deceit back into the spotlight.

The Wells Fargo case, where the bank was found to have systemically created millions of customer accounts without authorization in a bid to show retail sales growth, was arguably the most damaging incident since the financial crisis, if only because it was so easily understood. “The American people got it hands down,” says Senator Elizabeth Warren, Washington’s biggest champion of consumer protection. “They understood the game is rigged, and no amount of fancy footwork by Republicans could dance back that this bank built a profit model out of cheating its own customers.”

Even Republicans had harsh words in congressional testimony for Wells Fargo CEO John Stumpf, who stepped down from his position, a fairly unprecedented moment of accountability in the past eight years of scandals. The whole affair cemented the reform position that banks, left to their own devices, will take advantage of customers and shareholders. Even if you believe that these were 5,300 rogue operators issuing accounts on their own volition, “that indicates that these institutions are too big, too complex, too sprawling,” says Robert Hockett, a law professor at Cornell University.

There are ways to apply the Wells case more broadly, too. The real villainy was using sales metrics to promote corporate growth. So investors were buying stock based on false numbers ginned up by low-level employees out of fear of termination. That indicates a short-term mindset, a grab for profits at all costs. “The executives view themselves as working for the shareholders,” says Hockett.

This could spur interest in the credit union model, where the depositors are the owners. The National Credit Union Administration has been refining its requirements that could allow for significant expansion, which could trigger a large exodus away from the commercial banking industry. Wells Fargo account openings plummeted 30 percent just in the first month after the scandal was made public.

Any attempt to mess with the CFPB, for example, will be met with an invocation of Wells Fargo. More broadly, the preponderance of hedge fund moguls and bank lobbyists inside the Trump transition team is already being used to highlight the contradiction between Trump’s “for the little guy” campaign rhetoric and the reality of his likely governing decisions. Like the Democrats, the GOP included a restoration of the Glass-Steagall firewall in their official 2016 platform. And Trump repeatedly attacked Hillary Clinton for her Wall Street ties, proclaiming himself beholden to nobody, least of all financial industry executives. That could be useful in denying Republicans a frontal assault on financial rules.

But those quiet backrooms where regulators and industry representatives congregate will provide refuge from the anti-bank rabble. The average Trump base voters,

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while still concerned that the financial industry is too big and too complex, will likely pay no attention to a rule interpretation at the CFTC, or an enforcement decision at the SEC. “It’s too easy to get lost in the weeds around it,” says Warren. “We win the fight when it’s about basic principles. Once the principles are lost and you’re down to fighting technical language, lobbyists and lawyers have the upper hand.”

The imminent pummeling of Dodd-Frank should also raise questions about the future. Many experts believe that Dodd-Frank didn’t go far enough to truly make the public safe from the financial system. It maintained the basic business model and structure of the industry, and assumed that alert regulators could tweak the system into compliance. There are compelling doubts that tools like orderly liquidation authority would even work in a crisis.

And even structural prohibitions like the Volcker rule rely on whether regulators can figure out what represents proprietary trading and not market-making or hedging, two carve-outs in the rule.

“I used to work for Tim Geithner; he was a smart guy who knew a lot about the financial sector,” says Morgan Ricks, former Treasury Department official and author of The Money Problem. “To think that he can turn the dials on the machines, there’s no way anyone can do that.

There’s a technocratic conceit built into the way a lot of people think.”

An endless race between more complex financial institutions and more complex rules to target them guarantees that regulators will always remain behind as financial firms construct more esoteric instruments to conceal risk, or use complexity as a cloak to get their way.

Taking a step back, we could instead question whether expansive trading activity actually contributes anything productive to society. And if it doesn’t, we could ask why we allow it to exist. “We can control the system much better but we need to gather up the will to do it,” says Anat Admati, part of a team of thinkers who have worked separately on detailed structural reforms, which would be easier to police and more likely to return finance to its role as the facilitator of economic output, rather than the center of it.

Admati has focused on higher capital requirements, so financial institutions have their own funds at risk rather than the taxpayer’s. Arthur Wilmarth of George Washington University believes in rigorously narrow banking, similar to the “ring-fencing” proposals put forward in Great Britain and the European Union. This eliminates subsidies that banks receive to fund trading activities, both from access to cheap deposits and expectations of bailouts.

“You can take deposits inside a narrow bank that invests only in safe government securities,” Wilmarth says. “Add

Trump

s u s a n wa l s h / a p i m a g e s

& the Economy a no-transfer rule, not one dollar transferred out to capital market affiliates. If you had that, rigorously implemented, these guys would break up quickly.”

Wallace Turbeville of the think tank Demos believes over-reliance on trading as a profit center is responsible for sclerotic economic growth. He would ban derivatives entirely. “There’s a giant misconception that derivatives are a risk management tool,” Turbeville says. “I was the CEO of a derivatives risk management company. It’s not like I’m making this stuff up.” Tossing out derivatives is part of a broader project of Turbeville’s, to root out complexity and short-term thinking from the financial system, so that corporate profitability and growth are complementary rather than distinct.

Hockett and his Cornell associate Saule Omarova believe that money is a public resource, not a privately supplied product. The banks are just franchisees to the Federal Reserve’s franchise generation of credit. “When you take that view, everything looks different,” Hockett says. “If the federal government takes a more active role in allocating credit, that no longer looks like intervention or meddling, it looks like the sensible management of distribution of resources.” This opens the door for a much more direct public role in who gets credit, along the lines of a public bank. “The public has a fundamental right to have a say in how the financial system works,” says Omarova.

Morgan Ricks’s contribution concerns the creation of money-like instruments in the short-term debt markets.

The Federal Reserve and private banks are supposed to have a monopoly on money creation. But money markets or overnight repurchases (repo) are considered as safe as money for accounting purposes, despite being inherently unstable and prone to runs.

Under Ricks’s plan, all short-term debt instruments (renewable in less than a year) would have to be issued by a chartered bank. So-called shadow banks like hedge funds or private equity firms could not generate short-term debt to fund their activities. They would lose a cheap funding tool and have to take on real risk. “We’ve defined deposits the wrong way. All these other entities create deposits,” says Ricks. “They should be off limits.”

All of these are pretty radical ideas, but they have a simple elegance to them. Separating bank business lines by activities, and banning harmful products, changes the system we have from a complex, interconnected agglomeration, where a failure in one area can cascade everywhere, to a more independent system where firms can fail without causing catastrophe. Combining these ideas would reduce trading volumes and channel capital toward only necessary activity.

Moreover, the very existence of a new set of ideas puts us well ahead of the curve relative to 2008. Liberals had no solutions to take off the shelf then, inevitably leading

to a technocratic path of tweaks and dials. Instead of the parallel of the Great Depression, after which Roosevelt truly redesigned the financial system, the more apt parallel to the 2008 crisis may be the Panic of 1907, when we added a couple of important parts—most notably the Federal Reserve—but didn’t truly upend the practice of banking. “As bad as it was, the Panic of 1907 was not enough for fundamental reform,” says Arthur Wilmarth.

“Until 1933, the public was mad but they didn’t know what to be mad about.”

Even though we’re approaching a Dark Ages for reformers, Saule Omarova sees a ray of hope. She uses the example of regulatory relief for smaller banks. “That is actually a

structural reform step. You’re formally establishing two separate regulatory reform regimes,” Omarova says. “After that, a bunch of regionals that may be just above $250 billion [in assets] but are engaged in traditional banking business, and don’t deal with prop trading or derivatives—they might want relief. Once community banks are taken out of regulatory provisions, the next question will be activities.

It’s one way structural reform is already on the agenda.”

The Republican reign of deregulation will likely hasten another crisis, though it’s unclear where or when (though we are already seeing problems with commercial real estate, which contains a lot of exposure for banks). At that time, there will be renewed calls for wholesale reform, and renewed resistance from the industry to upsetting their business model. Having a demonstrable understanding of what to do when catastrophe strikes will be invaluable.

Paradoxically, chipping away at the present jury-rigged system of financial reform keeps the issues alive for much bigger interventions down the road.

Public Conscience: Senate Banking Committee member Elizabeth Warren grills Wells Fargo Chief Executive Officer John Stumpf (foreground) during a committee hearing on Capitol Hill in Washington, September 20, 2016.

David Dayen is a contributing writer to The Nation and author of Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud.

Winter 2017 The American Prospect 73

Can Labor Fight Back?

Trump and the Republicans plan to roll back worker rights to pre-New Deal levels.

By Ju stin Miller

A

s the former union bastions of Pennsylvania, Ohio, Michigan, and Wisconsin flipped from blue to red on election night, with votes rolling in for a billionaire real-estate mogul with a cheap populist varnish, the once-mighty American labor movement saw its life flash before its eyes.

Early in the Democratic primary, virtually every labor union lined up behind Hillary Clinton—seeing her as a better political bet than the socialist insurgent Bernie Sanders. In the general election, they spent record amounts of money on their ground-game operations to turn out the vote for Clinton and give Democrats a majority in the Senate.

The stakes were high. With Clinton in the White House, unions had assurances that President Barack Obama’s pro-worker regulatory regime—which had expanded the number of workers who could receive overtime, and had mandated minimum pay standards and paid sick leave for federal contract workers—would remain intact. They likely would have persuaded her to continue using executive authority and leveraging the government’s contracting power to lift up workers. The Department of Labor would have continued to adopt innovative enforcement practices for wage and hour laws, while the National Labor Relations Board would have continued to interpret labor law in ways more supportive of workers and their unions. And with a Democratic Senate, a path to citizenship for undocumented immigrants, an infrastructure plan stocked with goodpaying jobs, and even a higher minimum wage were all at least on the table. Even if the Democrats didn’t retake the Senate, Clinton would have served as a roadblock against Republicans’ anti-worker animus.

But it was not to be. When the Democrats’ Electoral College firewall collapsed, so too did the last line of political defense between a vulnerable labor movement and a Republican Party that has become even more uniformly opposed to unions and workers’ rights since 2006—the last time the GOP had unified control of the federal government.

The impending GOP attack on organized labor and workers will have multiple fronts: executive action, legis-

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lation, court rulings—and with Republicans in control of more than half the states, not just the federal government.

Unions need only look to Wisconsin and the orchestrated attack led by Republican Governor Scott Walker and his right-wing business allies to glimpse what might befall the nation. Soon after he was elected in 2010, Walker went after the state’s public-sector unions and gutted their collectivebargaining rights. After labor unions went all in on a recall election and failed, Walker went on to re-election in 2014 and signed into law right-to-work legislation the following year. Union membership rolls in Wisconsin have been decimated, significantly reducing the level of resources unions allot to organizing and politics. After Wisconsin flipped for Donald Trump, both the right and the left agreed on one thing: Walker’s attack on unions had been a deciding factor.

Clearly, the next four years for labor will be bad. How bad?

“In theory, with full GOP control, Republicans could repeal the National Labor Relations Act. They could repeal the Fair Labor Standards Act. They could repeal the entire New Deal,” says Catherine Fisk, a labor law professor at the University of California, Irvine. “There’s nothing to stop them except their own political strategy and fears of sparking a huge backlash.”

The New Deal is not likely to be repealed, at least

not in its entirety. The National Labor Relations Act has been so corroded by employers’ violations of its terms— for which the penalties are negligible—that there’s little point in repealing it. But Trump will almost certainly roll back most of Obama’s labor-related executive orders and rules. Federal courts have already made that job easier: In November, a federal circuit judge in Texas enjoined the rule that would have granted millions of workers access to overtime pay, just days before it was to go into effect, and his opinion signaled that he would likely throw out the rule altogether. While Obama has appealed the injunction, as of now the future of the overtime rule will ultimately be in the hands of Trump. And another federal judge, also in Texas, struck down Obama’s persuader rule, which required

Trump

& the Economy companies to better disclose union-busting activity.

Among Obama’s labor-related orders likely to be struck down by the new administration is the “Fair Pay and Safe Workplaces” order mandating that companies with substantial federal contracts provide a $10.10 minimum wage and paid sick leave for their contract workers, and furthermore disclose past labor-law violations. Orders requiring federal contractors to adhere to federal anti-discrimination laws for LGBTQ employees could also be wiped away.

“There’s a 25-year tradition of presidents very early in their tenures reversing the labor and employment executive orders of their predecessor presidents of a different party,” says Seth Harris, who served as acting labor secretary for Obama, between the tenures of Hilda Solis and Tom Perez.

Advocates don’t need to look far back into history to get a sense of what a Republican Department of Labor could mean. George W. Bush’s labor secretary, Elaine Chao, pared down the enforcement wing of the department to the point where, according to a Government Accountability Office report, workers’ wage-and-hour complaints often languished. She also intensified union auditing to bog down union staff with paperwork, and cost unions a lot of time and money. (The auditing exposed little wrongdoing.)

“The traditional approach of Republicans has been to emphasize compliance and de-emphasize enforcement.

That doesn’t stop enforcement; it just reduces enforcement’s importance in the compliance regime,” says Harris.

“That’s been the mode going back to Reagan.”

Unions are already considering the likelihood that Congress will pass national right-to-work legislation, which would ban private-sector unions from requiring dues payments from workers who benefit from union representation and contracts. If enacted, national right-to-work would significantly deplete both their membership and their treasuries. Trump has voiced support for such a law. Unions are also on the lookout for attempts to repeal or weaken such venerable labor laws as the Davis-Bacon Act, the prevailing wage statute that sets pay standards for workers on federally funded construction projects. (That measure could be part of the GOP ’s infrastructure plan.) Several prominent Republicans have already co-sponsored legislation for national right-to-work and repeal of Davis-Bacon.

The right is also dead set on reversing the National Labor Relations Board’s decisions that have tilted in favor of labor. House Speaker Paul Ryan’s vaunted “Better Way” agenda has a special section on the NLRB, which laments, “It is hard to imagine a federal agency that has imposed more radical change on America’s workplaces than the political appointees at the National Labor Relations Board,” citing as examples rules that have made it easier for unions to organize workplaces.

Ryan’s plan calls for curtailing the power and scope of

the NLRB, but that may change now that Trump will be appointing anti-union members to the board. “When Democrats are in power, Republicans try to starve the Department of Labor and NLRB,” says Nelson Lichtenstein, a professor of labor history at the University of California, Santa Barbara. “When they get into power, they don’t want to starve it anymore. They want their people in it.”

Though it may take a while for Trump to get his NLRB appointees approved, once a pro-business majority is in place the board will begin hearing cases that could reverse the Obama-era decisions that sped up union elections, allowed “mini-units” (a distinct set of an employer’s workers) to unionize, and established a new joint employer standard that makes corporations responsible for contractors’ and franchisees’ violations of their workers’ rights and labor law generally. A landmark NLRB decision that granted graduate student teaching and research assistants the right to form a union might be on the chopping block, too.

“At the NLRB, there is no middle ground. Precedent means nothing,” Lichtenstein notes. “It totally switches back and forth now.”

Wilma Liebman, a former Democratic chair of the NLRB, anticipates that Trump’s board will not only reverse Obama’s decisions, but will likely dramatically expand management rights, employers’ property rights, and employers’ free speech rights over the rights of workers and their unions.

“I wouldn’t expect too much that would be pro-worker. The question is how bad, and how fast?” she says.

Just last year, public-sector unions were facing the

near certainty that the Supreme Court would rule in Friedrichs v. California Teachers Association that non-union members were not required to pay mandatory “agency fees” for a public-sector union’s collective-bargaining services.

The prospect of a massive reduction in dues payments, and with that, the unions’ clout, stared them squarely in the face.

But Justice Antonin Scalia’s sudden death led to deadlock on Friedrichs; no decision came down. A new liberal justice appointed by Obama (or, after the Senate Republican stonewall, Clinton) would almost certainly have protected public-sector unions from such attacks for decades to come.

Now, President Trump is expected to nominate a reactionary in the same mold as Scalia. And though a deadlocked Court was unable to rule on Friedrichs, there are a couple of dozen cases working their way through the lower courts that would accomplish the same union evisceration that Friedrichs was intended to. With that, the GOP will have succeeded in its campaign to attack the public sector—which, with 35 percent density, is by far the most heavily unionized sector in the country.

A conservative Court is also expected to reject impending cases that seek to do away with mandatory arbitration

Prominent Republicans have already co-sponsored legislation for a national

right-to-

work law and repeal of prevailing wages on federally funded construction jobs.

Winter 2017 The American Prospect 75

Scott Walker’s attack on unions was a

deciding

factor in flipping Wisconsin into Donald Trump’s column.

clauses that prohibit workers and consumers from participating in class-action lawsuits.

With Trump’s court likely to rule that public-sector union-represented workers need not pay dues, those unions are scrambling to shore up their ranks. The leadership of the American Federation of State, County, and Municipal Employees—a 1.6 million-member organization that is one of the nation’s four big public-sector unions—says it got scared straight when it looked like Friedrichs would be upheld before Scalia died. AFSCME had already seen what could happen on a state level: After Walker gutted state workers’ collectivebargaining rights, AFSCME lost two-thirds of its Wisconsin membership. “I think we took things for granted,” AFSCME President Lee Saunders told The Washington Post in 2015.

“We stopped communicating with people, because we didn’t feel like we needed to. That was the wrong approach, and we don’t want to fall back into that trap.”

The union has focused on intensive internal organizing efforts, trying to rebuild connections with its members over the long term, not just when election season comes around.

Since 2014, it has trained thousands of its members in how to talk to their co-workers about the union and what they want from it. “The result has been a substantial culture shift.

Workers even in the smallest locals are now more empowered to make change, rather than waiting for someone from ‘the union’ to do it for them,” Saunders wrote in an op-ed for the Prospect. “And our frontline local leaders and staff representatives have gone from being service providers to organizing coaches. More and more, we’re teaching people to fish instead of giving them a fish.”

The back-to-basics strategy appears to be working. The union says it has signed up about 380,000 new duespaying members since it began the effort and hopes that continued contact with members will encourage them to stay in the union voluntarily if a Friedrichs-style case does come to fruition.

This, of course, is not the first time that organized

labor has faced an existential crisis—in fact, most of the movement’s history is characterized by existential crises.

As always, it’s labor’s response that will determine whether the oft-predicted demise of the movement will come to pass.

“What terrifies me most is [that] we adopt this conservative cautionary crouch. That means that even if everything we do that’s cautionary and conservative is successful, we’ll just be weaker on the other end of it,” says Stephen Lerner, a labor strategist who organized the Service Employees International Union’s groundbreaking Justice for Janitors campaign in the 1990s. “So we have to figure out how we do this in a way that will build a broader movement, not circling the wagons trying to save something that wasn’t working in the first place.”

A signature issue of Trump’s campaign was his promise

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to deport millions of undocumented immigrants, which would likely entail greatly stepped-up workplace raids. As more Latino and immigrant workers have joined unions over the past two decades, labor has become perhaps the leading advocate of fully legalizing the undocumented.

Now, one of its top priorities, observers say, will be resisting any assault on the undocumented community, including efforts to increase deportations.

Lichtenstein thinks that the Republican strategy will be to starve cities of federal funding as a means to undermine the power of union strongholds. Trump has already threatened to defund cities that maintain their sanctuary status for undocumented immigrants, as many major Democratic mayors have pledged. In addition, infrastructure and other critical federal spending programs could be selectively diverted to non-urban areas, creating a cash crisis for city budgets. “Every mayor, no matter how liberal they are, will be forced to take a harder line against the unions [especially public-sector], because money will be tight,” Lichtenstein says. “That will generate a kind of civil war within the Democratic political world.”

Where Republican governors have cut funding to Democratic cities, unions often have reacted forcefully. Illinois Republican Governor Bruce Rauner, for instance, has reduced state funding to Chicago, and, in response, Democratic Mayor Rahm Emanuel has privatized city services and closed public schools, running into fierce opposition from the city’s teachers union, which has relied on militant tactics to block some of Emanuel’s initiatives.

