Monday, June 19, 2017

In virtually unprecedented move, Trump Solicitor General switches sides in Murphy Oil case



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In virtually unprecedented move, Trump Solicitor General switches sides in Murphy Oil case // Economic Policy Institute Blog
http://www.epi.org/blog/in-virtually-unprecedented-move-trump-solicitor-general-switches-sides-in-murphy-oil-case/

Today, the Acting Solicitor General switched the government's position in National Labor Relations Board v. Murphy Oil USA, Inc, from arguing in favor of working people to arguing in favor of big business. The move is deeply disappointing, and represents a stark departure from standard practice. It is the clearest indication yet of where the Trump administration stands: with corporate interests and against working people.

The Murphy Oil case is significant for workers. It will determine whether mandatory arbitration agreements with individual workers that prevent them from pursuing work-related claims collectively are prohibited by the National Labor Relations Act (NLRA). These agreements have become increasingly common.

The NLRA guarantees workers the right to join together to improve their terms and conditions of employment and prohibits employers from interfering with or restraining the exercise of these rights. In Murphy Oil, the National Labor Relations Board is arguing that agreements that force workers to waive their right to pursue work-related claims on a class or collective basis interfere with workers' rights under the NLRA and are prohibited. The Solicitor General argued this position just last October, and there has been no change in the law since then. As a matter of fact, just last month the United States Court of Appeals for the Sixth Circuit held that these mandatory arbitration agreements and class action waivers are prohibited by the NLRA. The only thing that has changed is the administration.

It is worth noting how unprecedented this move is. The most recent example of the Solicitor General changing positions is a Reagan administration-era case, Bob Jones University v. United States. In that case, the government changed its position to advocate in favor of an institution's right to adopt racially discriminatory policies while enjoying tax exempt status. It was a shameful switch. And, the Solicitor General lost. Today's decision is also shameful. The Acting Solicitor General is arguing against workers' rights to join together to advocate for better wages and working conditions. Like the Bob Jones University about-face, this switch, puts the Acting Solicitor General and the Trump administration on the wrong side of history and, hopefully, the wrong side of the Supreme Court in this important case.


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Friday, June 16, 2017

Gorsuch’s First Opinion: Let Debt Collectors Run Amok [feedly]

Gorsuch's First Opinion: Let Debt Collectors Run Amok
http://prospect.org/article/gorsuch%E2%80%99s-first-opinion-let-debt-collectors-run-amok

Olivier Douliery/picture-alliance/dpa/AP Images

Associate Justice Neil Gorsuch

Justice Neil Gorsuch's first Supreme Court opinion won't earn much notice in his biographies. The unanimous decision reads more like a grammatical lesson, scrutinizing one line of text in a decades-old statute. But if you have ever been harassed in the middle of the night by a debt collector, or been threatened with tax liens or court summonses or even bodily harm, you should understand what Gorsuch and his fellow justices did on Monday: They gave some of the worst bottom-feeders in the economy a free pass to break the law.

The case, Henson v. Santander, looks pretty innocuous at first reading. But the Roberts Court's deference to big business, and lack of experience about the real-world legislative implications of their legal debating club, turned this decision into a huge win for financial predators. It's now up to Congress to fix what Gorsuch and friends broke. But with the current group in charge, don't hold your breath.

Here's what the case is about. Citi Financial Auto made a series of car loans, and then sold the defaulted debts to the Spanish bank Santander, which subsequently tried to collect. The plaintiffs allege that Santander violated the Fair Debt Collection Practices Act (FDCPA) of 1977 by harassing and intimidating the debtors. The FDCPA protects debtors from such practices, enabling them to file suit against the debt collector, with hefty fines for misconduct.

Santander argued that it bought the debts outright and wasn't attempting to collect them on someone else's behalf, as debt collectors regularly do. Therefore, it was exempt from the FDCPA. Two courts agreed with Santander, but the appeal went to the Supreme Court.