“That will happen in all sorts of places around the country,” Lichtenstein says. “Paul Ryan knows that. He’s been thinking about this for ten years. They have a well-developed idea of what they want to do: A fight inside of the cities, plus Friedrichs, will create Wisconsin on the national scale.”

Lichtenstein anticipates that as attacks against unions escalate, the movement will become more radical. “When you’re defeated and weak, you become radical institutionally. This is based in history,” he says.

Indeed, the centers of resistance, struggle, and progress will almost surely continue to be in localized areas—the liberal metropolises and the (few) Democratic-controlled states where union density is higher and progressive organizations are more influential. In such terrains, unions have experienced successes that may provide models for the broader movement, as more and more cities, at least, turn blue.

The Culinary Workers Union—a heavily Latino and female local that represents hotel and casino workers in Las Vegas— is a political powerhouse that, despite being in a right-to-work state, has maintained a robust membership of 60,000 and has pioneered strong leadership and service programs. The Culinary Workers have made Las Vegas a union town, and translated the power of their numbers and spirit into political

Trump

bill cl ark / cq roll c all via ap images

& the Economy success. In November, the union’s members played a key role in helping Clinton and Democratic Senate candidate Catherine Cortez Masto win in a contentious purple state, and also helped elect Jacky Rosen, a former Culinary member, and Ruben Kihuen, the son of a Culinary housekeeper member, to Congress in formerly Republican-held seats.

“We won because we were committed to doing this internal power-building,” says Bethany Khan, the local union’s communications director. “We’ll continue to be very aggressive and militant on fighting for and protecting workers.

We’ve done that for over 81 years and will keep doing that.”

The union will have to—especially since it’s in a heated dispute with the Trump International Hotel in Las Vegas, in which Trump himself has an ownership stake. Trump and his business partner have refused to recognize the union after workers voted in favor of unionization, and the hotel has appealed at every step. The union—which since 2001 has helped 16,000 Nevadan immigrants become citizens— has also pledged to be on the front lines against any type of anti-immigrant assault from Washington. “We will not stand for someone separating our families and the people we love,” Khan says.

In Chicago, after an insurgency by the reformist left wing of its rank-and-file caucus led to a more confrontational strategy, the teachers union has become one of the most effective organized forces during Mayor Emanuel’s divisive tenure. It has led fights against austerity measures, school closings, and privatization of the Chicago Public Schools system. After a tense showdown over contract negotiations this fall, a last-minute contract deal was reached to avert a strike. The teachers union was able to get most of its contract demands and protect teacher salary and benefits by forcing the city to redirect $88 million from a tax increment financing fund. The union’s public protests, broad-based coalitions, and strikes—and its campaign that highlighted how financiers have captured public money—can provide a road map for urban teachers unions under a Trump presidency, which looks to have its eyes set on privatizing the public education system.

“No one has quite digested that they basically had a strike against the city’s ruling class and said you better find the money somewhere,” Lerner says. It is these types of more radical strategies that the broader movement needs to embrace—adding offense to all the defensive maneuvering unions will be compelled to undertake.

Beyond Chicago, Lerner points to initiatives like the Committee for Better Banks campaign—backed by the Communications Workers of America—as an example of using unions not only as a vehicle for advancing workers’ rights, but for the common good. For the past few years, the campaign has been organizing front-line bank workers—tellers, sales associates, call center operators, and so

on—including the Wells Fargo employees who helped blow the whistle on the company’s widespread account-creation fraud. Unionizing bank employees, Lerner says, would not only ensure that jobs would pay a middle-class wage, but also allow bank workers to come forward about corporate misconduct without fear of repercussions.

During the Trump presidency, liberal cities and blue

states will likely continue to serve as incubators of progressive policies that improve the quality of low-wage work. In response to the Fight for 15 campaign, several of the country’s largest cities have instituted a $15 minimum wage, as have the nation’s two largest states, California and New York. A number of cities are on the verge of passing new ordinances

mandating paid sick leave, paid family leave, and access to predictable schedules and full-time hours for retail workers.

Ballot measures continue to prove effective at cutting through political resistance and putting pro-worker policy directly before the voters. On Election Day, three states— Arizona, Colorado, and Maine—approved ballot measures that would increase their minimum wage to $12 by 2020.

Washington state voters approved a measure to hike their minimum up to $13.50 by 2020. Arizona’s and Washington’s measures included mandatory paid sick leave as well. Voters in San Jose, California, approved a measure requiring businesses to offer available hours to part-time workers before making additional hires. During the midterm elections of 2014, voters in four red states—Alaska, Arkansas, Nebraska, and South Dakota—also approved minimum-wage increases.

While many cities and counties in red states are preempted by state law from passing their own local minimum-wage or paid sick leave policies, organizers have found alternative, if less-comprehensive, routes, such as living-wage

Power On The Sidewalk: Las Vegas hotel union members protesting outside Donald Trump’s hotel-casino, with Democratic candidate Ruben Kihuen, whom they helped to unseat a Republican congressman in November’s election.

Winter 2017 The American Prospect 77

SEIU’s ability

to fund

campaigns like the Fight for 15 may be diminished by court rulings and a right-towork law that shrinks its membership.

ordinances for city workers and contractors. Wisconsin, for instance, prohibits localities from passing minimum-wage ordinances. In Milwaukee County, however, the Wisconsin Working Families Party (WFP), after launching in 2015, and the Alliance for Good Jobs have helped recruit and elect progressive activists to the County Board of Supervisors, among them Marcelia Nicholson and Sequanna Taylor, both activists in the city’s teachers union, who won their seats in April. Nicholson promptly drafted a living-wage ordinance that would mandate a $15 minimum wage, phased in by 2022 and then tethered to inflation, for county employees and contract workers. The ordinance was overwhelmingly approved in early November, just days before Election Day. In September, the WFP helped pass a similar ordinance in Dane County, home to the state’s capital of Madison.

Following a pattern established in Los Angeles in the 1990s, the state’s WFP and Milwaukee’s Alliance for Good Jobs also brokered a deal with NBA basketball team the Milwaukee Bucks, which is currently building a new arena, to establish a community benefits agreement that mandates that all the arena’s service workers are paid $15 an hour by 2023; that at least half of the employees will come from impoverished Milwaukee neighborhoods; and that these workers will have a right to unionize with card-check neutrality. The groups hope to expand these types of agreements to other types of private-sector employers in the city.

What the Wisconsin groups are doing amounts to “taking the movement for $15 and union, and working to establish those goals through local measures,” says Peter Rickman, a co-chair of the Wisconsin Working Families Party, who helped lead the living wage and community benefits campaigns.

In just four years, the Fight for 15 has experienced

great success in pressuring politicians and private employers to increase their minimum wages. So far, some 19 million low-wage workers stand to benefit from raises that, in aggregate, total up to $62 billion, according to a report from the National Employment Law Project. That’s ten times the total raise workers received when the federal minimum wage was last increased in 2007. And the movement, backed by SEIU, of low-wage workers, predominantly young African Americans and Latinos in cities, has begun expanding its mission to intersect with the black-led movements against police violence and voting restrictions and Latino-led demands for immigration reform. The Fight for 15 could very well become the labor movement’s spear under Trump: a broad-based coalition of marginalized workers, in the streets and making demands for both economic and civil rights. In its first action since Trump was elected president, the Fight for 15 staged protests which included civil disobedience in more than 300 cities across the country with a broad collection

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of low-wage workers—fast-food, child-care, and home-care workers; airport employees and adjunct professors—as well as allies and elected officials.

But the campaign faces impending problems, both legal and monetary. SEIU has so far funneled more than $70 million into the movement and has pledged to maintain funding into the future. While the movement has succeeded in winning wage hikes, it still struggles to find a path to unionization, which for SEIU is the other long-term goal of the project.

Instead of trying to organize unions shop by shop, which is very resource-intensive and not likely to succeed, the union has placed its hopes in a case before the NLRB that argues that corporations like McDonald’s have the same level of responsibility for workers as their franchisees—meaning if one franchise unionizes, McDonald’s would be compelled to sit at the bargaining table as well. If that can happen, SEIU believes, it would be easier to wage a mass unionization campaign throughout the company. However, Trump’s election poses potential obstacles to both that case and the NLRB’s joint-employer standard (which makes both the franchisee and the parent company liable for labor-law violations) more broadly. And if the Supreme Court, augmented by a Trump appointee, goes after public-sector unions—and if national right-to-work passes—SEIU’s membership numbers are likely to decline along with its budget. Its ability to fund a massive operation like the Fight for 15 without a clear path for new members could become a luxury SEIU could not afford.

New York City Council Member Brad Lander is proposing a legislative remedy to address that. In early December, he introduced a bill that would require local fast-food restaurants to allow workers to send dues to labor advocacy organizations (like the Fight for 15) directly from their paychecks. Such a policy could be a critical experiment in sustainable funding for alt-labor initiatives, like workers centers, which typically rely on union and foundation funding, and perhaps become a first step in strengthening worker institutions that are not traditional unions.

Trump’s election and the GOP ’s control of Congress have blindsided unions. Yet the forthcoming challenges are not new and have been the subject of fierce debate within the labor movement for years. “A lot of it [will be] just an acceleration of things that are already happening,” says Ruth Milkman, a sociologist of the labor movement at the City University of New York. The right wing’s plot to destroy the American labor movement, once again, will have its home base in Washington, D.C. How to organize and grow while confronted with increasingly scarce resources, and in the face of an ongoing existential threat and an adversarial power structure, is, now more than ever, the ultimate labor question. Whether there’s a good answer to that question remains to be seen.

Education According to

Trump The tax-supported common school, dating to 17th-century Massachusetts, is one of America’s gifts to the world.

How much damage will the entrepreneurs do, if schooling is just one more commodity?

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The War on Public Schools

Charters, vouchers, and disposable teachers are Trump’s targets.

By Rachel M. Co hen

e va n v u c c i / a p i m a g e s

O

n November 8, 2016, the man who vowed to be “the nation’s biggest cheerleader for school choice” won the presidential contest. About two weeks later he announced that Betsy DeVos, a billionaire Republican donor who has aggressively lobbied for private-school vouchers, online education, and for-profit charter schools, would serve as his education secretary. In early December, Jeb Bush told an audience of more than 1,000 education reformers in Washington, D.C., that he hoped “there’s an earthquake” in the next few years with respect to education funding and policy. “Be big, be bold, or go home,” he urged the crowd.

To say education conservatives are ecstatic about their new political opportunities would be an understatement.

With Republicans controlling the House and Senate, a politically savvy conservative ideologue leading the federal education department, a vice president who earned notoriety in his home state for expanding vouchers, charters, and battling teacher unions, not to mention a president-elect who initially asked creationist Jerry Falwell Jr. to head up his Department of Education, the stars have aligned for market-driven education advocates.

Donald Trump neither prioritized education on the campaign trail, nor unveiled detailed policy proposals, but the ideas he did put forth, in addition to his selection of Betsy DeVos, make clear where public education may be headed on his watch. And with a GOP Congress freed from a Democratic presidential veto, conservative lawmakers have already begun eyeing new legislation that just a few months ago seemed like political pipedreams.

Many aspects of education policy are handled at the state and local level, of course, but Republicans will govern in 33 states, and Trump will have substantial latitude to influence their agenda. The next few years may well bring about radical change to education.

SCHOOL CHOICE

“President-elect Trump is going to be the best thing that ever happened for school choice and the charter school movement,” former New York Mayor Rudy Giuliani has proclaimed. “Donald is going to create incentives that

promote and open more charter schools. It’s a priority.”

Giuliani’s comments reflect the enthusiasm that Trump expressed about choice and charters while campaigning for president. During a March primary debate, Trump said charters were “terrific” and affirmed they “work and they work very well.” A few months later he traveled to a lowperforming for-profit charter school in Cleveland to say he’d invest $20 billion in federal money to expand charters and private-school vouchers as president. His campaign has not outlined where the money would come from, but suggests it will be accomplished by “reprioritizing existing federal dollars.”

Trump’s ambitions will likely be aided by his vice president-elect, Mike Pence, who worked vigorously to expand charter schools and vouchers while serving as Indiana’s governor. Pence loosened the eligibility requirements for students to obtain vouchers, and eliminated the cap on voucher recipients. Today, more than 30,000 Indiana students—including middle-class students—attend private and parochial schools with public funds, making it the largest single voucher program in the country. Pence also helped double the number of charter schools in his state; he increased their funding and gave charter operators access to low-interest state loans for facilities.

In the House and Senate, Republicans are eager to expand Washington, D.C.’s private-school voucher program, which has paid for about 6,500 students to attend mostly religious schools since the program launched in 2004. “I think [the Republican Congress and new administration] could eventually turn D.C. into an all-choice district like we see in New Orleans,” says Lindsey Burke, an education policy analyst at the right-leaning Heritage Foundation.

Congress also allocates $333 million per year to the federal charter school program, and groups like the National Alliance for Public Charter Schools are calling for that number to rise to $1 billion annually. Martin West, an education policy professor at Harvard’s Graduate School of Education, noted that to the extent the federal charter school program is well funded, states will continue to feel pressure to position themselves competitively for those dollars.

Conservative leaders at the state level are also looking

Winter 2017 The American Prospect 81

to expand private-school vouchers and so-called education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, in addition to private-school tuition. At the Washington conference where Jeb Bush keynoted, panelists spoke enthusiastically about setting up vouchers or education savings accounts in all 50 states. On the campaign trail, Trump called for expanding private-school vouchers for low-income students, but his vice president-elect and his nominee for education secretary both support giving vouchers to middle-class families, too.

Congressional Republicans may also try to establish federal tax-savings accounts for K–12, which are similar to the 529 plans that already exist for higher education, and which mainly benefit well-off families. They also may push for federal tax credit scholarships, which would provide tax relief to individuals and businesses that help low-income children pay for private school.

In a sense, the George W. Bush and Barack Obama administrations softened the ground for a federally incentivized expansion of vouchers and other forms of privatization. In the bipartisan deal that led to the enactment of No Child Left Behind in 2002, Bush and Democrats led

by Senator Edward Kennedy traded federal standards for more federal funding. The subtext was the Republican narrative that public schools were failing. This in turn led to the era of standardized testing and punitive measures against “failing” schools. Later, by appointing former Chicago Public Schools Superintendent Arne Duncan to lead the Education Department, and passing over such progressive reformers as Linda Darling-Hammond, Obama sided with those who sought measures like the nationalization of academic standards. The new backlash from conservatives against testing and the Common Core should not be interpreted as a rejection of a federal role. The right loves it when Washington intervenes—if it serves the right’s purposes.

THE DEPARTMENT OF EDUCATION

Trump has boasted that he would reduce the size of the federal government, and his DeVos-led Department of Education is one likely place he’ll start. Though threatening to dismantle that federal agency is a long-standing Republican tradition, surrogates say it is more likely that Trump will try and “starve” the department, and downsize its responsibilities, rather than kill it outright.

In October, Carl P. Paladino, a New York real-estate developer who was briefly considered for education secretary, took to the stage on Trump’s behalf at a national urban education conference and said the department’s Office for Civil Rights—which oversees initiatives like tackling college sexual assault and reforming school discipline—was spewing “absolute nonsense.”

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Obama’s Education Department has given unprecedented attention to reducing racial disparities in school discipline, issuing the first set of national guidelines in 2014 and making clear that it would hold districts accountable for discriminatory practices. Policy experts think these efforts will fall quickly by the wayside in the coming years.

In a press conference following Trump’s victory, David Cleary, the chief of staff for Republican Senator Lamar Alexander, who chairs the Senate Committee on Health, Education, Labor and Pensions, said his boss believes the Office for Civil Rights should be reined in. “There will be aggressive oversight from Congress to make sure it shrinks back to its statutory authority and responsibilities,” Cleary said.

Another major threat to the Education Department is a significant loss of institutional knowledge. Politico reported that the agency is already experiencing a loss of morale since the election, and bracing for a serious brain drain: Many veteran employees who have served for decades, in addition to younger staff who entered government under Obama, are considering leaving because they don’t want to work for a President Trump.

COMMON CORE

One crowd-pleasing element of candidate Trump’s stump speech was his promise to “kill” Common Core—the standards launched in 2009 that lay out what all K–12 students are expected to learn in English and math. The standards, which were created by a coalition of state governors, and incentivized by the Obama administration through the federal Race to the Top program, have been a flashpoint for conservatives, who see them as a threat to “local control.” Trump vowed to eliminate Common Core through the so-called School Choice and Education Opportunity Act—part of the legislative agenda he says he’ll focus on during his first 100 days. DeVos now stresses that she does not support Common Core, although an organization she founded—the Great Lakes Education Project, which she also funded and served as a board member for—strongly backed the standards in 2013.

While there are limits to what Trump and DeVos could do to end the Common Core standards (they are state standards, after all), Trump’s executive bully pulpit could certainly help embolden Common Core opponents on the local level.

Still, Catherine Brown, vice president of education policy at the Center for American Progress, is not so worried about the future of the national education standards. “I don’t even think Donald Trump knows what the Common Core is,” she says. And despite candidate Trump’s demagoguery, Brown points out that states haven’t really abandoned them, even in more conservative parts of the country. “To the extent that states have changed their standards, they basically renamed them and kept the basic content,” she says.

Trump & Education

TEACHERS UNIONS

This past year, public-sector unions faced an existential threat from Friedrichs v. California Teachers Association, a Supreme Court case seeking to overturn a 40-year-old ruling that required public employees represented by a union to pay fees to cover the union’s bargaining and representation costs, even if they do not pay full membership dues. Five of the nine justices were clearly primed to rule against the socalled “agency fees” and upend decades of legal precedent, but Justice Antonin Scalia unexpectedly died in February, before the Court could rule. The case ended up in a 4–4 tie, leaving the law, and collective bargaining, in place.

Now that the Republican Senate has refused to hold a vote on Obama’s appointment of Judge Merrick Garland, Trump will nominate a conservative Scalia successor to the Court. With a number of Friedrichs look-alike cases headed to the Supreme Court, it’s a near certainty that a reconstituted majority of five conservative justices will strike down agency fees, which could considerably reduce the resources available to the American Federation of Teachers and the National Education Association—two of the nation’s largest unions. Were that not trouble enough, the massive support that the AFT and NEA gave to Hillary Clinton’s campaign is not likely to endear them to a president with a well-known penchant for revenge.

EVERY STUDENT SUCCEEDS ACT

At the end of 2015, Congress passed the Every Student Succeeds Act (ESSA), the successor to the controversial Bushera No Child Left Behind Act, which tied federal funding to school performance. The new law is set to take full effect during the 2017–2018 school year. While there was broad recognition that ESSA marked a positive step forward from the test-and-punish regime that had reigned for 13 years under No Child Left Behind, a diverse coalition of civilrights groups has worried that its replacement, which substantially reduced the federal government’s role in public education, will not do enough to hold states accountable for the success of racial minorities, students with disabilities, and English language–learners. “The hard-learned lesson of the civil rights community over decades has shown that a strong federal role is crucial to protecting the interests of educationally underserved students,” wrote the Leadership Conference on Civil and Human Rights in a letter to Capitol Hill during the ESSA negotiations.

For the past year, the Obama administration worked to draft regulations that would help maintain some level of federal accountability for student learning and funding equity, particularly for disadvantaged students. These executive-level regulations, which have been controversial among congressional Republicans, are likely to be abandoned, or weakened, under President Trump.

One policy that congressional Republicans might push for under a President Trump is known as “Title I portability,” which would allow states to use federal dollars earmarked for low-income students to follow students to the public or private school of their choice. While still a candidate, Trump brought in Rob Goad, a senior adviser to Representative Luke Messer, an Indiana Republican, to help him flesh out some school-choice ideas. Messer cosponsored a bill during the ESSA negotiations that would have launched Title I portability, but Obama threatened to veto any version of the law that contained it. A White House report issued in 2015 said that Title I portability would direct significant amounts of federal aid away from high-poverty districts toward low-poverty ones, impacting such districts as Chicago, Detroit, Los Angeles, and Philadelphia particularly hard. Conservatives may see a more politically viable route to push this policy under Trump.

Brown of the Center for American Progress doesn’t think Congress will likely pursue Title I portability, however, in part because it has a lot of other legislative priorities to attend to. “The ink is barely dry on ESSA; states haven’t yet submitted their plans. I think [portability] is probably dead on arrival, but maybe six years from now,” she says. Even then, Brown thinks the policy will never be all that popular, since huge swaths of the country lack many school options, making them poor candidates for private-school vouchers.

But other education experts say that the lack of brick-andmortar schools in rural communities just means that the door could open more widely for for-profit virtual schools, which DeVos has strongly supported. In 2006, Richard DeVos, her husband, disclosed that he was an investor in K12 Inc., a national for-profit virtual charter school company that has since gone public. As of mid-December, Betsy DeVos had not clarified whether her family still holds a financial stake in the for-profit education sector.

HIGHER EDUCATION

Trump, who founded the now defunct for-profit college Trump University, recently agreed to pay $25 million to settle a series of lawsuits alleging fraud. Sara GoldrickRab, a sociologist at Temple University who studies college affordability, predicts America will be “open for business” under President Trump when it comes to promoting for-profit colleges. “This means cutting regulation and oversight, and defunding public higher education so that students view for-profits as a good deal,” she wrote on her blog following the election. The Higher Education Act, which governs the administration of federal student aid programs, is also up for reauthorization in 2017.

Trump didn’t devote much time while campaigning to talking about colleges and universities, but he did say in an October speech that he’d look to address college affordability

DeVos has been a strong supporter of for-profit

virtual

schools, in which she and her husband have had a financial stake.

Winter 2017 The American Prospect 83

Democratic proponents of charter schools are

conflicted

about the pro-choice preferences of the incoming president.

by supporting income-based repayment plans, going against many Republicans who say such initiatives are fiscally reckless and create incentives to acquire too much higher education. Conservatives have also proposed rolling back Obama administration reforms that federalized all new student loans and applied stricter regulations, particularly to forprofit institutions. If President Trump does ultimately reprivatize student loans, consumer protections would likely disappear, and the cost of borrowing would rise.

University leaders are also worrying about what a Trump administration could mean for research funding. The government is likely to cut back on investments on budgetary grounds, but also on ideological grounds, since universities tend to be seen as liberal enclaves. Experts say that non-ideological scientific research is particularly vulnerable. House Republicans, led by Representative Lamar Smith, who chairs the House Science, Space and Technology Committee, have tried before to cut federal funding for social sciences and climate and energy research, and having a president who refers to global warming as a hoax “created by and for the Chinese” doesn’t augur well for federal research investments.

Moreover, as the president-elect frequently rails about political correctness, higher education leaders worry that a Trump administration will not look kindly on student free speech and protest. Ben Carson, who was briefly considered for Trump’s education secretary, said that if he were in control he would repurpose the department to monitor colleges and universities for “extreme bias” and deny federal funding to those judged to have it. Decrying alleged campus bias is a staple of “alt-right” (read: white nationalist) media outlets like Breitbart, whose chief, Steve Bannon, will be Trump’s strategic adviser and senior counselor.

The Path Forward for Progressives

For a week following the election, it wasn’t clear how exactly the liberal groups that backed Obama’s education reform agenda—Common Core standards, test-based accountability, and charter schools—would respond to their new choice-friendly president. The fact that the school reform agenda has long had bipartisan backing has always been one of its strongest political assets.

As pundits tried to guess whom Trump would pick for various cabinet-level positions, rumors started to float that Trump might be eyeing Michelle Rhee, the controversial former D.C. Public Schools chancellor, or Eva Moskowitz, the founder and CEO of Success Academy Charter Schools in New York City, for education secretary. Both women back the Common Core standards, and are broadly revered among Democratic school reformers.

But on November 17, just over a week after the election, the president of Democrats for Education Reform, Shavar Jeffries, issued a strongly worded statement urging Demo-

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crats to refuse to accept an appointment to be Trump’s secretary of education. “In so doing, that individual would become an agent for an agenda that both contradicts progressive values and threatens grave harm to our nation’s most vulnerable kids,” Jeffries said. He condemned Trump for his plans to eliminate accountability standards, to cut Title I funding, to reduce support for social services, and for giving “tacit and express endorsement” to racial, ethnic, religious, and gender stereotypes, and he called on the president-elect to disavow his past statements.

Shortly thereafter, Moskowitz announced that she would “not be entertaining any prospective opportunities” in the administration, but defended the president-elect, saying there are “many positive signs” that President Trump will be different than candidate Trump. His daughter, Ivanka Trump, took a tour of a Success Academy charter in Harlem later that week. Rhee, following a meeting with Trump a few days later, issued a statement saying she would not pursue a job in Trump’s administration but that “[w]ishing for his failure” would amount to “wanting the failure of our millions of American children who desperately need a better education.”

The equivocating didn’t end there. Democrats for Education Reform soon walked back their original declaration of opposition to Trump. In a statement sent to the group’s supporters, Jeffries wrote that DFER was not saying Democrats should not work with Trump on education, but just that no Democrat should work for him as secretary of education. “[W]e draw a distinction between working with and working for Trump,” Jeffries wrote. “Where appropriate, we will work with the Administration to pursue policies that expand opportunity for kids, and we will vocally oppose rhetoric or policies that undermine those opportunities.”

In a political climate where teachers-union strength may dramatically diminish, opposition to Trump’s agenda from liberals who supported Obama’s education reforms could be an important deterrent to Trump’s rightward march on education. But with DFER already signaling that it’s open to working with Trump, with high-profile reformers like Moskowitz and Rhee also giving him a public nod of approval, and since some of the same billionaires who fund the charter school movement also back the president-elect, the chances aren’t great that Democratic education reformers will staunchly oppose Trump’s school reform agenda.

Randi Weingarten, the president of the American Federation of Teachers, is under no illusions about the enormous challenges that loom for the future of public education.

Yet she notes that over the past half-decade, educators and their unions have worked with their communities like never before. “If Donald Trump opts for privatization, destabilization, and austerity over supporting public education and the will of the people,” she says, “well, there will be a huge fight.”

Trump & Education

Milwaukee’s Voucher Verdict

What 26 years of vouchers can teach the private-school choice movement—if only it would listen

By Erin Richards

T

romain Collier was looking for work last year when he heard about an opening at Ceria M. Travis Academy, a private K–12 school in Milwaukee where student tuition was funded by taxpayers.

He was hired and started at the beginning of October. Collier, 33, had an online bachelor’s degree in business and experience as a security guard and basketball coach. He figured teaching couldn’t be that much harder.

He was assigned to teach a split class of third- and fourthgraders. The school, he says, offered him no curriculum and no record of what the previous teachers had taught. He started punching search terms into the computer such as “third grade reading” and “Common Core”—academic standards he’d heard of on the news. The classroom bookshelf held a total of five science books, which Collier recognized from his own elementary school days. They still listed Pluto as a planet, though it was demoted more than a decade ago.

Travis Academy enrolled just over 300 children in kindergarten through 12th grade last year in the deeply impoverished northwest side of Milwaukee, where most African Americans live. Just one student scored at least “proficient” in language arts on the latest state exams, and none were proficient in math, science, or social studies. That the school has operated for two decades belies a philosophy that’s underpinned private-school choice in Milwaukee for 26 years: Introducing competition to the government monopoly on public schools will lead to higher academic performance.

Travis Academy is among a minority of Milwaukee voucher schools that score this low, but it’s not an anomaly.

Half a mile away at Holy Redeemer Christian Academy— another fixture in the blighted neighborhood, where it’s dangerous to walk alone even in broad daylight—just 4 out of 206 pupils tested were proficient in English on the latest state tests. None were proficient in math.

Together, Travis Academy and Holy Redeemer have received close to $100 million in taxpayer funding over the years. The sum is less than what taxpayers would have paid for those pupils in public schools, because each tuition voucher costs less than the total expense per pupil in Mil-

waukee Public Schools. But vouchers weren’t supposed to provide just a cheaper education. They were supposed to provide a better one.

Milwaukee offers America’s longest-lived experiment

with urban-school vouchers, but their mixed legacy is not a story you’ll frequently hear from lawmakers and advocates currently championing the spread of private school–choice programs across the country. Pushed predominantly by Republicans, Wall Street Democrats, and well-heeled conservative philanthropies, programs that send public money directly or indirectly to private schools have proliferated in both scale and variety in recent years, and they stand to get even more attention under President-elect Donald Trump, who has vowed to make school choice an educational priority.

Trump’s vision of making $20 billion of federal money available for children in low-performing public schools to attend charter and private schools could get a huge push in spirit or reality if Betsy DeVos is confirmed as education secretary. (See “The War on Public Schools,” by Rachel Cohen, page 81.) DeVos is one of the nation’s most influential schoolchoice advocates, and she’s used her family’s fortune and clout in Republican politics to expand programs that allow more children to attend private and religious schools with taxpayer dollars, all in the name of innovation and opportunity.

“Education is a closed system. It’s a monopoly. A dead end,” DeVos said last year at the South by Southwest education conference in Austin, Texas. She underscored the need to overcome the political class that keeps America bound to a “ridiculously antiquated” mechanism for educating children, especially children of limited means.

“If we can manage to break free, to open the system and embrace all choices for education, we’ll be first to have the politicians hang awards on their office walls,” and the next generation of kids will be the real winners, DeVos said.

Thanks to more than two generations of school

choice, Milwaukee’s educational system is arguably one of the most open in the nation for children of any urban

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private, virtual, or even suburban schools, all with taxpayer dollars following them—exactly what DeVos imagines.

Incoming Vice President Mike Pence has overseen a rapid creation and expansion of private-school vouchers in his home state of Indiana, which could serve as a blueprint as Trump and his team assess how to put more dollars toward choice options. Understanding Milwaukee’s experience is therefore all the more urgent now that school-choice proponents are in charge of America and its education policies.

The energy behind private-school choice got a major boost in 2010, when the GOP started making gains in statehouses across the country. At that time, 15 states and

A Choice Appointee: Betsy DeVos, nominee for education secretary, meets with Senate Majority Leader Mitch McConnell in the Capitol, December 1, 2016.

the District of Columbia hosted 24 private school–choice programs. By 2016, 28 states and D.C. had passed a total of 61 programs, according to the nonprofit advocacy group EdChoice, formerly known as the Friedman Foundation.

For school vouchers specifically, more programs have been created in the past six years than in the two decades since 1990, when Milwaukee launched its landmark program. Specifically, 11 voucher programs were created between 1991 and the 2010 midterm elections. Fourteen have been approved between 2011 and today, according to statistics from EdChoice.

School-voucher programs historically have allowed taxpayer-funded subsidies to support low-income students in private schools. But new laws passed in states such as Wisconsin and Indiana have relaxed eligibility requirements to allow more middle-class families to participate.

Other legislation indirectly benefits private schools with tax dollars. States such as New Hampshire, Montana, and South Dakota offer tax credits to businesses that donate

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to nonprofits that award grants for qualifying students to attend private schools. Wisconsin, Indiana, Minnesota, and Louisiana now offer individual income tax deductions to parents who pay for private schooling.

The latest voucher-like iteration, education-savings accounts, debuted in 2011 and quickly spread to four more states, including Nevada, where the program is in legal limbo, and Tennessee, where a new program will launch in 2017. Education-savings accounts allow parents to build an à la carte education for their children by paying different providers with a set amount of state funds essentially loaded onto a debit card. In general, proponents argue that all the programs use tax dollars efficiently and disrupt the status quo by giving parents the ultimate freedom: the ability to choose an educational program that best suits their children’s needs.

“This is how families without means will get access to a world-class education,” DeVos said at the same conference last year in Austin. DeVos and her husband, Richard, are heirs to the fortune amassed by Michigan-based Amway, one of the biggest multi-level marketing companies in the world. They also back the powerhouse national advocacy group American Federation for Children, which has spent millions to help elect school choice–friendly lawmakers and to lobby aggressively for favorable legislation that benefits private and religious schools. DeVos believes the delivery of education can only be revolutionized through choice, innovation, and freedom.

But critics worry the school-choice programs are increasingly siphoning off much-needed resources from public schools to private institutions, which don’t have the same legal obligations to publicly disclose all their data or serve all needy children, including those with significant disabilities who are expensive to educate. Skeptics see school-choice advocates as being on a thinly veiled mission to chip away at public-school systems until they’re insolvent, while enriching private interests.

“Their basic money is taxpayer money, yet many have these closed-door policies,” says Gail Hicks, a retired Milwaukee schoolteacher known in local education circles for crusading against low-quality charter and voucher programs with her friend Marva Herndon, a retired programmer. They are both black, and they have grandchildren. Voucher schools in Milwaukee and now in the rest of Wisconsin—thanks to expansions signed by Republican Governor Scott Walker since 2011—are not compelled by law to hold public meetings or disclose high school graduation or dropout rates. They are not obligated to make public any data on student suspension or expulsion or attendance rates, or any information on teachers, from salaries to absenteeism to a simple roster.

“The public doesn’t know about anything going on inside a fly-by-night voucher school until it gets shut down by the

tom williams / cq roll call via ap images

ZIP code and income level to choose conventional, charter,

Trump & Education

state for safety or financial reasons,” Hicks said one night as she and Herndon talked about education issues in Herndon’s basement, a longstanding forum for their discussions.

“It’s a disservice to the nation for this stuff to be going on and to be promoted as a cure-all for children of color.”

Created in 1990 by a coalition of black parents and

school-reform advocates with the blessing of a Republican governor, the Milwaukee Parental Choice Program aimed to allow poor parents to withdraw their children from public schools and send them to higher-performing private schools they probably couldn’t otherwise afford.

Today, a little under a third of Milwaukee’s school-age population attends voucher schools. Overall, test-score outcomes for the Milwaukee Public Schools and the private voucher schools are remarkably low, and remarkably similar: On the latest state tests, about 80 percent of children in both sectors were not proficient in English and about 85 percent were not proficient in math. The voucher high schools, however, posted slightly higher 11th-grade ACT scores this year than Milwaukee Public Schools: a 17.5 composite, compared with the district’s 16.5.

Milwaukee, where 40 percent of the 500,000 residents are black, has the second-highest black poverty rate of cities nationwide. Reading achievement for black fourth-graders in Wisconsin ranks second-to-last in the nation, trailing only Michigan (read: Detroit). The gap between high school graduation rates for Wisconsin’s white and black students is the widest nationwide. So is the black-white gap in science achievement. Black men in Milwaukee are incarcerated at a rate higher than anywhere else in the nation.

The voucher program is not to blame for all of that, of course, but some wonder why the major reform hasn’t made more of a difference. The program has bolstered some decent religious schools—mostly Catholic and Lutheran— which would have never maintained a presence in the inner city serving poor children without taxpayer assistance. It’s helped to incubate a couple of private schools that eventually became high-performing charter schools. But it’s extended the same life raft to some abysmally performing schools that parents continue to choose for a variety of reasons besides academic performance. And it’s kept afloat a great number of mediocre programs.

Research shows Milwaukee parents have listed small class sizes and school safety among their top reasons for choosing a voucher school. Safety per se doesn’t equal educational excellence, but parents’ perceptions of safety can drive their decision-making. But are those perceptions accurate? Advocacy group School Choice Wisconsin examined police-call data for Milwaukee’s public and voucher schools in recent years and determined voucher schools to have proportionally fewer requests for assistance, but

voucher schools also serve a disproportionately small number of students in high school, where many of the most serious school incidents warranting police attention occur.

Objective data on school safety are hard to come by without records of incident reports, suspensions, and expulsions.

What won’t show up in any data is the glacial improvement in a city where three sectors are engaged in pitched battles for student enrollment and funding: Milwaukee Public Schools with about 76,000 students; the Milwaukee voucher program with just over 28,000 students; and independent charter schools with just over 7,000 students.

Entrenched interests have fought so long and so hard over vouchers—the teachers union and Democrats on one side, conservative foundations and Republicans on the other— that the entire landscape often feels anchored to the status quo of low educational outcomes for the neediest students.

The calcified positions have made it hard to create and pursue any real plan for improving outcomes for all children, and as a result, significant steps toward across-the-board school accountability have been slow in coming.

Henry Tyson, the superintendent of St. Marcus Lutheran School, a popular and high-performing voucher school that now serves children in Milwaukee’s central city, has long been frustrated at the lack of state and local political attention given to policies that would help expand highperforming programs and eliminate low-performing ones.

“I am intensely frustrated by the voucher schools that are chronically underperforming over a long period of time,” he says. “As far as I’m concerned, any school that has been open three years or more that is under 5 percent proficiency should close, whether that’s a public school, charter school, or voucher school.”

Milwaukee has failed to develop such a mechanism in part because many choice advocates don’t want to give more power to the Wisconsin Department of Public Instruction, which they do not believe is an objective overseer. Other advocates refuse to acknowledge that parent choice alone will not always raise the quality of the market.

Skeptics see school-choice advocates

chipping

away At Public-School systems until they’re insolvent, while enriching private interests.

Vouchers in Milwaukee emerged from a legacy

of racial segregation and efforts to overcome its stifling effects on black children. Milwaukee had long been an industrial city settled by German and other northern European immigrants. Job-seeking black migrants from the Deep South arrived relatively late, coming mainly after World War II, and fast: Milwaukee had the highest African American migration of any Midwestern city between 1950 and 1959, when the black population ballooned by 187 percent, compared with a 16 percent rise in the city’s overall population. But the factory jobs that migrants had hoped to secure were already evaporating, and racially restrictive housing covenants and discriminatory lending

Winter 2017 The American Prospect 87

Overall,

test-score

outcomes

for the Milwaukee Public Schools and the city’s private voucher schools are remarkably low, and remarkably similar.

practices kept their housing choices limited to a 75-block area north of downtown Milwaukee.

The white anxiety brought on by the sudden influx of poor blacks caused a crisis in the schools. A federal lawsuit brought against Milwaukee Public Schools in the 1960s challenging school segregation prompted many white families to flee to the suburbs. So it was no surprise in 1986 when a state-commissioned report revealed the quality gap between city and suburban schools. Twice as many Milwaukee tenth-graders scored below the national median for their grade levels than their peers in the suburbs, and Milwaukee high school students failed one out of every four classes in which they enrolled, the report said.

By that point, it seemed as if every major reform proposal, from busing to magnet schools to open enrollment, had failed in some critical way for black children in Milwaukee.

Enter Howard Fuller, a nationally known school-reform advocate who was at that time working in politics. He tried to rally support at the state level for a black-led district to break off from Milwaukee Public Schools. When that proposal failed, Annette “Polly” Williams—a Democratic state representative who had known Fuller since their days in high school together in Milwaukee—broke ranks with the traditional thinking of her party to align herself with former Republican Governor Tommy Thompson, who had a keen interest in vouchers.

The concept had been on the minds of conservatives for decades and had been tried in some very small-scale experiments on the East Coast and in California. The avuncular conservative economist Milton Friedman had long popularized the theory that schools would be more efficient and higher-performing if government money flowed directly to parents, and then to the institutions of their choosing. But the movement didn’t get the strength it needed to go mainstream until Milwaukee’s black leaders supported the idea, even if their motivations for doing so differed from those of white conservatives. Williams, a single mother, had watched as the white-dominated response to school-integration orders in Milwaukee had shut out blacks from enrolling in some of their own neighborhood schools. She saw vouchers as a way to give her constituents something they’d never had: A choice outside of the public school system.