At this point we have to perform the drudgery of examining the FDCPA statutory text for how it defines "debt collector." It's a fairly targeted definition, with exemptions for government officials, process servers, nonprofit credit counselors, and originators of the debt. A "debt collector," under the statute, means any business whose principal purpose is collecting debts, or a business that regularly collects "debts owed … another."

This definition, written in 1977, predates the rise of the debt buyer. Since then, however, debt buying has become a multibillion-dollar industry whose participants purchase defaulted debt for pennies and harangue the debtors for the money.

The question raised by Gorsuch's opinion is whether a debt buyer should be exempt from the main rule preventing abhorrent misconduct in this industry, just because it bought the debt outright instead of trying to collect as a third party.

According to the Supreme Court, yes. Gorsuch weirdly throws out the first part of the definition—about a business with the principal purpose of collecting debts—writing that "the parties haven't much litigated that alternative definition" and the Court didn't agree to address it. So the only dispute here is over the "debts owed … another" clause.

There then follows a long passage about the meaning of those three words—if you are interested in questions of past participles, give it a read—concluding that "a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute."

Maybe that's a reasonable position. But you should understand the consequences. Debt buyers, who to this point had at least some legal exposure to the FDCPA, are now exempt from it, under one definition of "debt collector." That makes potential litigants reliant on the other definition—a business whose principal purpose is collecting debts. And some experts in this field believe this presents an opportunity for the buyer industry.

"It's almost a road map to me on how you can avoid the FDCPA," says noted consumer bankruptcy attorney Max Gardner, who runs a boot camp for lawyers fighting predatory lenders. As an international bank, for example, Santander could easily argue that its principal purpose is not debt collection, but originating loans. Other debt buyers could follow the "Santander defense."

"The biggest debt buyer in the country is called Sherman Acquisitions," Gardner says. "They own all sorts of subsidiaries. They also own two national banks. You can put two and two together." Sherman could merely claim that the national banks it owns are the debt collectors, and that's not their primary purpose. And if the courts agree, the nation's largest debt buyer would be freed from following the FDCPA, and allowed to call and yell at you at three in the morning.

Sherman could have done that switcheroo before, but they still had to fear running afoul of the "debts owed … another" clause, which other courts had ruled as applicable to debt buyers. With Gorsuch and the Supremes waving that away, debt buyers are free to play all kinds of games to evade regulation. Debt buyers could acquire a community lender and assign it the task of debt collection. Or larger banks could bring a debt buying operation under their roof, as Santander has.

Bankruptcy attorneys seem more exercised by this decision than consumer attorneys, but everyone sees the potential for mischief. "Certain debt buyers by their corporate structure are going to be able to avoid this law," says April Kuehnhoff, an attorney with the National Consumer Law Center. "Now consumers are not going to know whether this person calling them is covered or isn't covered [by the act]. I think it raises a lot of difficulty in private enforcement."

Kuehnhoff adds that Congress needs to get involved right away to fix this newly created hole, rather than wait and see how the industry adapts. Indeed, that was Justice Gorsuch's conclusion as well, that Congress could merely update the statute by applying it to debt buyers to reflect the changing times. Max Gardner believes that's a pipe dream with the current Congress. "That's going to happen as soon as Trump reveals his tax returns," he says.

Gorsuch's was the second Supreme Court ruling benefiting debt buyers handed down in the last two weeks. The other, Midland v. Johnson, allows a debt buyer to file a proof of claim in a bankruptcy case beyond the statute of limitations without violating the FDCPA. This creates an incentive for debt buyers to toss expired claims into any bankruptcy case without sanction. "You're buying debt for five (hundredths of one percent), you don't have to hit too many doubles to come up with a pretty good batting average," says Gardner.

Decisions like those in these two cases happen when you have nine cloistered, Ivy League-educated career jurists on the Court, instead of someone with actual experience in the legislative arena or defending vulnerable people. A 2014 report found that 77 million Americans—more than one in three—have an outstanding debt in collections. Enormous numbers of people are going to have their lives worsened because of this unanimous ruling based on a narrow word construction.