Williams found a strong ally in the Milwaukee-based Lynde and Harry Bradley Foundation. The foundation had gained power and influence almost overnight in 1985, after a corporate merger between Rockwell International and the Allen-Bradley Company catapulted the charity’s assets from $14 million to more than $290 million. With its new resources, the charity recruited Michael Joyce, a mastermind from the conservative East Coast–based Olin Foundation, to rethink its strategies. Under Joyce, the Bradley Foundation began investing in right-wing think

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tanks and conservative journals and funding the work of other conservative nonprofits. The Bradley Foundation also sponsored the pivotal book Politics, Markets, and America’s Schools, written by conservative researchers John Chubb and Terry Moe and published in 1990, which helped shift attitudes around the country in favor of voucher programs.

When the Milwaukee voucher program went into effect, it initially allowed just over 300 children to attend seven private schools with vouchers worth about $2,500 annually.

The schools could not be religious and were not allowed to have more than 49 percent of their students on vouchers— both compromises that helped the proposal gain the votes it needed to pass. But parent demand exceeded available spots in nonsectarian schools, and the Bradley Foundation, the Milwaukee business community, and then-Mayor John Norquist, a Democrat, all supported amending the legislation to include religious schools, approved in 1995.

When the voucher program faced a legal challenge from the teachers and administrators unions and the Wisconsin Department of Public Instruction, the Bradley Foundation was at the ready to fund the defense. The legal support proved invaluable, locally and nationally. The Wisconsin Supreme Court upheld the program in 1998. And the U.S. Supreme Court upheld Cleveland’s school-choice program in 2002, which effectively validated Milwaukee’s as well.

The Bradley Foundation continues to fund conservative legal groups today, such as the Wisconsin Institute for Law & Liberty, which hires researchers and lawyers to take on cases that advance the cause of school choice.

As Milwaukee’s voucher program expanded, some betterthan-average private religious institutions were able to grow and thrive, like the Messmer Catholic Schools network on the city’s north side. But relatively freewheeling entry requirements for private schools also opened the door to abuse: A convicted rapist opened one voucher school. Leaders of another siphoned off $330,000 of their public funds and spent $65,000 on two Mercedes-Benzes instead of teacher salaries. Another voucher high school was closed by the state for not complying with the requirement for a minimum number of hours of instruction. A student there testified that class time was spent “doing crossword puzzles and shooting dice,” according to a state hearing examiner’s report.

The most robust performance study of Milwau-

kee’s voucher program didn’t start until 2007, as part of a state-mandated longitudinal assessment that lasted until 2012. The study, led by researchers at the University of Arkansas School Choice Demonstration Project, followed a matched sample of students in each program and ultimately revealed little difference in performance between the public schools and the voucher schools. Their research said students exposed to a voucher school in Milwaukee

Trump

m i k e d e s i s t i / m i lwa u k e e j o u r n a l s e n t i n e l

& Education

were more likely to graduate from high school and continue at a four-year college, but the report also noted that more than half the students who started ninth grade in a voucher high school were not still there by 12th grade.

One of the strongest predictors of students enrolling in a four-year college, regardless of whether they attended public or voucher schools, came down to just one factor: whether their parents had college degrees.

The results of the study started to cause a break in the alliance of school-choice advocates in Wisconsin. Most notably, Fuller, a respected voice in the field, became an advocate for increased regulation of the program. Williams had already been sidelined, though her work effectively helped spawn a national movement of charter schools.

“I see her as the origin of the choice and charter movement we have today, but the voucher movement had really passed her by in the late 1990s,” says Robin Harris, managing editor of the Education Trust advocacy group in D.C. and a relative of Williams who is writing her biography.

Conservatives had hoped that vouchers would be the model to take off in the wake of the Milwaukee program, but it was charter schools—which were public but could usually sidestep teachers unions, and were independently managed but still beholden to accountability provisions— that gained bipartisan support in most other states.

Williams died in 2014, after years of publicly voicing regrets about her support for the voucher program. She had voted for the expansion that allowed religious schools to participate, but by 2011 she was railing against a plan supported by Governor Walker and GOP leaders in Wisconsin, which called for lifting the income limits on participants in the Milwaukee voucher program, eliminating the enrollment cap, and also expanding the voucher program to the city of Racine.

“It was never supposed to get this big,” Williams said at a public meeting in Milwaukee in the spring of 2011.

These days, Fuller works on education issues out of an office on Marquette University’s campus in downtown Milwaukee, not far from the iconic Gesu Church on the Jesuit campus. “Programs to help the poor, specifically, are always going to be in jeopardy over time,” he said one afternoon while reflecting on how vouchers have evolved in Milwaukee. Fuller started the Black Alliance for Educational Options to advocate for vouchers nationally, but he doesn’t agree with the current conservative thinking that vouchers and private-school choice should be available to people of all incomes. Vouchers should give low-income and working-class people a different education, not people in his income bracket who can already afford to pay for those options, he said.

“I’m trying to convene young people to see if they can focus on quality and be agnostic about school sector, but

it may not be possible because of the politics of it,” Fuller says wistfully. “If we could only quit fighting over whether these options should exist, we could focus on the best way to maximize what we have to create the best opportunities for kids.”

Fuller’s advocacy plus other pressures for reform

have led to more regulation of the voucher program, which has belatedly begun weeding out some of its worst actors.

The private school teachers and leaders are now required to at least have bachelor’s degrees. The schools have to obtain accreditation, though lawmakers had to later tighten that language to get rid of irresponsible accreditation agencies.

If the state has reason to believe a voucher school is financially unstable, it can require leaders to secure special bonds that assure the state they could pay back public funds if they go belly up. Voucher schools had to administer the same state standardized achievement tests as public schools and publicly report the results starting in 2011, which allowed the public for the first time to look up test scores for each voucher school—more than 20 years after the start of the program.

This year, Wisconsin’s voucher schools have been pulled into the same report-card accountability system as the public schools and districts, but it will still be a few more years before there is enough data in the metrics to actually give the voucher schools a performance rating. There is still no consequence planned for schools that score very, very low, unless there is outright fraud. And some of the earlier oversight measures that helped shine a bit more light into the practices of voucher schools were quietly eliminated in Wisconsin’s last budget session. Those included requirements that voucher schools submit their discipline policies and grade-promotion reports to the state for potential public inspection. Now schools only have to share those details with parents.

Copies of the discipline policies are squirreled away in paper files at the Department of Public Instruction in Madison, which is located inside a blocky government building near the Capitol dome and across the street from a beckoning set of taps at the Great Dane Pub and Brew-

Skeptic: Milwaukee Collegiate Academy senior Daisha Rogers gets a fist bump from education activist Howard Fuller. Fuller, who helped start the voucher school, now favors greater regulation.

Winter 2017 The American Prospect 89

As more state legislatures have expanded voucher programs in recent years, public support

for vouchers has actually fallen.

ing Co. An inspection of those records over several days revealed many voucher schools with discipline policies that call for students to be expelled for “repeated refusal to obey school rules” or for “disruptive behavior,” or even for simply talking back to the teacher. Other policies said students would be subject to “academic dismissal” if they did not accumulate credits in a timely enough manner.

Some school handbooks stated that transfer students would be accepted conditionally for their first year on academic probation, a violation of state law for voucher students. But without accurate records from the schools on the retention, suspension, or expulsion of voucher students, it’s impossible to know if any of the schools actually followed through on such language, or what became of the students.

Grade promotion records were incomplete and inconsistent. The most recent year available, 2014–2015, revealed many voucher schools had a student population that dramatically diminished as the grade levels advanced. This year, Wisconsin finally launched a longitudinal student data system that will track students throughout their educational careers, no matter how many times they switch from public to private schools. But it will be years before the system can shed real light on where students are going, and why.

When proponents want to showcase a triumphant

example of school choice, they often point to Henry Tyson’s school, St. Marcus Lutheran, just north of downtown Milwaukee. Its buildings are gleaming, the expansions paid for over the years by a strong donor network. The school’s roster is up to more than 800 students, in four-year-old kindergarten through eighth grade. About 95 percent of the children attend with the help of a voucher, and nearly all of them are black and poor. Children wear uniforms and have access to music, art, and physical education, a playground and gymnasium, and five special-education teachers. Staff members start each day with a prayer circle, and discipline is strict. Misbehaving students are sometimes sent to stand against the wall in Tyson’s office, a punishment that uses sheer boredom as a deterrent for classroom disruptions.

Tyson likes to say that the school embraces a “whatever it takes” approach to reach students. This fall, staff started offering a girl who was consistently tardy $3 per day to come early and work the school’s breakfast shift. It worked, Tyson said. The school’s state test scores are high relative to city and state average results for low-income and black children: About 27 percent of St. Marcus children were proficient in English and 30 percent were proficient in math on the latest state exams.

Tyson is a charismatic British expat who attended boarding schools as a child and found his calling in urban, religious education. He rejects allegations that high-performing voucher schools “skim” the best students from public schools.

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Officially, Milwaukee voucher schools must accept all children who apply, meet the income qualifications, and live in the city, though leaders can inform parents that the school might not be able to meet their child’s special-education needs. Higher-performing schools do, however, tend to attract a higher share of parents who are well equipped to make educational decisions. To enroll at St. Marcus, for example, parents have to apply in time for the lottery and sign a covenant agreeing to get their child to school on time and to oversee homework. They have to agree to sit down with teachers in their home at least once a year, and attend parent-teacher meetings. And they have to find their own transportation, as St. Marcus does not provide busing.

That feature caused St. Marcus graduate Ashli Cobbs, 25, to pull her daughter out of the school. After Cobbs lost her factory job, got evicted, and wound up on her mother’s couch in a two-bedroom suburban apartment this past year, she could no longer drive the 40-minute round trip to get her daughter to school every day. The hurdle saddened her, as Cobbs still remembered the focus the school gave her when she transferred in as a middle school student.

“The faith component and the teachers’ expectations— that matters,” Cobbs says. “You can’t say that the people around you and their actions don’t affect you. That’s how we learn from each other.”

St. Marcus successfully challenges the narrative of intractable low achievement for impoverished children in the inner city. But only a small share of children are getting a St. Marcus-like experience when they sign up for the program. Research shows that vouchers have not produced higher test-score results, on average. Some research has pointed to a slight uptick in test scores for public schools as a result of voucher competition. Other research suggests higher graduation rates and lower crime and incarceration rates for students exposed to vouchers. But one of the most recent studies, a December 2015 evaluation by Duke and MIT scholars on the first year of the expanded Louisiana Scholarship Program, showed that attending a voucher school substantially reduced student achievement. The study, which was published by the National Bureau of Economic Research, tracked voucher-school lottery winners and losers in the first year of Louisiana’s new statewide voucher program and found that the winners had lower math scores, and that voucher effects for reading, science, and social studies were also “negative and large.” The study surmised that negative voucher effects might be because low-quality voucher schools were the first to jump into the program. Some voucher advocates dismissed the results by saying that the program started with too many regulations, which drove away the best private schools and opened the door for the most struggling and low-quality programs to grab students and public dollars.

Trump & Education

Milwaukee’s mixed experience has not slowed the political momentum of the voucher movement, but it may have helped to shift the narrative. Instead of being championed as a panacea for failing urban schools and a desperately needed option to help the poorest children stuck in the lowest-resourced programs, private-school choice is now being positioned as a fundamental right that should be guaranteed to all families. Instead of discussing how to account for shortcomings of choice programs in the past, advocates paint what feels like a pitfall-free future, where private-school choice is the route to innovation and individualization, the Uber alternative to the school district’s staid taxi.

That parallel was vocalized multiple times by schoolchoice advocates at two recent conferences hosted by the American Federation for Children (AFC) and the Florida-based Foundation for Excellence in Education, founded by former presidential candidate and schoolchoice advocate Jeb Bush.

“What we need to do is to toil every day and keep pushing for that Berlin Wall moment,” says Kevin Chavous, a Washington, D.C.-based lawyer and education-reform advocate who supported the launch of the federally funded D.C. voucher program. Chavous is a founding board member of the AFC, and a tall African American with piercing blue-gray eyes and an industrious nature—he’s written entire books on education reform during long-distance flights. He believes that school choice can and will become the dominant method of delivering educational opportunity in America.

“We’re close to that tipping point,” he said in May 2016 during AFC ’s annual conference at National Harbor, a resort hugging the Potomac River just south of D.C. It’s important to remember that private-school choice is still just a tiny sliver of the pie when it comes to publicly funded education in America. Approximately 50 million children attend public schools run by school districts.

About 2.5 million attend public charter schools. And only around 400,000 attend private schools with the help of voucher, tax-credit scholarship, or education-savings account, according to EdChoice. But substantial jumps could be around the corner, especially as the programs continue to expand from targeting solely low-income children to being open to all.

Recent polls show that Americans are split in their attitudes on private school choice. But as more state legislatures have approved voucher programs in recent years, nationwide public support for vouchers has fallen, according to new results of a nonpartisan annual poll conducted by the Program on Education Policy and Governance at Harvard’s Kennedy School and published in the affiliate journal Education Next.

Between 2012 and 2016, nationwide public support for vouchers targeted at low-income students fell from 55 percent to 43 percent, a sharper drop than for universal vouchers, where support fell from 56 percent to 50 percent.

But within those numbers was a curious trend: Democrats favored vouchers and also tuition tax credits at a higher rate than Republican respondents.

“Republican support for vouchers … is slipping, creating a partisan cleavage in the electorate that is the opposite of the divide observed among Democratic and Republican elected officials,” the researchers wrote.

So how do you provide quality options for those who wish to exercise choice, while also supporting the system serving those who don’t? If we want to see more schools like St. Marcus and fewer schools like Ceria M. Travis Academy, what policies need to be put in motion? Those questions have dogged Wisconsin, especially as a greater share of public education dollars than ever before is funneled to private programs. This year alone, Wisconsin will spend $245 million on the voucher programs in Milwaukee, Racine, and statewide, as well as a new special-needs voucher program.

For its part, Travis Academy will be taking a smaller share of taxpayer dollars than ever this year. In fact, zero.

Leader Dorothy Travis-Moore recently lost her legal battle with the state education department, which had sought to close the two schools she ran for failing to comply with financial requirements. Travis-Moore was a veteran public school administrator before receiving a total of almost $50 million since the late 1990s to educate low-income children through the voucher program. Tax records show she spent some of the money to enrich herself and her daughter with six-figure compensation packages while former teachers complained to the media of being shortchanged of wages and classroom resources. Now the state has ordered TravisMoore to pay back taxpayers the $2.3 million she received in payments for children she couldn’t prove she educated in her mandatory financial filings.

That day of reckoning, however, took the better part of two decades—not a reassuring sign of competition driving higher quality.

And Tromain Collier, the basketball coach turned elementary school teacher? He left Travis Academy in April 2016, after his paychecks came late and then not at all.

Today he’s part of a lawsuit with nine other former Travis Academy staff members who are suing Travis-Moore for $45,000 worth of back pay. Their case is scheduled for a hearing in 2017.

It’s unclear where all the children went, but a fair number could have stayed right in the Travis Academy building, where another voucher school, United to Serve Academy, took over this year. Its test scores are just about as low as Travis Academy’s.

Erin Richards is an education reporter and editor at the Milwaukee Journal Sentinel. She completed this article with support from the Spencer Fellowship in Education Reporting at Columbia University.

Winter 2017 The American Prospect 91

Portable Benefits Portable Benefits

for an Insecure Workforce

Why Americans need portable benefits, what those benefits should look like, and how those benefits can be created and funded

By Nick Han au e r an d D av id R o lf

I

magine an entirely new system of employment benefits—a system that substantially closes the gap left by the ongoing decline of secure full-time employment while uniting business and labor, tech companies and small businesses, progressives and libertarians.

You would sense you were on to something, right?

We believe that we (and Barack Obama, Elizabeth Warren, Etsy, and the libertarian R Street Institute) are on to something.

Traditional full-time employment—and the middle-class lifestyle it enables—is slipping from the grasp of more and more American workers, who’ve been stripped of the benefits our parents’ generation understood to be part of standard compensation: health insurance, vacation, sick leave, unemployment and disability insurance, and retirement. The loss of these basic employment-based benefits is worsening the insecurity faced by workers and their families. Fewer and fewer jobs offer a full package of benefits, or any benefits at all.

At the same time, innovative companies such as TaskRabbit, Instacart, Handy, and Upwork— part of a sector variously called the on-demand, sharing, or gig economy—risk being distracted from the task of creating real economic value by the easy profits to be reaped from classifying workers as independent contractors. This “disruption” of employee-employer relations, which has abetted the on-demand companies’ billiondollar revenue and high-flying stock valuations,

92 WWW.Prospect.org Winter 2017

moves us beyond the letter and spirit of our aging and inadequate regulatory framework.

The debate over the on-demand economy isn’t merely a legal question, however: Our collective failure to close the widening gap between technological innovation and social realities is responsible for much of the economic angst that dominated the 2016 election.

To address this challenge, we developed the idea of a “Shared Security System,” a package of portable benefits for contingent workers first proposed in the Summer 2015 issue of the journal Democracy (“Shared Security, Shared Growth”). Soon after, an unlikely collaboration of individuals and organizations from across the political spectrum also called for a new system of employment benefits. Supporters included gig economy executives, labor leaders, venture capitalists, business people, academics, and policy professionals.

This Shared Security System would recognize that work and employment are changing, and that we can no longer wait to act as the old system unravels. Workers would earn and accrue portable benefits on a per-hour basis, regardless of a worker’s relationship with the employer that is paying him or her. Like Social Security, these benefits would be fully portable, with every worker having an account at the qualified financial institution of his or her choice. Companies would be responsible for paying into workers’ benefit accounts at a reasonable rate. In some situations, workers or the government might also contribute to benefit accounts.

In the year and a half since we first proposed a Shared Security System, we’ve seen serious interest from the tech sector and public policy experts. (President Obama even mentioned portable retirement benefits in his last State of the Union address.) It seems highly likely that cities and states will begin experimenting with some type of prorated, portable benefits program within the next year. Accordingly, it’s time to move beyond our rough outline and into more specifics of what a plan could and should look like—and why it’s so crucial for the future of American workers.

Over the past few decades, corporate America has assiduously worked to sever the social contract that had formerly been the birthright of the Great American Middle Class.

There was once an understanding that the benefits of growing labor productivity would be shared with the workers who created it.

But while productivity has continued to rise, most of the profits over the past few decades have accrued to CEOs and their shareholders, while most of the disruption from the historic transformation of globalization, automation, and the financialization of the economy has been shouldered by workers and their families.

And little has proven more disruptive than the transformation of the employment relationship between corporations and their workers—particularly low-wage workers.

The direct employer-employee relationship assumed by U.S. labor law, a staple of our soci-

ja son schneider

ety for generations, is no longer the reality for 40 percent of American workers, according to the U.S. Government Accountability Office.

These “contingent” workers have jobs that are temporary, irregular, or otherwise not expected to last. Whether they are driving for Uber, working multiple part-time jobs without a consistent schedule, or contracting for a labor intermediary, a growing number of workers don’t have a stable employment contract with the company (or companies) that pay them.

Even workers who technically have a full-time job and receive a W2 increasingly do not work for the company that ultimately benefits from their work—but rather for an ever-shifting network of subcontracting companies.

These pressures have been building for years, as David Weil’s study The Fissured Workplace makes clear. Over the past few decades, corporations have made a science of squeezing labor costs down to the bone.

There’s been no one there to stop them: Where labor unions once had the power to hold the line on wages, today fewer than 7 percent of private-sector American workers are represented by a union. At the same time, technological advances in automation and communications have made it easier, and financialization has provided pressure, for companies to export jobs overseas, hire less-skilled contract workers, or eliminate the positions entirely.

Even those jobs that remain have increasingly been low-wage service-sector work; the jobs that returned after the Great Recession were, on net, all lowwage. According to economists Lawrence Katz and Alan Krueger, all of the net employment growth over the past decade has been in contingent work.

These transformations have created a more rootless, desperate—and flexible—labor force.

Workers could feel the effects of these changes in their lives, but until now there hasn’t been a focal point to galvanize public attention around these changes in the nature of work.

Now we have a name: Uber. The powerful ride-sharing company has helped drive the creation of one particular form of the fissured workplace—the on-demand sector. Uber, Lyft, Handy, TaskRabbit, Postmates, Instacart, and

an ever-evolving cast of smartphone applicationbased companies have built their sometimesmassive valuations (Uber’s is $66 billion) around a business model of providing customers the service, flexibility, and convenience they were often missing from more traditional competitors.

On-demand companies have also built their fortunes on the insistence that the workers who provide these services are not employees, but rather independent contractors who are simply

using their technical platforms to connect with customers. This strategy has allowed them to provide services that are powered by a large and highly flexible workforce, which is—in aggregate—ready to work at any time, for any amount of time. According to the JPMorgan Chase Institute, more than 4 percent of American workers received income from the on-demand platform economy between 2012 and 2015, a rate which increased 47-fold over that time. This growth rate makes platform work by far the fastestgrowing sector of the economy, even exceeding

the growth of home health care and software.

Many labor advocates have found the contractor arrangements enshrined in the ondemand sector to be unfair and exploitative.

By classifying workers as independent contractors, the companies evade the traditional responsibility of paying basic benefits like unemployment and Social Security taxes, complying with overtime provisions, or allowing collective-bargaining efforts. On-demand drivers are also not reimbursed for their gas, insurance, or car payments.

Multiple lawsuits have charged these companies with “misclassifying” their workers as 1099 contractors instead of W2 employees, and have met with some success. Most experts believe that the companies exist in a legal gray zone that could easily turn into a serious liability problem. Drivers for the Lyft platform are most of the way to winning a class-action misclassification lawsuit against the company; U.S. District Judge Vince Chhabria granted approval to a $27 million settlement for the workers, saying Lyft had “shortchanged” the drivers. The judge also called out the inherent difficulty in applying labor law to the on-demand economy, noting that “the jury in this case will be handed a square peg and asked to choose between two round holes.” A similar suit is being brought against Uber.

Confronted with this litigation, ondemand companies would be providing further evidence that their contractors are actually employees if they were to pay their workers benefits or provide them with training. Attorneys in misclassification lawsuits against the on-demand companies can make a strong case that providing benefits indicates a traditional employer-employee relationship between the companies and the workers.

It is important to note that worker classification is a legal issue, and not a choice to be made at the convenience of a company or industry.

But without a legal mandate or industry-wide agreement for on-demand companies to provide workers with benefits, the companies aren’t willing to jeopardize their contractor-based business model, thereby finding themselves stuck with fewer options for recruiting, training, or retain-

winter 2017 The American Prospect 93

ing their workforce than their competitors enjoy.

While a study by Intuit said most workers are “highly satisfied” with their on-demand jobs, many also protest that the companies treat them like contractors while trying to manage them like regular employees. Uber drivers, for example, are essentially required to abide by Uber’s “rules” for exactly which and how many fares they take—or risk being deactivated from the platform without warning.

In a fissured, flexible world of work, do we give up on the American model of benefits tied to employment? Or innovate a new way to tie them together? When some worry that Uber is wrecking work, we need to remind ourselves, as The Economist wrote last year of the contingent workforce, “that the on-demand economy is not introducing the serpent of casual labour into the garden of full employment: it is exploiting an already casualised workforce in ways that will ameliorate some problems even as they aggravate others.”

All of which leads us to our unexpected bargain: Portable benefits. By redefining work for the 21st century in this way, we will find a common ground between workers who can’t or don’t want to obtain a 40-hour workweek with a traditional employer, and employers who seek to reimagine the worker-employer contract.

It offers workers and employers alike the certainty they require while still acknowledging the realities of a technology-driven economy.

We need to put a structure in place that will raise standards for all contingent workers— including those who weren’t ever included in traditional labor law (notably, the domestic and agricultural workforce, explicitly excluded due to misogyny and racism). It’s time for a new safety net, with workers earning benefits that are

from job to job; by contributions from employers (for example, a $2-per-hour contribution); and ■ universally accessible by all workers.

account. A worker should be able to manage and maintain their benefits from year to year, and their protections should not depend on the app they currently have open.

Proration means each company contributes to a worker’s benefits at a fixed rate depending on how much he or she works, or earns. Contributions from companies can be prorated by dollars earned, jobs done, or time worked. For example, if a person works an hour for a delivery company and an hour cleaning houses, both companies would contribute a predetermined amount toward that worker’s benefits on a perhour basis, such as $1 for each hour worked. To increase their competitiveness in the labor market, companies could also choose to contribute more, or offer an expanded suite of portable benefits beyond the minimum requirements.

And universality requires that benefits cover all workers, not just traditional W2 employees.

If all companies are playing on the same level field, there is a lot less room for gamesmanship and creative avoidance of employment classification, and more certainty for both workers and companies about their rights and obligations. Any viable benefits system for the new economy must cover individuals working outside of a traditional employment relationship.

A system of portable benefits would initially be tailored to the needs of contingent workers—especially on-demand workers, who are among the least protected—but could be extended outward to cover all workers below a certain benefits floor. And so it should, because the work of the future is much more likely to be a catch-as-catch-can, technologically mediated affair than a return to the union contracts of midcentury American industry.

Shared Security Accounts could track a variety of benefits, including:

■ portable

■ health

■ prorated

■ disability

Portability ensures that benefits are not tied to any particular job or company, but that workers own their own benefits. Even if they work multiple jobs in a single day for multiple employers, benefits are pooled into a single

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insurance contributions insurance ■ workers’ compensation insurance ■ unemployment insurance ■ retirement contributions ■ paid sick leave ■ paid vacation leave ■ paid family leave In terms of exactly how portable benefits are implemented, we should stress that this is

a moment for a big “what” and a small “how.”

We believe the system will provide the best outcomes if executed in certain ways, but it’s more important that cities and states quickly begin to experiment with how to implement portable benefits for their workforces.

That said, we propose that cities and states craft legislation that sets out the structure of the system, including a mandate for companies to pay into workers’ benefit accounts at prescribed rates. A state or municipal mandate, or industrywide agreement, is more or less required to make this system work; anything less leaves loopholes for less scrupulous companies to exploit.

We intentionally are not suggesting an initial push for national legislation, because, as the Fight for 15 and the path to legalized samesex marriage have demonstrated, the real work of moving America forward in the 21st century has begun at the state and city level. It’s not just blue states moving forward, either: Arizona voters approved a statewide $12 minimum wage while also voting for Donald Trump at the top of the ticket. It’s obviously best to enact portable benefits at the state level to avoid tricky coverage issues (such as, for example, Lyft drivers taking fares into a neighboring city that does not support a portable benefits program). But where state leaders are unwilling to experiment, it must fall on the most forward-thinking cities to forge a path that others will surely follow.

We believe that Shared Security Accounts would best be administered by nonprofit benefit providers whose qualifications are determined by criteria written into statute.

We imagine that any number of existing nonprofit organizations, including unions, professional societies, civic groups such as the AARP, and credit unions will have a vested interest in competing in this space. These providers would have to legally agree to stringent conflict-of-interest rules ensuring that they operate with the best interests of beneficiaries in mind, and that they are insured to possess sufficient cash reserves to pay out the benefits that workers have already earned.

The benefit providers will compete on an open exchange for the business of individual workers, who will choose the provider that offers the suite of benefits that most appeals to them. To take advantage of pooled insur-

ance rates, however, benefits such as health insurance, disability insurance, and workers’ compensation should be mandatory.

Once they pass the regulatory hurdles, these benefit providers will be accountable to workers as their customer base. If workers are not satisfied with the quality of their pension plans, they should be able to easily move their account to another provider on an annual open-enrollment basis, with all current benefits intact. This will ensure that providers will advocate for and efficiently provide the highest-quality package of benefits for their workers. Provider organizations could choose to contract with financial institutions and insurers as vendors, but we do not foresee that most of these stringently profit-driven companies will meet the necessary criteria to place beneficiaries’ interests before profits.

How would qualifying organizations provide portable benefits that significantly match current offerings for W2 workers? Certain benefits are already available as products that would function well in a portable system, including health care and retirement plans. Some, such as disability insurance and workers’ compensation, are now virtually impossible to secure as an individual, and would require new products to be created by insurance companies or innovative startups. Others, such as paid leave, would need to be conceptualized from scratch as cash accounts or accruals that could be withdrawn as cash with the plan administrator’s approval.

Obviously, Shared Security programs would not replace preexisting public benefits like Social Security, Medicaid, and Medicare. In time, as local portable benefits plans establish themselves, it will become clearer how to thread national social safety-net programs— and more complex national issues that are currently in flux, like Obamacare—into a Shared Security program.

Each worker will be provided with a Shared Security Account card or number, which they will then provide to each employer. Whether they work for one employer per week or a dozen, all their benefits—vacation time, sick time, retirement, health insurance contributions—land instantly in a single, easy-to-manage account. We imagine that workers will be able to access their benefit options through an online portal that helps to guide them through

their choice of provider, benefit types, contribution and withdrawal options, and more.

Benefit providers can resolve the portability and universality problems of a portable benefits system, but what about proration? How much would this amount total for each hour worked?

Our internal analysis of the cost of providing basic benefits in Washington state yielded an average figure of between $1.68 and $3.54 per hour, depending on the worker’s age and occupation. This calculation includes the cost of the most critical social safety-net components, in our opinion: Sick leave; workers’ compensation insurance, offered by the state of Washington; and 60 percent of the most inexpensive bronzelevel health-care plan on the Affordable Care Act exchange. (Our sick leave calculation is based on the City of Seattle’s innovative paid sick leave legislation, which requires that large employers fund one hour of paid sick time for every 30 hours an employee works.)

Another metric comes from the conservative Heritage Foundation, which estimated

contractors and then circle outward to more traditional employees. There are currently a variety of limitations on state or local changes to retirement and health coverage requirements for W2 employees. We also believe that it makes sense to bring contingent workers closer to parity with traditional W2 workers as a first step, as contingent workers usually lack employer contributions for Social Security and Medicare, health insurance mandated under the Affordable Care Act, paid sick leave in states that require it, workers’ compensation, and other crucial benefits. However, in the long run we would like to see a mandated benefits floor that applied to every worker, to reduce the games that companies play with worker classification and ensure that workers are treated equally under the law, no matter their job or sector.

Basic benefits are critically important for American workers, but benefits on their own are meaningless without setting an enforceable floor for the minimum labor standards that all employers must meet, including:

A Shared Security System would begin with 1099 workers; a universal program would keep employers from denying workers benefits by misclassifying them. last year that employers save about 20 percent on their total payroll costs by shifting workers from W2 employment to 1099 employment.

That works out to $3.61 per hour for employees earning a $15 hourly wage, and includes the cost of unemployment insurance, payroll taxes, and $2.27 per hour in Affordable Care Act penalties for uncovered employees.

No matter what the magic number is, it’s important to remember that the established amount of deposit for portable benefits accounts is a floor, not a ceiling. While many present-day low-wage employers will undoubtedly pay the bare minimum in benefits, many other employers—those who prefer to invest in a long-term high-quality workforce—can offer better benefits like higher 401(k) pay-ins and higher-quality health insurance to desirable employees.

Depending on the specific legislation passed by each state or municipality, the Shared Security System would likely begin with 1099

Paid leave. Employers will be legally obligated to provide time off to use the leave benefits accrued in portable benefits accounts, without intimidation or retaliation.

Livable minimum wage. The federal minimum wage should be raised to $15 an hour and indexed to inflation.

Anti-discrimination and worker protections. The federal government should pursue

policies that create real wage parity between women and men and properly enforce anti-discrimination provisions. Reasonable health and safety standards should be enforced regardless of workplace or worker classification.

Health insurance. Obviously, the federal government also needs to improve health-care policy to the point where every American, regardless of employment, has health insurance. Single-payer health insurance by a government or government-related source would help to resolve issues around the skyrocketing costs of care in the

winter 2017 The American Prospect 95

United States and provide true universal access.

For now, we incorporate health insurance into our model because it has historically been tied to employment for U.S. workers.

We’ve already seen some motion on

portable benefits. Senator Mark Warner, a Virginia Democrat, has prompted the federal government to collect more information about the on-demand economy. In a recent op-ed in The Washington Post, Warner recognized that “[m]odern American capitalism is not working for many Americans,” and recommended that “we should be encouraging more innovation and experimentation around portable benefits—a 21st-century safety net tied to the individual, not the job.”

The Republican Party also included a provision in their 2016 party platform that said changes in technology and the workplace mean that employees need “portability in pension plans and health insurance.”

Another leader on the effort has been Sena-

ernment must do all that it can to update the safety net and ensure that benefits are flexible, portable, and comprehensive.”

Critics of this idea argue that prorating benefits and tracking hours will be difficult. Yet Starbucks utilizes scheduling software that can plan a shop’s schedule months in advance down to the last second, while freelancers have access to powerful software like Harvest that easily allows them to track a complex set of tasks for a variety of employers.

Then there are those who argue that paying a living wage and benefits is impossible. But if you think that’s impossible, imagine running a business with no paying customers; a modern economy can only thrive when all participants are able to be consumers. Strong economies are completely compatible with high wages and labor standards—the minimum wage in Australia is $17.70 an hour, while fast-food workers make a minimum of $20 an hour in Denmark, and the average autoworker in Germany made more than $67 per hour including

Shared Security pilot programs will be drafted as early as 2017 by some localities and states. Like the $15 minimum wage, portable benefits won’t begin at the federal level. tor Elizabeth Warren. “For many,” Warren said in a speech at the New America annual conference in 2016, … the gig economy is simply the next step in a losing effort to build some economic security in a world where all the benefits are floating to the top 10 percent. … Workers deserve a level playing field and some basic protections, no matter who they work for, where they work, or how the law classifies them. They deserve a strong safety net, dependable benefits, and the chance to bargain over their working conditions— that’s the basic deal. And that’s the deal that is necessary to restore a strong and sustainable American middle class.

Hillary Clinton also enshrined the concept in her presidential platform, noting that “as the nature of work in America changes, the gov-

96 WWW.Prospect.org Winter 2017

salary and benefits, nearly twice the $34 average in the United States.

Others charge that this plan will only encourage automation. We say, try selling burgers to your burger-flipping robots.

Finally, there are those who claim that the old employment agreement is the only way forward. But we must reluctantly admit that the old employment contract of the 20th century isn’t coming back.

One argument that few dispute, regardless of party affiliation, is that the current social contract between companies and workers isn’t working. Inequality is rising, growth is not where it should be, populist unrest is increasing. Clinging to a system of labor laws that originated out of the Great Depression— built for an industrial economy that no longer exists—is not a viable strategy.

Most policy experts believe that something like a Shared Security System is coming. Some

pilot programs will be sketched out as early as 2017 by state and local governments. The only question is how we build this system. Do we choose to create a system that gives outsize power to large employers, casting a century of labor standards to the dustbin of history? Do we attempt to regulate new-economy employers into behaving as though they’re the factories of the mid-20th century? Neither path works. Instead, we must create a system that benefits both employers and employees.

The Shared Security System balances the needs of workers and employers because those needs are not, and have never been, at odds.

The trickle-down economics story, which pits owners against workers as parasites who suck profits dry, is a fact-free caricature. Employees are not regrettable expenses to be strip-mined and cast aside; they are problem-solvers, teammates, brand ambassadors—and they are customers, too.

In the proposal we’ve outlined, government does what it does best—establishes a floor of basic rights and standards on which businesses can innovate—and in so doing creates a civic infrastructure for benefit providers to advocate for their workers. It also removes the complex burden for employers to manage benefits, an ill-fitting relationship born out of necessity almost a hundred years ago.

Many have told us that this concept reimagines too much of the contract of American work.

But if the election of Donald Trump does nothing else, it should inspire progressives to think bigger than just tinkering with decades-old social programs ill-fitted to our modern economy. Progressives must create and promote new, nimble programs that help America to evolve as a nation and an economy. Our goal is not to make America great again; it is to make America better than ever as we transition into a dynamic 21st-century economy.

Nick Hanauer is a Seattle-based entrepreneur and venture capitalist, and the founder of Civic Ventures, a public-policy incubator.

David Rolf is president of an SEIU local in Seattle and an architect of SEIU’s home-care worker and the first successful $15 minimumwage organizing campaigns. He is also the author of The Fight for Fifteen: The Right Wage for a Working America.

Unions Unions in the Precarious Economy How collective bargaining can help gig and on-demand workers

By Kat he rine V.W. S t o ne

E

mployers are increasingly dispensing with fixed working-time schedules, and turning to on-demand, just-in-time, and “gig” work instead.

Some on-demand working time is involuntary: An employer imposes a fluctuating schedule on a worker who would prefer to have regular hours. Involuntary scheduling is becoming increasingly common in the retail, restaurant, hotel, and janitorial sectors, and even in some professional occupations. Other on-demand work is voluntary in the sense that workers choose their own hours or projects, but employers do not provide the benefits of employee status. These workers provide services that are often coordinated by computer platforms such as Uber, TaskRabbit, Mechanical Turk, and Handy. The nominally voluntary nature of their work schedules conceals a disparity of bargaining power, which tends to favor employers.

On-demand workers do not fit the mold of regular, full-time employees. Some have multiple employers, often with ad hoc schedules.

Some work off-site, or move from site to site, and never even see their employer. Many work for subcontractors on a long and complex supply chain. Others are regularly on-site at a particular workplace and have specified hours but are classified by their employer as “independent contractors.”

The various forms of on-demand work tend to defeat the protections of our system of labor regulation, which assumes that employees have regular payroll employment. Seemingly, unions are also not much help, since they, too, are based on the assumption of regular jobs.

But if we dig a little deeper, there is a long history of unions protecting their members from employers’ efforts to force workers to bear all the risks and costs of fluctuating demand. This

is true in industries as varied as construction, airlines, hotels, and entertainment.

Some of these are unions that organize and collectively bargain under the terms of the National Labor Relations Board. But others, in the world of so-called alt-labor, use worker centers, associations, and other worker-empowerment strategies that are not technically unions.

If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important.

The Challenge of Just-in-Time Scheduling

Just as airlines adopted variable pricing in the late 1980s to fill all the seats on planes, firms in the retail, restaurant, and hotel sectors in the last ten years have adopted complex staffing algorithms to predict customer flows and minimize personnel costs. Large companies in those sectors use complex software provided by specialty workforce management firms to predict their staffing needs so that they never have more employees than necessary on any given day. As a result, those employers give their workers schedules that can change on short notice. One leading staffing firm claims it can predict staffing demand in a retail store down to 15-minute intervals so that there is never excess staff, even for a few minutes.

With just-in-time scheduling, an individual worker in any given week could work five hours on Monday, four hours on Tuesday, none on Wednesday, seven on Thursday, none on Friday or Saturday, and four on Sunday. Moreover, that individual might not know until the prior week what her schedule will be for the week coming up. A New York Times editorial in 2015 reported that “[a]ccording to federal data, 66 percent of

food service workers, 52 percent of retail workers and 40 percent of janitors and house cleaners have at most a week’s notice of their schedules.”

Just-in-time scheduling is brutal for employees. Employees in the retail sector complain that they cannot plan their lives. It becomes impossible to arrange child care when one doesn’t know what hours one will be working. Moreover, because most retail, restaurant, and hotel work is part-time and low-paid, those workers often want to take second jobs or enroll in training programs but cannot do so because of their constantly shifting and unpredictable hours.