The justices certainly could have clarified the status of debt buyers under the FDCPA using the statute's entire definition. The Court has no problem expanding rulings when it comes to letting states opt out of expanded Medicaid or enabling unrestricted money in our elections. Only when it comes to people hounded by debts do they adhere so narrowly to the question before them. But businesses almost always get the benefit of the doubt at the Supreme Court in ways that ordinary Americans don't.

Millions of people will be awakened in the night by an angry telemarketer screaming at them to pay up. I wish the first person to get such a call would be Neil Gorsuch.

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Trump offers fool’s gold to fund infrastructure [feedly]

Trump offers fool's gold to fund infrastructure
http://www.peoplesworld.org/article/trump-offers-fools-gold-to-fund-infrastructure/

Donald Trump surrounds himself in gold. The signs on Trump buildings shimmer in it. His penthouse in New York is gilded in it.

He claims now to have found the alchemy to conjure $1 trillion in infrastructure gold. He plans to put up a mere $200 billion in federal funds and stir it together with $800 billion in private investment and state dollars.

That is fool's gold. A falsely-funded infrastructure program is a massive broken promise. America needs real improvements to roads, bridges, schools, hospitals, airports, water systems and railways.

That requires a commitment of real tax dollars, not the relinquishment of America's public assets to profit-seeking private Wall Street entities. Americans should not be charged twice for maintenance of the public good, once through tax breaks to investors and again in outrageous tolls and fees the investors charge.

Standing on the banks of the Ohio River in Cincinnati, Trump reiterated the pledge he made repeatedly on the campaign trail to put $1 trillion into infrastructure. He said "restoring America" is a promise that Washington, D.C., has broken. "It has not been kept, but we are going to keep it," he said.

"Taxpayers deserve the best results for their investment," he said, "and I will be sure that is what they get." But the plan to turn over public assets to private corporations for tax-supported investment is gold only for the 1 percent who can afford to invest.

The Wall Street Journal reported last fall that to raise the private funds, Trump planned to give massive tax breaks of 82 percent of equity to investors that help pay for infrastructure repair. For citizens, that's a crappy deal – giving Wall Street control over public assets in addition to being forced to fork over the taxes that rich investors will not pay.

That financial alchemy creates poison, not gold.

In addition, there is no profit in many types of infrastructure that need repair, like schools and hospitals. A corporation can't collect tolls from children entering their elementary school each morning.

Despite Trump's promise in Cincinnati that he would take care of rural areas, there's no profit in many crucial infrastructure projects in such regions. Investors won't pay for a highway needed to connect two isolated towns in West Virginia.

And the profit in some projects is highly questionable. Several corporations that have bought or built toll roads have filed for bankruptcy. This includes highways in Texas, California, Indiana and Alabama.

In other cases, the profits reaped are outrageous. After Chicago sold its 36,000 parking meters to Morgan Stanley, the Wall Street bank doubled the parking rates and charged the city tens of millions annually for meters Chicago took out of service for street repairs, mass transit stops and safety.

A city inspector general report on the deal says Chicago underpriced the meters by nearly $1 billion when former Mayor Richard M. Daley signed the 75-year contract in 2008. The bank is expected to make back its $1.15 billion investment by 2020, giving it 60 more years to rake in pure profit on the backs of Chicago taxpayers who paid to install the meters and who feed them daily.

That's gold for Morgan Stanley, grief for taxpayers.

Another part of Trump's financing plan is to shift infrastructure costs to states and towns. This also cheats too many citizens. Sure, some places high on the hog like Silicon Valley might be able to afford that. But too many will be left out.

That's because large numbers of cities and states are facing fiscal crises. Chicago sold its parking meters to fill a budget shortfall. In Oklahoma, where there's a $900 million budget gap, schools are so underfunded that 96 of the state's 513 districts have reduced the school week to four days and another 44 may be forced to do that in the fall. The state has shuttered rural hospitals, overcrowded its prisons and limited state troopers to 100 miles of driving a day.