Just-in-time scheduling is particularly widespread among younger workers. A 2014 study of adults between the ages of 26 and 32 found that 41 percent of hourly workers reported that they only learn of their weekly work schedules one week or less in advance, and the majority have schedules fluctuate each week. Low-paid part-time workers have the highest likelihood of experiencing short notice and fluctuating hours. The occupations in which workers were most at risk were food-service workers (90 percent), retail workers (87 percent), home health-care workers (71 percent), and janitorial and housekeeping workers (66 percent).

Some worker advocacy groups, including the Retail Action Project, Jobs With Justice, and the National Partnership for Women and Families, have attempted to address the problem of short and unpredictable hours by promoting fairscheduling legislation at the local, state, and federal level. The City of San Francisco adopted an ordinance in 2014 that requires employers to give employees two weeks’ notice and to compensate the workers for last-minute changes.

Proposed federal legislation, the Schedules that Work Act, would require employers in the retail, hotel, and cleaning industries to give work-

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ers two weeks’ notice, and to pay the affected employees for changes on short notice.

Business groups oppose fair-scheduling legislation, claiming it deprives them of necessary flexibility. Because business groups may well defeat fair-scheduling legislation in all but the most progressive localities, it is important to consider another approach.

Unions have long been a force for greater worker control over scheduling.

Unions and Schedule-Bidding

Airlines have unpredictable and frequently changing demand for workers. Weather conditions and mechanical problems can cause flight cancellations or delays on very short notice. Moreover, airlines frequently make adjustments to their flight routings and equipment deployment, so staffing levels fluctuate.

In the face of the airlines’ variable staffing needs, the flight attendants unions, when they first formed in the 1940s, devised a jobbidding system to give the workers some stability in their work schedules. Under the bidding system, the airlines are required to prepare a roster of assignment schedules each month that are termed “lines of flying.” The lines are composed of multiple “trips”—flight sequences that begin and end at the worker’s home base.

The sequences can be simple round trips, or they can be a sequence of flights that spans several days and involves flights to a series of cities. The workers are presented with the available lines each month, and bid for the ones that offer the schedules they prefer.

Flight attendants who want to be home every night bid for lines that have flights that leave and return on the same day, such as an East Coast shuttle. Those who want to be home for a special occasion, such as a child’s birthday, or who want to take a class that meets on a certain day each week bid to have those dates off.

Some might want to work early in the month and have time off later in the month. Each can bid for a schedule package that meets his or her priorities. Also, some lines involve more hours of work than others and offer additional pay. Thus, those who want to maximize their month’s earnings can bid for the more lucrative trips. All the bids are submitted each month and awarded on the basis of seniority.

Airlines also need to have some workers on

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call for last-minute changes. The unions’ contracts provide for some lines to include specified times a flight attendant will be on call, for which they are paid a minimum hour guarantee when they are on call. The contracts limit the amount of on-call work.

The flight attendants unions’ schedule-bidding system has worked for many years, with occasional negotiated modifications. It has enabled flight attendants to achieve predictability in their schedules and plan their lives accordingly, even when the employers’ staffing needs are unpredictable and variable, while serving the airlines’ need for reliable staffing.

The point is that the entire burden of fluctuating schedules is not placed on the workers.

The flight attendant bidding model could be adapted to other industries that have variable staffing needs. For example, retail stores could offer their workers an array of specified schedule options each month, for which the workers would bid. Some schedule options could include a limited amount of additional “on-

employees. Yet, unlike conventional independent contractors, gig workers are subject to the selection, direction, monitoring, and discipline of their employing entity.

There is currently litigation in many state and federal courts on the issue of how gig workers should be classified. In June 2015, the California Commissioner of Labor found that an Uber driver was an “employee” and entitled to the benefit of state labor laws requiring expense reimbursement. In a similar vein, in the summer of 2016, the New York Labor Department ruled that two Uber drivers were entitled to workers’ compensation under New York law. Several cases are also pending in federal courts on whether gig workers are employees or independent contractors under federal employment laws. There are also cases pending before the National Labor Relations Board that pose the question of whether Uber drivers or Postmates delivery workers are entitled to the National Labor Relations Act’s protection for engaging in collective action. Last October, the

In the airlines, a well-established job-bidding system gives unionized flight attendants control over their schedules— even as customer demand and flight loads vary. demand time”—a pre-specified time period during which a worker would have to be available if called in with 24-hour notice. The workers who had schedules that include on-demand time would be paid their regular pay if they were called in, or they would be paid something for the hours they were required to be on demand.

This would enable retail workers to plan their lives and yet enable the retailers to have the flexibility they claim they need. The same computer algorithms that make it so easy for employers to vary workers’ schedules could be modified to give workers more of a say. This is not a technical issue, but a question of bargaining power.

Unions for Gig Workers

Gig work raises many difficult issues under labor laws. Because these workers choose their hours and provide their own tools (such as Uber drivers’ cars), the companies claim the workers are independent contractors, not

employment tribunal in the U.K. ruled that Uber drivers are employees and entitled to minimum wage, rest breaks, and holiday pay.

If gig workers in the United States are found to be independent contractors rather than employees, they cannot benefit from federal and state laws guaranteeing overtime pay, minimum wages, expense reimbursement, rest breaks, healthy and safe working conditions, workers’ compensation, unemployment compensation, employer contributions to Social Security, protection against discrimination, or the right to form a union. Moreover, as independent contractors, any collective action they might take to change their working conditions could make them liable for antitrust violations.

Although gig workers value control over their time, many have raised serious complaints about their jobs and working conditions. For example, despite earning decent money at the outset, many Uber drivers complain that after

six months of driving 400 to 500 miles a day, their cars require such expensive repairs that their actual earnings are close to minimumwage level. Drivers also complain that Uber periodically cuts the rates it charges customers and increases the percent it takes, thereby reducing drivers’ incomes. They also complain that the customer ratings system is tyrannical, forcing them to accommodate rude, abusive, and drunken customers just to avoid getting penalized for a low rating.

Some labor policy analysts and academics have argued that workers who get task assignments from computer platforms represent a new type of worker that fits neither the category of employee nor of independent contractor. For example, Seth Harris and Alan Krueger used the example of Uber drivers to argue that there should be a new category called “independent workers” for platform workers, who would be entitled to some of the rights but not all the protections available to employees. Ross Eisenbrey and Lawrence Mishel of the Economic Policy Institute disagree. They challenge the Harris-Krueger analysis and maintain that Uber drivers fit within the existing categories of employees and should therefore come under existing labor laws. Former NLRB General Counsel Craig Becker argues that adding a new category such as independent worker does not solve any problem, but rather compounds the classification problem. If there were three categories instead of two, he contends, there would be more disputes and litigation about which category an individual working relationship fits.

The controversy over the proper classification of Uber drivers casts a shadow over efforts for all gig workers to unionize. If the litigation is resolved in favor of employee status, however, there are models of unionization and organization that could preserve the drivers’ control of their working time and freedom to drive for more than one service, yet also address their other concerns.

Embedded Contract Bargaining

Gig work has, in fact, a lot in common with project work by craft workers in fields such as construction, who are hired for a specific job but may not have an ongoing relationship with the entity that employs them. In the building trades, a union contract does not guarantee

hours of employment, but it does govern wages and benefits, as well as apprenticeship and other elements of work.

A successful, lesser-known model for sporadic but recurring project work can be found in film and television industry trades, such as lighting design, sound engineering, or on-location transportation. The International Alliance of Theatrical Stage Employees (IATSE) engages in a form of collective bargaining that I call “embedded contract bargaining.”

It works as follows: The union negotiates a Basic Agreement between an IATSE local and an association of theaters that spells out a few terms of the labor-management relationship, and for certain others, requires employees covered by it to make their own deals. The Basic Agreement includes union recognition, as well as terms such as health and safety at theater workplaces, employer provision of housing during out-of-town production assignments, transportation costs for out-of-town locations, and employer contributions to the joint pension and health funds. It also sets minimum pay per day worked. However, the agreement contains no seniority, just cause, or arbitration provisions—no provision for job security at all.

To the contrary, it assumes that workers will be hired on an as-needed basis, working from job to job, sometimes more than one job at a time.

One significant aspect of the IATSE Basic Agreement is that it includes another embedded agreement, a one-page agreement, negotiated between the theater employer and the individual employee, that sets the level of pay and other terms relating to compensation for the employee on the specific job. The embedded agreement also authorizes a dues check-off on behalf of the relevant IATSE local.

Such contracts do not guarantee jobs, nor a specific level of income, but the minimal terms and area-wide benefit fund ensure workers a living wage and decent benefits. Embedded contract bargaining, in this model, could provide some protection for labor standards for platform and gig workers, if they could amass enough power to compel employers to sign agreements.

Associational Unions

Even if gig workers are not ultimately determined to be “employees,” there have been attempts by drivers to form organizations

that give them some elements of union representation. For example, in New York City, a large number of Uber drivers have joined the New York Taxi Workers Alliance (NYTWA), an organization that maintains a school for drivers, assists drivers with traffic tickets, and lobbies the Taxi and Limousine Commission on behalf of drivers. The NYTWA is engaged in litigation seeking to get Uber drivers classified as employees under both federal employment laws and the National Labor Relations Act. In December 2015, the City of Seattle enacted an ordinance to permit for-hire drivers to unionize and bargain collectively for better compensation rates and other contract terms.

The stated goal of the ordinance is “[l]eveling the bargaining power between for-hire drivers and the entities that control many aspects of their working conditions.” It is based on the city council’s finding that: Business models wherein companies control aspects of their drivers’ work, but rely on the drivers being classified as independent contractors, render for-hire drivers exempt from minimum labor requirements that the City of Seattle has deemed in the interest of public health and welfare, and undermine Seattle’s efforts to create opportunities for all workers in Seattle to earn a living wage.

The Seattle ordinance does not decide the question of whether the drivers are independent contractors or employees. Rather, it establishes a procedure for drivers to select an exclusive driver representative (EDR) who will be the sole representative of for-hire drivers operating in the city for a particular ondemand company. The director of the city’s Finance and Administrative Services receives petitions from groups seeking designation as the EDR , and determines whether a particular company has sufficient support among drivers for that company to be so named. Once an EDR is certified, the EDR and the company hiring those drivers—the “driver coordinator”—are required to meet and bargain over vehicle standards, safe driving practices, the nature and amount of payments to be made, minimum hours of work, and other conditions. After reaching agreement, the

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parties submit the agreement to the director for review, and if it is found to be compliant, then it is final and binding on all parties. If the parties fail to agree, then the ordinance provides for interest arbitration.

Last March, the U.S. Chamber of Commerce challenged the Seattle ordinance in court. In its complaint, it contended that the ordinance violated the Sherman Antitrust Act by authorizing for-hire drivers to form illegal cartels, and that it violated the National Labor Relations Act by regulating matters that lie within the exclusive jurisdiction of the National Labor Relations Board. On August 9, a federal district judge dismissed the lawsuit on the grounds that the ordinance had not yet been implemented so the chamber had not been harmed by it, and hence lacked standing to sue.

The judge left the door open for the chamber to re-file the suit at a later time.

The City of Seattle is currently drafting regulations for the implementation of the ordinance, so it has not yet gone into effect. Once it does, litigation will undoubtedly resume. The antitrust and preemption issues posed by the ordinance are complex, and it is not clear how they will be decided. However, if the ordinance is ultimately upheld, it opens the door for a new form of unionism that could be meaningful for gig workers.

Freelance Workers

Yet another group of voluntary on-demand workers are freelancers. Unlike gig workers, freelance workers are truly independent contractors. They create a good or a service at their own expense, find a customer, decide what to charge, and keep the proceeds. They work for themselves and do not usually have employees. They include commercial artists, writers, editors, computer programmers, and other technological fields.

Despite their autonomy, freelance workers experience several kinds of problems. First, as individual producers, they have difficulty obtaining pension and affordable health insurance because they are not eligible for favorable group rates. Second, as independent producers, they rely on the integrity of their contracting counter-parties to receive their pay. The most prevalent complaint of freelance workers is that the entities with which they contract

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often delay paying them or fail to pay altogether. Yet freelance workers do not have a simple way to recover their fees. Because they are not “employees,” they are not covered by the Fair Labor Standards Act. While they can go to court for breach of contract, doing so is expensive, time-consuming, and often sullies their reputation and prevents them from getting future work. Furthermore, they often work without a written contract, making it practically impossible to prevail.

The Freelancers Union, based in New York City, has taken the lead in addressing these concerns. The Freelancers Union is not actually a union, but is a worker center that advocates on behalf of freelance workers. One of its primary activities is operating a health insurance and pension fund specifically designed for freelancers, giving them access to favorable group insurance rates and enabling them to obtain affordable social protection.

The Freelancers Union also lobbies for legislation on behalf of freelancers. On October 27, 2016, it achieved a major victory in the New York City Council with the enactment of the Freelance Isn’t Free Act. The act provides that anyone utilizing a freelancer’s services must give them a written contract if the job is for more than $800 over four months, and that anyone who fails to pay on time is liable for double damages.

Although legislation like the Freelance Isn’t Free Act is an enormous step forward for freelance workers, it may not solve all the problems of nonpayment. To benefit from the act, freelancers still must go to court to collect their fees, and many may be reluctant to do so because of time, expense, and reputational considerations.

One service a workers’ association could provide to freelance workers would be to operate their own dispute resolution system to provide a fair and accessible forum for processing claims. An example can be found in the Independent Film and Television Alliance (IFTA), an organization that includes screenwriters, film producers, directors, and others in the industry. IFTA is a trade association and not a union. It lobbies on behalf of the independent film industry, runs an annual marketplace where filmmakers, film producers, and film marketers come together, and operates an

arbitration system for resolving disputes within the industry. IFTA has developed detailed arbitration procedures and maintains a roster of carefully selected arbitrators from around the world. It acts as the administrative agent for the arbitrations—receiving pleadings, setting timetables, deciding discovery requests, and resolving disputes about how the procedures should operate. This service is invaluable to its members because it enables them to resolve disputes without generating the expenses or ill-will that would otherwise result from a formalized legal proceeding. Many of the organization’s members claim that the dispute resolution system is the primary benefit the organization has to offer. If organizations of freelance workers offered fair, inexpensive, and expeditious arbitration to resolve payment disputes, it would help make a reality of the fact that “freelance isn’t free.”

The rise of new types of work relations poses a challenge to our existing model of unionization. However, new forms of organization can be developed, and older ones restructured, to address today’s transient, casualized, and precarious workforce. Organization is necessary not only to protect the individuals involved, but also to constitute a voice for workers in the political process. As the experience with the airlines, entertainment unions, and unions representing freelancers has shown, the idea that new forms of technology such as digital platforms must invariably weaken worker bargaining power is a convenient myth. Efforts to convert employment to on-demand work is an old story, and workers regain rights whenever they are strong enough to organize.

With the very rich becoming ever richer, money translates into power. The tilt of income and wealth has gone hand in hand with banking deregulation, tax code changes, relaxation of antitrust laws, and the weakening of worker protections. The labor movement is the only institution with the potential to counter this power shift and provide new forms of worker protection to match new forms of work organization.

Katherine V.W. Stone is a professor at the UCLA School of Law, and author of From Widgets to Digits: Employment Regulation for the Changing Workforce.

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Class Act Where Bruce comes from, and how he got here

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Los Angeles Memorial Coliseum, September 1985

ords flowed like a storm surge, crashing into one another with no regret.”

That’s Bruce Springsteen in his new memoir, writing about his first album, Greetings from Asbury Park, N.J., but he might as well be writing about the memoir itself. Springsteen the musician has also been an artist of the word, and this book confirms his artistry in that second medium. Few literary genres can be as inane as stars’ autobiographies, and while Born to Run has enough concert anecdotes to satisfy the curiosity of any fan, it is a sustained, satisfying, and thoroughly readable self-portrait.

Like other autobiographies that put the protagonist in a wider context, Springsteen’s book is also the history of a time and a place, beginning with his hometown, Freehold, New Jersey, and the houses of families like his own—places where, he writes, “people make lives, suffer pain, enjoy small pleasures … and do their best to hold off the demons that seek to destroy us.” Music is Springsteen’s way of guiding us into this world, but this world is also a key to understanding his music. The ostensible euphoria in so many of his songs—cars, girls, the beach, the night—gains depth and ambivalence when we see the people in his lyrics against the background of their working lives and communities.

Sometimes they escape from that world (“I took a wrong turn and I just kept going”) but are pulled back if not in fact, at least in memory and feeling, by inescapable “ties that bind.”

Here, in a perfect interweaving of musical and sociological analysis, Springsteen writes about the people he grew up with:

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It took the dark, bloody romanticism of doo-wop, the true-to-life grit and soul and just that small hint of possible upward social mobility embedded in Motown to define what this crowd’s lives were all about. Except for their Top 40 hits, the bohemian poses of the Stones or their other sixties brethren had little relevance to these kids’ experience. Who could afford that? You had to fight, struggle, protect what was yours, remain true to your crew, your blood, your family, your turf, your greaser brothers and your country. This was the shit that would get you by when all the rest came tumbling down— when the bullshit was washed away in the next fashion trend and your gal was pregnant, your dad went to jail or lost his job and you had to go to work.

Later, with the unabashed awe of a teenage fan getting to meet his idols, Springsteen tells his readers about his encounters, friendship, and collaborations with the Rolling Stones. They are a measure of the road he has traveled: “the acne-faced fifteen-year-old kid with the cheap Kent guitar from Freehold, New Jersey,” who “ended up standing between Mick Jagger and George Harrison, a Stone and a Beatle.” “My parents were RIGHT!” he exclaims. “My chances were ONE , ONE in a MILLION, in MANY MILLIONS. But still … here I was.”

A satisfying autobiography, besides situating the protagonist in a rich context, should be a narrative of change, an explanation of that road traveled. Springsteen’s most memorable lines, the opening verse of “The River,” seem to deny this possibility: “I come from down in the valley / Where mister when you’re young / They bring you up to do like your daddy done.” In this intimate song about his own origins and the lives of his sister and brother-in-law, even the “possible upward mobility” imagined in Motown music is a “dream” that turns into a “curse.” Yet, on listening again to “The River” after reading Born to Run, one senses a more personal layer of meaning. He tells us

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about the valley where “I come from,” the place where he was born, raised, and taught, but now he is “here,” and this combination of familiarity and distance enables him to sing and write about other people’s lives that might have been his own with a sensitive realism unattainable to those who remain caught inside.

How did it happen? “I was not a natural genius. I would have to use every ounce of what was in me—my cunning, my musical skills, my showmanship, my intellect, my heart, my willingness—night after night, to push myself harder, to work with more intensity than the next guy just to survive untended in the world I lived in.” Like Edison, who is supposed to have said that genius is 1 percent inspiration and 99 percent perspiration, Springsteen writes: “I’ve left enough sweat on stages around the world to fill at least one of the seven seas; I’ve driven myself and my band to the limits and over the edge for more than forty years.” “I always love the feel of sweat on my shirt,” he sings.

And sweat, writes British cultural critic Simon Frith, is “the basic sign of Springsteen’s authenticity.”

This is the working-class ethic turned into music (the sound of his early band, the aptly named Steel Mill, was “blue-collar, heavy music with loud guitars and a Southerninfluenced rock sound”). But Springsteen’s tools include intelligence too—an intelligence, moreover that is not only his own, but a shared cultural capital, sustained and circumscribed by his blue-collar roots. “My Asbury Park,” Springsteen writes, “was an island of misfit, blue-collar provincials. Smart, but not book smart.” Not smart enough to read between the lines of his first manager’s manipulative deal, but smart enough (and he did become booksmart, too) to keep growing and say goodbye to all that.

Yet, sweat and smarts are not all. They do not explain how Bruce Springsteen became that one in many millions who made it. It is always misleading to try to explain an artist’s achievement by his life (the recent controversy over Elena Ferrante’s identity is a case in point). Events in

“I always love the feel of sweat on my shirt,” Springsteen sings. This is the workingclass ethic turned into music.