In Kansas, with a $1.1 billion budget deficit, the state Supreme Court just ordered the legislature to properly pay for its schools. The court said Kansas' underfunding meant inadequate education in basic reading and math for students in one fourth of its public schools. The state shortchanged half of the state's black students and a third of its Hispanic pupils.

Illinois hasn't had a budget for two years. The state's credit rating has been downgraded eight times. It has accrued $14.5 billion in unpaid bills. As a result, more than 1,500 public university and community college workers have been laid off and untold numbers of social service agencies have closed or severely curtailed services.

shortfalls after years of failing to properly pay into the funds.

These places aren't going to be able to jump up and take on the federal government's responsibility to invest in infrastructure.

Even the $200 billion that the Trump administration is saying the federal government will provide is in question. It's in the budget Trump submitted to Congress, but also in that budget is $206 billion in cuts to existing infrastructure programs, including those conducted by the U.S. Department of Transportation and the Army Corps of Engineers. That's the very Corps of Engineers that would pay for the river lock and dam projects that Trump complained in Cincinnati were grossly underfunded, causing costly breakdowns.

That kind of budgeting is bad alchemy. That's not $1 trillion in infrastructure gold.

Trump said, "We will build because our people want to build and because we need them to build. We will build because our prosperity demands it. We will build because that is how we make America great again."

That sounds wonderful. But to build, projects must be properly paid for. And so far, the Trump administration has offered only pyrite.

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The Importance of Fairness: A New Economic Vision for the Democratic Party [feedly]

The Importance of Fairness: A New Economic Vision for the Democratic Party
https://baselinescenario.com/2017/06/15/telling-a-better-story-a-new-economic-vision-for-the-democratic-party/

By James Kwak

A lot has been written recently about the direction of the Democratic Party. This is what I think.

I have been a Democrat my entire life. Today, the Democratic Party matters more than ever because it is the only organization currently capable, at least theoretically, of preventing the Republicans from turning the United States into a fully-fledged banana republic, ruled by and for a handful of billionaire families and corporate chieftains, with a stagnant economy and pre-modern levels of inequality. Yet I cannot find anything to disagree with in Senator Bernie Sanders's assessment:

"The model the Democrats have followed for the last 10 to 20 years has been an ultimate failure. That's just the objective evidence. We are taking on a right-wing extremist party whose agenda is opposed time after time and on issue after issue by the vast majority of the American people. Yet we have lost the White House, the U.S. House, the U.S. Senate, almost two-thirds of the governors' chairs and close to 900 legislative seats across this country. How can anyone not conclude that the Democratic agenda and approach has been a failure?"

A central shortcoming of the party is that, on economic issues, it has nothing to say to people trapped on the wrong side of our country's growing inequality divide. Hillary Clinton won the "working class" (household income less than $50,000) vote, but by a much smaller margin than Barack Obama in 2012 or 2008—despite Donald Trump's ardent efforts to alienate African-Americans and Latinos. Some people voted for Trump because of racism or misogyny. But Clinton was also flattened by Trump among voters who feel their financial situation was worse than a year before or who think that life will be worse for the next generation. She lost the Electoral College in the "rust belt" states of the Upper Midwest, whose economies have never fully recovered from the decline of American manufacturing.

The Democratic Party was once the party of working people. So why is it increasingly becoming the party of well-educated, socially tolerant, cosmopolitan city-dwellers? Because, in an age of stagnant median incomes and a disintegrating social safety net, Democrats have no economic message for the many people who are struggling to make ends meet, to pay for college, to stay in a home, or to save for retirement.

This impotence is the product of sweeping changes in the intellectual and political landscape of the United States. As I discuss in my recent book, Economism, contemporary thinking about economic issues is dominated by "economism": the belief that simplistic models accurately describe the real world and should be the basis of public policy. (For example: The minimum wage is an artificial price floor in the labor market, therefore supply will exceed demand, therefore unemployment must increase.) This naive or disingenuous worldview, according to which unregulated markets produce the best of all possible worlds, is frequently invoked to defend policies that favor the wealthy and justify the vast inequality that results.