Born to Run

By Bruce Springsteen

Simon and Schuster

the artist’s life may at times reveal the occasion that originated the art, but not how that occasion became art.

We may discover the seeds of the song “Wrecking Ball” (“all our little victories and glories have turned into parking lots”) when we read: “My house, my backyard, my tree, my dirt, my earth, my sanctuary would be condemned and the land sold, to be made into a parking lot.” Or we may recognize “Cautious Man” (“Alone on his knees in the darkness for steadiness he’d pray / For he knew in a restless heart the seed of betrayal lay …”) in a nocturnal scene of doubt and self-doubt after his first marriage. Yet, between the lived experience and the created work there is an intangible something that no biography can account for. The 1 percent that Edison called “inspiration” and Springsteen calls “talent” remains a mystery. The role of art, to be sure, is not to provide answers, but to raise questions and leave them open. Our respect for all kinds of art, “highbrow” or “lowbrow,” requires, in the words of country artist Iris Dement, that we “let the mystery be.”

On a more tangible plane, one mark of the road traveled is the gap between Springsteen’s blue-collar background and the much broader composition of his audience. One does not become a planetary icon by addressing a blue-collar audience exclusively, and there are many reasons why middle-class listeners (this writer included) should respond to the triumphant sound of his music and its message of hope and belief.

As George Lipsitz pointed out many years ago, the very history of rock and roll is the history of how a proletarian, marginal form of expression rose to occupy the center of the cultural mainstream. Sometimes, the mainstream audience forgets where the music they enjoy came from, and simply responds to its life-giving power without a sense of its history. Yet, one of Springsteen’s achievements is how he manages to weld so much heterogeneity into a shared sense of community in his concert audiences and, at least to some extent, in his fans. Which is perhaps why in this autobiography he always writes about his audience in generic terms,

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without showing any interest in its composition.

This ambivalence also reflects the changes in Springsteen’s own class position and personal experience (after Born in the U.S.A., he devoted three albums to the complexities of human relationships with hardly any class reference). Springsteen has always spoken from where he stood.

As he got older, he never pretended he was forever young, and when he moved up from the working class he never feigned that he was still part of it. Yet, to paraphrase his song about steelworkers in deindustrialized Youngstown, he is now “rich enough” but still remembers their names.

Throughout his career, he has always retained and conveyed a sense of emotional and intellectual closeness to the much-maligned white working class. Springsteen’s subjects are supposed to be Donald Trump’s constituency, but he speaks a different language to them and offers different ways of facing their problems (also, as opposed to Trump, his people do include immigrants). During the Kerry-Bush campaign, he was one of the very few American voices who talked about “economic justice.” Springsteen

Beloved by European progressives, Springsteen manages to bridge their passionate love for American culture and equally passionate dislike of American politics. Here he performs before a crowd of 100,000 at the site of the ancient Roman Circus Maximus, July 16, 2016.

is never ideological, yet his politics are clear and consistent: unions and food banks, support for veterans as an anti-war position, an early awareness that black lives matter, a male antichauvinist sensibility, solidarity with immigrants and their demands.

The book does not detail the growth of this progressive conscience.

Springsteen comes from an antiintellectual environment, yet a good deal of his thought emerged from the anti-war, non-racist youth culture of the 1960s, combined with a workingclass kid’s awareness of how the antiunion policies of local corporations damaged the lives of people like his own father. Later, his manager and sometimes mentor Jon Landau would help him put it all into shape and expand his native “smarts” into “book smarts” by providing him with the necessary cultural background and “language for discussing [his] ideas and the life of the mind” and for integrating rock and roll’s “primal world of action” with “the world of thought and reflection.”

Interestingly, in his songs about American workers Springsteen never seems to evoke nationalist protectionist panaceas. In fact, one turning

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point in his development was Springsteen’s internationalization. He has often mentioned in interviews that it was his first experiences abroad that sent him back to reading American history and thinking about American identity. He has become an even bigger star for European audiences (especially in countries like Spain, Sweden, and Italy) because he manages to bridge the big dilemma of European progressives: a passionate love for American culture (music, film, TV, literature) and an equally passionate dislike of American politics.

As an Italian, I share with other Europeans a different vantage point from that of Springsteen’s American fans. Here’s an American who in our most beloved American form of expression—rock and roll—voices some of our concerns about American society and America’s role in the world. One cannot help but be intrigued by the sight of 100,000 Romans in the Circus Maximus raising their fists and singing happily that they are “born in the U.S.A.” Yet we have an unmistakable feeling that he is also singing about us. The America that Springsteen’s worldwide fans love is not the physical and tangible United States of Ronald Reagan, Donald Trump, or even Hillary Clinton, but an ideal place of the mind—“not another country,” as the Italian writer Cesare Pavese put it in the 1940s, “but the great theater on which, more frankly and openly, everybody’s drama [is] being staged,” allowing us to see “our own drama develop on a much larger screen.”

Pavese was referring to the writers of the Great Depression. But so was Bruce Springsteen in 2016, when in his Rome concert he took a request from a workers’ cooperative from the small town of Monterotondo, and sang “The Ghost of Tom Joad.”

Finally, one expects from an autobiography also a search for selfawareness, a dialogic exploration of one’s own subjectivity through writing. Springsteen makes an honest effort at self-discovery, and the result is occasionally predictable and even bland, but more often daring and surprising. An unexpected word returns again and again in the book: “rage.”

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It’s a rage that is bred from his childhood (“When I became of school age and had to conform to a time schedule, it sent me into an inner rage …”); is mirrored in his father’s temper (“my poor old pop tearing up the house in an alcohol-fueled rage in the dead of the night”; “all passive anger until he’d break and rage, then return to his beer and moonlike silence”); is vented in his own behavior (“I would use speed and recklessness to communicate my rage and anger”); and poisons his relationships (“I was sliding back toward the chasm where rage, fear, distrust, insecurity and a family-patented misogyny made war with my better angels”). There is also a happiness, he writes, that is “the bright brother of my depression.” Just as the euphoria of his youthful songs stands in relief against a backdrop of class struggle and family tensions, likewise the athletic and irrepressible Bruce Springsteen we see on stage has emerged from a depression that he has exorcised with psychoanalysis and medicines, and with the work of writing this book.

“I fought my whole life,” he concludes, “because I wanted to hear and know the whole story, my story, our story, and understand as much of it as I could. I wanted to understand in order to free myself of its most damning influences, its malevolent forces, to celebrate and honor its beauty. … I don’t know if I’ve done that, and the devil is always just a day away.”

Bruce Springsteen has come a long way and taken us along for the ride. Yet, the old “demons that seek to destroy us” haven’t disappeared. The hellhounds are still on the trail, and music and words are the weapons we have to hold them off.

Alessandro Portelli has taught American literature at the University of Rome “La Sapienza” and in the United States and is best known for his work in oral history. Among his books are They Say in Harlan County: An Oral History and The Order Has Been Carried Out: History, Memory, and Meaning of a Nazi Massacre in Rome. He is also the author of a book in Italian, Badlands, Springsteen e l’America: il lavoro e i sogni.

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The Banks Are Even Worse Storefront payday lenders and check cashers are all that tens of millions of Americans have. By Rena Steinzor b

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nbanked. The term has an ominous undercurrent if you assume, as most of us do, that being “banked” is essential to quality of life. An unbanked person does not have a checking or savings account and lacks access to mainstream credit cards or loans. In 2015, according to the Federal Deposit Insurance Corporation (FDIC), 7 percent of U.S. households, or about 15.6 million adults and 7.6 million children, qualified for this label. Another 19.9 percent, or about 51.1 million adults and 16.3 million children, were “underbanked,” meaning that they had an account at an insured financial institution but also used “services and products outside of the banking system.” What’s available out in the cold? Payday loans that must be repaid by the next salary check, check-cashing storefronts that charge substantial fees for instant funds, and installment debt available at off-market and sky-high interest rates.

The mainstream media outlets that have focused on this phenomenon— most notably The New York Times, The Atlantic, The New Yorker, NPR, and The Wall Street Journal—consider it a sad predicament at best and an egregious rip-off at worst. Few have delved into the economic circumstances that make payday lenders and check-cashing storefronts essential for the growing number of people living paycheck to paycheck, one unexpected medical bill away from financial meltdown. Commentators pity the un- and underbanked, despise these predatory, subprime businesses, and rarely mention the unpleasant fact that the mega-banks serving the rest of us have no interest in assuming the burden of serving 29 percent of the population.

Professor Lisa Servon’s new book, The Unbanking of America, is the exceptional piece of academic research that not only masters the statistics and the implications of an important social problem, but informs that cool account with frontline

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observations in the great tradition of Barbara Ehrenreich. A professor of city and regional planning at the University of Pennsylvania, Servon spent four months as a check casher in the South Bronx, two weeks as a teller and collections agent at a subprime lender in California, and one month staffing the Predatory Loan Help Hotline at the Virginia Poverty Law Center.

Unlike Ehrenreich, Servon was not fully underground during these assignments. Her co-workers knew who she was and what she was doing, although her customers did not. In the tradition of Nickel and Dimed, she fully internalized the texture and the weight of the tough times that drove people through the door at enterprises that charged them too much for immediate access to money. Also in the Ehrenreich tradition, Servon firmly dismisses the undercurrent of noblesse oblige and righteous outrage that plagues other reporting.

The realization that an unexpected expenditure of only a few hundred dollars would push almost half of American households into emergency borrowing or selling a possession is slowly but surely dawning on those among us who are more fortunate, accelerated by post-election soulsearching. A large proportion of this middle-class group is unbanked. When an unexpected car repair or medical bill becomes urgent, they avoid banks because they do not have an account, can’t qualify for credit, or harbor profound distrust of those institutions.

Take, for example, the true and ironic story of a 22-year-old single mother named Ariane (her name was changed in the book) who worked with Servon as a check casher in Oakland. One inauspicious day, the car she needs to bring her daughter to daycare and herself to work broke down. With no savings, no credit card, no bank account, and no family members who could give or lend her money, Ariane took out payday loans from

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five different lenders, paying an interest rate of 15 percent per $100. Ariane lives in the state that not only encompasses the sixth-largest economy in the world but has adopted the aggressive approach of prohibiting payday lenders from rolling over, or refinancing, their loans. She understood at the outset that she would not be able to pay the loans back by the next payday because her income just barely covered rent, food, daycare, and other necessities. So she repeated the process, opening a second round of loans and paying the fees all over again. At some point in the process, she closed her bank account because of the high overdraft fees she was charged when creditors tried to access the small amounts in her account. Ariane found herself in a debt cycle that seemed never-ending, owing much more than she borrowed. A second job at night helped her get a small distance ahead of the curve, but real relief came only when she managed to find a higherpaying job. Servon explains that some experts would prescribe “financial literacy” courses for people like Ariane, but that this remedy is as patronizing as it would prove ineffective because the source of her financial crisis was lack of money, as opposed to lack of common sense. Ariane fully comprehended all of the ramifications of stepping on the payday-loan treadmill.

Servon persuasively challenges the premise that members of the lower and middle classes patronize payday lenders out of ignorance. She demonstrates that they are acting rationally, given limited resources and alternatives. She freely acknowledges that payday lenders and check-cashing businesses charge exorbitant rates.

In fact, according to the federal Consumer Financial Protection Bureau (CFPB), payday loans typically have an annual percentage rate (APR) as high as 390 percent. Yet Servon doesn’t buy the politically expedient answer that focusing exclusively on punishing this admittedly predatory industry will bring any real relief to their victims.

People who have little or no money simply do not have anywhere else to go.

Two other unexpected conclusions of Servon’s work are revelatory. First, as Ariane’s story indicates, storefronts

are staffed with people from the community, as opposed to functionaries at the other end of a computer connection. At the “unbank,” customers are greeted by name and received with empathy, whether or not they conform to the corporate creditor’s demand for a new payment. Tellers do not humiliate customers for their indebtedness.

Second, unlike too many other commentators, Servon does not let mainstream banks off the hook in her rigorous analysis of the dynamics of lower- and middleclass debt. The financial industry is highly concentrated, with just four banks—Chase, Bank of America, Wells Fargo, and Citigroup—holding about half of U.S. banking assets and 6,395 far smaller banks dividing the rest. The giants take full advantage of their position by charging large overdraft fees, requiring minimum checking account balances, and engaging in the hidden practice of “debit resequencing” to drive up negative charges and slow down crediting of deposits. These abuses and endless hassles make payday lenders the more rational choice for millions of lowincome Americans.

According to the Economic Policy Institute, working-class wages have “barely budged” over the past 35 years.

Men in the private sector who do not belong to a union and lack a college degree earn substantially less than they brought home in 1970. The National Employment Law Project reports that the largest hits were visited on the lowest earners: restaurant workers, janitors, home health aides, retail salespersons, and maids have all experienced deeper wage cuts than average, with some dropping as much as 8 percent as of 2014. Teaching this group that FDIC-insured banks are better bets than storefront lenders would be meaningless anywhere, but especially in areas of “financial exclusion” where

The Unbanking of America: How the New Middle Class Survives

by Lisa Servon

Houghton Mifflin Harcourt

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banks have abandoned the population physically as well as theoretically. In the South Bronx, for example, one bank is available for every 20,000 people; in Manhattan, the ratio is one bank for every 3,000 people.

Instead, to protect people without cutting off their access to desperately needed money, the CFPB proposed rules in June that would require payday and other small loan lenders to inquire into whether applicants have the ability to repay and to cap installment loans at 36 percent APR .

Of course, following our nightmarish election, these rules, and perhaps the institution that generated them, may be eliminated. Regardless, like all the other deeply seated problems that plague economically vulnerable people, unbanking will proceed apace.

The bottom line is that Servon has written a readable, informative, thorough, and even gut-wrenching account of an under-reported problem that causes much misery. Viewed as a piece of muckraking journalism, her book is a significant contribution to the progressive narrative regarding the biggest problems we confront. The one flaw, common to many other good books about the plight of low-income people, is the thinness of her solutions.

The fact that big banks refuse to do much for the un- and underbanked leads in a straight line to the need for government intervention. Servon chooses federal subsidies and additional CFPB-like regulation. Given the timing of the book’s release, these solutions seem sadly out of reach.

Rena Steinzor is a professor at the University of Maryland Carey Law School and was president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

Winter 2017 The American Prospect 105

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The Neighborhood Activist as Prophet How Jane Jacobs took on the planners— and how her legacy is at risk By Catherine Tumber b

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e stand on the frumpy shoulders of a giant: “Jane,” as three generations of urbanists have known her, elevated into a pantheon of mono-names shared with Cher and Elvis. If not for Jane Jacobs, who died at the age of 89 in 2006, the postwar onslaught on cities as mere temporary pass-throughs for car-besotted, heavily subsidized white suburbanites would surely have proceeded at a brisker pace to greater completion.

Others had railed against “modernist” planning too, of course, with its unadorned urban towers, small-townenveloping suburban developments, and everywhere highways replacing public transit and functioning city neighborhoods. Urban historian and literary critic Lewis Mumford had been calling for a regionalist approach to urban settlements that preserved the virtues of both rural and city life since the 1920s. “Our national flower is the concrete cloverleaf,” he once observed. William H. Whyte had edited a 1958 collection, The Exploding Metropolis, criticizing what we now call suburban sprawl.

But it was Jane who turned her native curiosity and formidable analytical powers to the city itself, to what was being lost to suburban investment, to “how cities work.” It is fair to ask, though, if cities still work the same way in the age of middle-class evisceration and digital disruption.

Jane’s The Death and Life of Great American Cities, published in 1961, is a masterpiece of social criticism. It shook up the establishment and set in motion neighborhood activism and civic self-education the likes of which hadn’t been seen since the days of that other Jane: Addams. Jacobs not only explained what was of value in cities at a time when “slum clearance” was the order of the day, but just as important, she defied the mile-high experts with on-the-ground observation. She has

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not been called the “Genius of Common Sense” for nothing.

As planners bemoaned the crowded neighborhoods of Lower Manhattan where Jane raised her three children, the dangers of street play amid nefarious characters and filth, Jane shifted the conversation: Great cities like New York “worked” not in spite of density, she argued, but because of it. The close intermingling of cultures and classes doing all manner of work led to improvisation, new products, new work, new ideas. Where others saw chaos, Jane saw vitality, “organized complexity,” and safety, structured by four key elements: sidewalks and short street blocks, mixed principal uses, a variety of new and old buildings in various states of repair, and, of course, crowdedness. New projects—parks, playgrounds, additional housing—could be added, as long as they were “seamed” in and didn’t block off the flow of commerce and play, the “intricate sidewalk ballet” of strong urban neighborhoods and the many “eyes on the street” that kept crime at bay. Eyes on the Street, the title of Robert Kanigel’s engrossing new biography, was presumably chosen because that’s where Jane’s own careful attention was fixed—especially during the years that culminated in her paradigm-shifting book.

It wasn’t always so. Jane’s “eyes” were sharpened in Scranton, Pennsylvania, the small capital city of the anthracite coal region. Born in 1916 on the eve of the flourishing industrial city’s decline, Jane Butzner entered the world precocious and preternaturally confident. The third of four children, she was raised in solid middle-class security by two rural transplants eager to get into the city: a genial German Protestant general practice doctor and his wife, a teacher and nurse against whose pinched Victorian moralism and casual nativism young Jane often chafed.

Eyes on the Street: The Life of Jane Jacobs

By Robert Kanigel

Knopf

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What Jane “saw” in Scranton was a city at work in mining and manufacturing, veined with railroads and trolleys—the first to run continuously by electricity in the country—which elicited an early, lifelong curiosity about engineering and science, with “how things work.” She also brought a sense of mechanical precision to an early love of language, publishing poetry and editing a literary magazine through her high school years, having long before traded independent inquiry across disciplines for the dull transactions of the classroom.

By the time she was 16, Jane Butzner knew her vocation: writer. Bypassing college for a brief unpaid stint at The Scranton Republican, she was soon off to New York, in 1934, eventually settling in the West Village, which would become her principal laboratory for some 35 years.

Many readers of Kanigel’s definitive biography will be familiar with the arc of Jane’s achievements: her rise from stenographer to respected editor and writer through various posts in the New York publishing world, all without a college degree; her last-minute bravura performance before a Harvard gathering of urban-planning mandarins that led to Rockefeller Foundation support for her groundbreaking book; her participation in successful fights against self-described master builder Robert Moses and his ilk, most notably for halting his plans to open Washington Square Park to through traffic and to drive a monstrosity called the Lower Manhattan Expressway through the heart of SoHo; her family’s flight to Toronto, in 1968, to protect her sons from the Vietnam War draft, where she spent her remaining days; her later books The Economy of Cities (1969) and Cities and the Wealth of Nations (1985), arguing that “great cities,” with their concentrated diversity of skill, lead to the “knowledge spillovers” and “import replacement” of exports that drive economic development. Kanigel tells many other lesser-known stories of accomplishment, too, that will enlighten even the most devoted student of Jane.

He excels in capturing the tone of Jane Jacobs’s life, how her straight­-

Winter 2017 The American Prospect 107

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forward impatience with anything “stagnant” and “dull” ran like a thread throughout. Her warmth comes through too, in her relations with coworkers and fellow activists plotting away in a Village church basement, and in the laissez-faire approach she and her husband, architect Bob Jacobs, brought to their shambling household, raising children who, like their mother, also took circuitous routes to adulthood. But she could also be combative in argument and oblivious to nonverbal cues. Said a young relative who stayed with the Jacobs family in Toronto for a spell, “It was like living with Zeus.” The same sense of principled outlawry that got her suspended from school in the third grade (for convincing her classmates that, no, they could not promise to brush their teeth every day) showed up to the end in her refusal to accept honorary doctorates on grounds that they were false credentials. And as

108 WWW.Prospect.org Winter 2017

The very urban revival that Jacobs cherished, combined with today’s inequality, is making great cities unaffordable for the evaporating middle class.

readers of her books know, Jane had a fine wit sharpened by her ear for poetry. After feeling stymied while writing her 1992 book Systems of Survival, a “dialogue” among five fictional characters, she decided to replace the group of polite Canadians in her mind’s eye with argumentative New Yorkers, explaining, “Talking with Canadians is like talking to a pillow.”

It is a moving irony, and an irritating one, that at the very moment when walkable urbanism and the “great inversion” from suburban to city life has taken hold, Jane’s “intricate sidewalk ballet” has given way to the sidewalk chaos of eyes on the device. More darkly, she did not foresee that today’s wealth inequality would make great cities unaffordable for the evaporating middle classes. Always critical of both ideology and excessive reliance on abstract data to explain how things work, Jane’s common-sense empiricism relied on the persistence

of sociability—Downtown is for people!—which bred ingenuity from urban tumult and new technologies that replaced old forms of work. Some of what she argued, including her criticism of one-size-fits-all government planning and labor unions, is in accord with libertarian and neoliberal opposition to measures that might compromise the march of global innovation.

So too is her view that large prosperous cities must grow unimpeded by excessive regulation as both national economic engines and bulwarks of civilization. “[W]e can be absolutely sure of a few things about future cities,” she wrote in 1969. “[T]hey will be more intricate, comprehensive, diversified, and larger than today’s, and will have even more complicated jumbles of old and new things than ours do.”

With decades-long assists from freemarket urban economists and a host of others who forged today’s consensus that the United States should replace

n e w yo r k w o r l d -t e l e g r a m & s u n n e w s pa p e r photogr aph collec tion / libr ary of congress

Jane Jacobs at a 1961 press conference for the Committee to Save the West Village

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low-return manufacturing with highvalue knowledge products, particularly in the digital sector, “great cities” have certainly grown, but digital technology, income inequality, and soaring housing prices have edged out many of the old “jumbles” that once made them truly diverse.

Since Jane’s death ten years ago, that consensus has come under mounting, if fragmented, fire, as evidenced by the 2016 U.S. presidential election. Across the political spectrum, growing “knowledgebased” elite coastal cities face heartland resentment, while those still ensconced in manufacturing and agricultural economies, grounded by Jane’s “dull” little cities, adhere ever more fervently to local cultures of production. Meanwhile, social media— the product of today’s economic innovations—has had the effect of disrupting the cross-class sociability that Jane took for granted, from the pedestrians passing each other while staring at smartphone screens to the echo-chamber quality of separate bubbles of news consumption.

All of which raises the question, How do cities work now? Or rather, Can countries across the world thrive without tempering the new ideas generated by great cities with the steadfast productive ethos of the hinterland? In her final book, Dark Age Ahead (2004), Jane brooded over the possibility that North America had entered a period of long-term cultural stagnation and coarsening, as a variety of “stabilizing forces,” from family and community to professional integrity and government attentiveness to local conditions, seemed to be disintegrating. Were Jane’s attention fixed on her hometown of Scranton today, in view of recent disruptions both digital and economic, she might well have seen its potential through new eyes.

Catherine Tumber is the author of Small, Gritty, and Green: The Promise of America’s Smaller Industrial Cities in a Low-Carbon World, among other writings. She works as a senior research associate at Northeastern University’s Dukakis Center for Urban and Regional Policy.

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Hidden in the Algorithms A new book argues that data science may serve to reinforce inequality. By Arthur Goldhammer b

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n her catchily titled book, Weapons of Math Destruction, Cathy O’Neil, a number theorist turned data scientist, delivers a simple but important message: Statistical models are everywhere, and they exert increasing power over many aspects of our daily lives. Data collected by occult means and analyzed by algorithms of often dubious validity help to determine who gets a mortgage, who goes to college, what you pay for insurance, who gets what job, what level of scrutiny you will be subjected to when you fly, how aggressively your neighborhood will be policed, and how you will be treated if arrested.

No one will be surprised to learn that ever more powerful computers processing rapidly expanding volumes of data have become a ubiquitous tool of decision-makers in many areas. O’Neil drives the point home by assembling numerous examples ranging from college ranking systems to payday loan-sharking and hedgefund trading. Perversely, many of the algorithms used in these analyses privilege the already-privileged and handicap the already-handicapped: If you’ve been treated for depression, you’re less likely to find work and therefore more likely to relapse; if you’re a “borrower from the rough section of East Oakland,” you’ll pay higher interest on your credit card even though you’re “already struggling.”

Whether intentionally or unintentionally, the automation of selection processes thus increases inequality.

Although the author is herself a working data scientist, she takes great pains to avoid technical jargon and to put her argument in the simplest terms possible. To explain the intuition that underlies the application of statistics to the real world, she begins with baseball, the locus classicus for all American stats mavens.

Anyone can understand why fielders will shift their positions toward right field when facing a slugger known to

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hit that way more often than not.

Not all statistical models are so easy to grasp, however. O’Neil distinguishes between healthy models and unhealthy ones. Healthy models are transparent. The cogs and wheels that make them function are exposed for all to see, understand, and evaluate. They are continuously updated as new data flow in. If the model makes inaccurate predictions, it can be corrected and tested against still newer data to see if it improves. If it cannot be improved—if its predictions remain erratic—then it should be scrapped, since the inability to improve the model suggests inadequate understanding of the underlying process. Still, no one should mistake the existence of a sophisticated algorithm for proof that it is valid, trustworthy, or harmless.

O’Neil’s book can be read as a plea to her fellow data scientists to take a Hippocratic oath for the age of big data: Above all, a good algorithm should do no harm. She identifies any number of cases in which that oath has been violated. One that comes in for special attention is an algorithm designed to measure the “value added” by individual teachers in the classroom. A middle school English teacher named Tim Clifford was devastated to learn that he had received an “abysmal 6 out of 100” in a value-added evaluation. When he tried to determine where he had gone wrong, however, he was unable to identify any specific flaw in his teaching. The following year he therefore taught a similar class without changing his approach at all. His score shot up to 96. The experience made him “realize how ridiculous the entire value-added model is when it comes to education.” Ill-conceived performance measures not only shame and penalize individuals but also result in bad public policy when administrators place undue confidence in seemingly objective measurements to the

Winter 2017 The American Prospect 109

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detriment of possibly more informative modes of evaluation.

Sometimes, the harm done by algorithms is inflicted not on individuals but on entire groups. For instance, one education consulting firm helps colleges “target the most promising candidates for recruitment” on the basis of ability to pay full tuition or eligibility for outside scholarships. A company in Virginia supplies software to sift through call center traffic to shorten the waiting time of those deemed to be “more profitable prospects.” Distilled from such examples, the heart of O’Neil’s argument is simply stated: The incessant drive to cut costs and increase profits has discriminatory consequences. Algorithms are touted as antidotes to prejudice, or subjective bias, but in many cases they simply replace subjective bias with what can only be called objective bias: Even if there is no intent to treat people unequally, inequality is built into the machinery of choice.

The evaluation of applicants for auto insurance offers an interesting example. In 2015, Consumer Reports researchers looked into the pricing of auto insurance policies, analyzing some two billion price quotes from around the country. What they discovered was that insurers rated applicants not only on the basis of their driving records but also on information gleaned from credit reports. This so-called “proxy data” weighed more heavily than a driver’s actual safety history: “In New York State, for example, a dip in a driver’s credit rating from ‘excellent’ to merely ‘good’ could jack up the annual cost of insurance by $255.”

Since poor people tend to have worse credit ratings than those better off, the application of this algorithm was inherently discriminatory. The investigators found that because of reliance on proxy data such as credit scores and high school grades, the pricing of auto insurance was “wildly unfair.” But why would insurers choose to weigh such proxy data more heavily than actual driving records in their algorithm?

Algorithms are touted as antidotes to prejudice, or subjective bias, but in many cases they simply replace subjective bias with what can only be called objective bias.

Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy

By Cathy O’Neil

Crown

O’Neil’s answer reveals both the power and the weakness of her approach. “Automatic systems,” she writes, “can plow through credit scores with great efficiency and at enormous scale.” This is certainly true, but such systems can also plow through driving records. Why prefer credit scores? Is electronic access easier to obtain than access to driving records? This may well be the case, but the book provides no evidence of it. Instead, the author abruptly shifts gears to attack the motives of the insurance companies rather than the algorithm they use, which is her ostensible subject: “I would argue that the chief reason has to do with profits. If an insurer has a system that can pull in an extra $1,552 a year from a driver with a clean record, why change it? The victims of their WMD … are more likely to be poor and less educated, a good number of them immigrants. They’re less likely to know that they’re being ripped off. And in neighborhoods with more payday loan offices than insurance brokers, it’s harder to shop for lower rates. In short, while an e-score might not correlate with safe driving, it does create a lucrative pool of vulnerable drivers. Many of them are desperate to drive—their jobs depend on it. Overcharging them is good for the bottom line.”

This is vivid writing. It is also highly tendentious. No justification for the $1,552 figure appears in the book, nor is the insurers’ side of the story aired at all. The Consumer Reports article cited is more informative. We learn that “car insurers didn’t use credit scores until the mid-1990s.

That’s when several of them, working with the company that created the FICO score, started testing the theory that the scores might help to predict claim losses. They kept what they were doing hush-hush. By 2006, almost every insurer was using credit scores to set prices. But two-thirds of consumers surveyed by the Government Accountability Office at about the same time said they had no idea that their credit could affect what they paid for insurance.”

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From this brief account we learn that insurers did indeed follow O’Neil’s prescription to test their models against real out-of-sample data. Did they do so in order to hone a strategy for ripping off the poor and vulnerable, as O’Neil suggests? Or was it that risk pools based on credit scores proved more accurate in predicting the likelihood of future accidents than risk pools defined by past driving records?

The latter is a logical possibility that one would expect a mathematician like O’Neil to consider before indicting the motives of the insurers.

Of course, even if credit scores are a useful proxy for accidentproneness, we might conclude that using them to construct risk pools is inherently unfair. O’Neil’s remedy is to insist that the algorithms used in constructing statistical instruments be made transparent and subjected to scrutiny by stakeholders. This is a reasonable proposal, but it won’t help with another problem she identifies: the gaming of algorithms. For instance, Baylor University administrators used knowledge of how U.S. News and World Report computes its college rankings to improve the standing of their institution. Because the U.S. News algorithm was at least partially transparent, administrators “paid the fee for admitted students to retake the SAT ” in order to “boost their scores—and Baylor’s ranking.”

Hence transparency is no panacea.

Weapons of Math Destruction provides a handy map to a few of the many areas of our lives over which invisible algorithms have gained some control. As the empire of big data continues to expand, Cathy O’Neil’s reminder of the need for vigilance is welcome and necessary, despite the occasional breathlessness of her prose. Patience and rigor are not what one expects from a crier of alarm, a role for which O’Neil is particularly well-suited and in which she performs admirably.

Arthur Goldhammer is a writer, translator, and affiliate of the Center for European Studies at Harvard.

volume 28, number 1. The American Prospect (ISSN 1049-7285) is published quarterly by The American Prospect, Inc., 1225 Eye Street NW, Suite 600, Washington, DC 20005. Periodicals-class postage paid at Washington, DC, and additional mailing offices. Copyright © 2017 by The American Prospect, Inc. All rights reserved. No part of this periodical may be reproduced without the consent of The American Prospect, Inc. The American Prospect ® is a registered trademark of The American Prospect, Inc. Postmaster: Please send address changes to The American Prospect, P.O. Box 421087, Palm Coast, FL 32142. printed in the u.s.a.

Winter 2017 The American Prospect 111

Last word

It’s the Misogyny, Stupid!

by Adele M. Stan

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any are the reasons—­ and I don’t think we know them all yet—why Hillary Rodham Clinton lost the 2016 presidential race to Donald J. Trump, despite having won the popular vote by at least 2.8 million. Aside from the peculiarities of the Electoral College, there’s Russian hacking, Trump’s stoking of racial resentment amid his mostly white base, his mastery of the media and the news cycle, the media’s engagement in false equivalencies between controversial aspects of each campaign, and the Clinton campaign’s own missteps. There’s a lot to sort out.

But misogyny in white America belongs at the top of the list.

Misogyny knows no boundaries of color or culture; you can pretty much expect to find it in any society where men are running the show, and even where women have some power. Of course, Trump ran a nationalist campaign aimed at white people, especially appealing to voters who have a very particular idea of their white identity—one that is entirely patriarchal, in which women of color are completely devalued while white women are viewed as vessels for creating more white people.

The sexism of the Trump campaign script is well documented: the conspiracy theories about the state of Clinton’s health (women being fragile things), Trump’s assertion that she doesn’t have a “presidential look,” his labeling her “a nasty woman,” his walked-back promise to punish women who had abortions, that witch-burning

112 WWW.Prospect.org Winter 2017

of a Republican National Convention that started the “Lock her up!” chanting craze in response to Trump’s promise to do just that.

Trump won 81 percent of white evangelicals, a constituency well versed in the Bible, which most evangelicals believe to be the root document for the American republic. At the beginning, we find Eve, who sells out Adam and all of humanity for a grasp at the power of knowledge. The forbidden fruit isn’t sex; it’s knowledge, and Eve means to get herself some. Eve, in the cultural imagination, is duplicitous and dangerous. She gives the fruit to the unwitting Adam, and God punishes them both.

If this is one’s model for the order of society, it becomes easier to understand why people who claim to be paragons of morality could cast their votes for a thricemarried philanderer even after a video recording showed him using the crassest of language to assert his right to sexually assault women.

More urgent than the problem of Pussygate for many white Americans, evangelical and not, was the problem of Eve, the original signifyin’ woman, and her 21st-century avatar, Hillary Rodham Clinton. In the hefty catalog of misogynistic expression in the 2016 presidential campaign, the most determinative may well have been the Eve narrative in the collective unconscious: Whether the topic was Benghazi attacks or Clinton’s email server or the state of her health, the message, as conveyed by the Trump campaign, the Republican Congress, and the mainstream media, was that

Clinton was hiding something.

If you took a bite of the apple she offered you, you were doomed, forever expelled from Paradise.

Never mind that Trump, with his business holdings all over the world, refused to release his tax returns. Never mind that Trump told lie after lie—and made out-

More urgent than the problem of Pussygate for many white Americans was the problem of Eve, and her 21stcentury avatar, Hillary Rodham Clinton. landish campaign promises that even his voters didn’t believe.

Because he is a male politician, allowances were made, and because he is Trump, even more.

As a white man who is clearly the head of his family, whose familyrun business operates on a patriarchal model, Trump is a hero in the eyes of key demographic groups in white America.

The Trump campaign also provided a counter-narrative to the derided ambition of Hillary Clinton with the beatific Ivanka Trump, her father’s dazzling daughter—and one who knows her place while bathing him in the reflected glow

of her own privileged success.

Fully 53 percent of white women voted for Trump, compared with only 4 percent of black women. Sure, among the 94 percent of black women whose votes Clinton won are those who may have pulled the lever for her more out of fear of the Republican nominee’s racism than an overwhelming sense of sisterhood with the Democratic standard-bearer or repulsion at Trump’s sexism.

And those 53 percent of white women who voted for Trump?

Either their racial identity superseded their distaste for the sexism they experience daily, or they believed that preserving the status quo in gender power relations would enable them to hold onto what they had. A shift in the social construction of the nation—by women or minorities assuming more power—portends uncertainty in one’s own social position.

It challenges the illusion of protection felt by a woman who sees her role as helpmeet to a patriarch. Within the white working class, this perceived loss of social position might have influenced the outcome in Rust Belt states as much as or more than the loss of manufacturing jobs, which has been a trend for decades.

When history is written of this period, it will doubtless be said that the Trump campaign exposed the racism and xenophobia always running as an undercurrent in white America’s sense of itself.

It also exposed this: the nation’s primitive attitudes toward women, and the fear of female power by men and women alike.

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Election Postscript: Rejecting Hate and Economic Inequity

By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS he recent presidential election revealed a deeply divided and disaffected America. While Donald Trump won the electoral vote and, therefore, the election, Hillary Clinton won the popular vote by well over 1 million votes. Since the election, we have seen incidents of bias and bullying that invoke the president-elect’s name and slogans. For many Americans, this is a frightening time; Trump must use his unique position to quell this dangerous climate.

We cannot be silent, or allow bigotry and hate to be normalized. On Nov. 18, joined by groups representing millions of people, the American Federation of Teachers and the Southern Poverty Law Center sent Trump a letter calling on him to unequivocally denounce such acts and the ideology that drives them. Trump’s election-night call for Americans to come together and his subsequent statement against hate-fueled violence were welcome. But the appointment of Steve Bannon as his chief strategist—a hero of white supremacist groups—sends the exact opposite message. So do his choices for national security adviser, retired Lt. Gen. Michael Flynn, who has made biased and incendiary comments about Muslims, and for attorney general, Sen. Jeff Sessions, who was previously rejected for a judgeship because of his racially charged actions and comments.

The AFT will continue to champion the things American children, their families, and working people need in order to have good lives and a chance at the American dream.

That dream rests on four key foundations: 1) The economy must create and maintain well-paying jobs and a ladder of opportunity for all, not just those at the top or who currently benefit from the political and

Despite these deep political divisions, most American voters agree the economy is the most important issue facing our country. Economic changes from deindustrialization, globalization, technology and the recession have left so many people behind. It seems the only ones who have fully recovered are the wealthy, leaving many to feel that both our government and our economic system are rigged and unfair.

economic system. 2) Our public education system—from pre-K through college—must keep children safe and be strong and supported, not privatized or defunded, so it can help them develop skills and knowledge, to maximize their opportunities and foster respect and understanding. 3) Our democratic values, including a free press, an independent judiciary and a thriving labor movement, are rooted in pluralism and equality, and we must stand up against any threat to them. 4) Finally, every person deserves dignity and respect, and freedom from discrimination, bigotry and bullying.

When we strip away the labels of identity—of religion, birthplace, gender, race or sexual orientation—we all want the same things: to be able to provide for ourselves and our loved ones, to have opportunities that match our abilities, to live free of fear. Everyone should have opportunities to thrive in and contribute to the United States: the Latina Dreamer in a Texas medical school; the white working-class voter in Youngstown, Ohio, who feels abandoned; and the young man in Baltimore who worries whether the color of his skin amounts to a target on his back. We must rise above our fears and fight for our dreams—and for those of every American.

We cannot allow bigotry and hate to be normalized.

Improving the lives of working families is the chief aim of the labor movement. A true test of Trump’s willingness to help America’s families is whether he will work with unions, not try to destroy us—as many Republican governors have done, further eroding wages in states like Wisconsin. While Trump’s populist positions seem to have resonated with some, where the rubber meets the road will be with issues that are key to real economic populism, like the right to a voice at work and collective bargaining, a living wage, retirement security, and an end to austerity and bad trade deals like the Trans-Pacific Partnership.

Photo by Michael Campbell

Lifting wages, and building and making things in America again—as vital as these are—will not address our nation’s economic and civic insecurity if bigotry and hate are enabled. Just as the March on Washington in 1963 was for both jobs and justice, “Communities of color need physical and economic security,” Jamelle Bouie wrote after the election in Slate. “Strong wages and freedom from discrimination. Without the latter, a rising tide will not lift all boats.” This is not an either-or matter; it is both-and.

We have daily reminders that discrimination, intimidation and hatred persist, too often even in our schools and colleges. The day after the election, a student at a California high school handed out “deportation” letters to minority classmates. In Michigan, a man threatened to set a college student on fire if she did not remove her hijab. Black students at a Pennsylvania university received lynching threats with graphic images.

Photo by Michael Campbell

Weingarten speaks at a press conference calling on President-elect Donald Trump to denounce the hate-fueled acts occurring in the wake of his election.

Follow AFT President Randi Weingarten: www.twitter.com/RWeingarten