Economism was promoted by conservatives who sought to roll back the New Deal and restore a mythical libertarian paradise governed by free markets, with a minimal state and low taxes. Their vision became the platform of the Republican Party in the 1970s and the policy handbook for President Ronald Reagan and every conservative leader since. In response, Democrats have tacked to the right on economic issues. Since Bill Clinton, the Democratic Party's economic vision has been that prudent management of macroeconomic factors would foster higher private sector growth, which would in turn create jobs and prosperity for working families. The central planks of this platform have included: cutting budget deficits to reduce interest rates; reappointing Republican Federal Reserve chairs who would control inflation; and even seeking a "grand bargain" that would reduce Social Security spending in exchange for modestly higher taxes. As the Republican Party has been taken over by charlatans who insist on cutting taxes and crippling government at every opportunity, Democrats have rebranded themselves as the moderate party of responsible economic stewardship.

But there are two problems with this approach. The first is that it is economism lite. While Republicans say, "Free markets solve all problems," Democrats respond, "Free markets solve most problems, but markets sometimes fail, so sometimes they need to be judiciously regulated to produce efficient outcomes." This may be more accurate, but it undermines Democrats' appeal to people who have not benefited from overall economic growth—because they have the wrong skills, live in the wrong place, got sick at the wrong time, or otherwise got unlucky.

The second problem is that economism lite doesn't work, at least not anymore. A rising tide might lift all boats, as President John F. Kennedy claimed; but, then again, it might not. Since Ronald Reagan was elected president in 1980, labor productivity—the amount that each person can produce in an hour of work—has grown by 94% (a modest but respectable 1.9% per year); real per capita gross domestic product—total economic output per person—has grown by 82% (1.7% per year). Over that same period, however, median household income has increased by only 16% (less than 0.5% per year). In other words, the country as a whole has become almost twice as rich, but the typical family makes only a little more money than in 1980. Where has all the money gone?

To the very rich, as can be seen in one chart:

(If you compare the top 1% with the bottom 99%, or the top 10% with the bottom 90%, or the top 0.01% with the bottom 90%, you get the essentially the same picture.)

To be clear, the failure of overall economic growth to benefit the middle and working classes is not solely or even primarily the Democrats' fault. The villain in that story is the Republican conservatives who weakened unions, undermined the social safety net, and slashed taxes on the rich. Globalization and competition from low-wage countries were another factor. But since the onslaught of the conservative revolution, Democrats have played defense by claiming the space once occupied by moderate Republicans. Recall the pivot to deficit reduction in 1993, welfare reform in 1996, the capital gains tax cut of 1997, the commitment to free trade agreements from NAFTA to TPP, and the bipartisan commitment to financial deregulation that helped produce the devastating financial crisis of 2008.

Barack Obama temporarily had a filibuster-proof majority in the Senate, and yet his principal accomplishments were an economic stimulus bill that was more than one-third tax cuts; a health care plan modeled on Mitt Romney's Massachusetts reforms; a technocratic financial reform bill that neither reduced the dominance of the megabanks that caused the 2008 crisis nor, judging from subsequent experience, deterred them from serial lawbreaking; and a financial system rescue that kept the big banks (and their executives and shareholders) afloat while they fraudulently foreclosed on millions of homeowners. There were positives in Obama's economic record: The recession would have been worse without the stimulus, millions of people got health coverage, and the Dodd-Frank Act included some steps in the right direction. Taken as a whole, however, Obama governed as what we called a moderate Republican only a few decades ago, and the only vision one can distill from his actions is that of prudently harnessing market forces to generate growth. (Perhaps the president and his advisers would have preferred more progressive policies in some areas such as health care—but they were constrained not just by the Party of No, but also by a Democratic caucus effectively controlled by its conservative wing.) For an unemployed recent graduate buried by student debt, or a factory worker laid off in middle age while underwater on her mortgage, or a retiree who saw her savings evaporate in 2008 and 2009, the argument that Hillary Clinton and the Democrats are not as bad as the Republicans was just not compelling enough.

One of the central themes of my book is that economism is an ideological worldview: a lens through which we see the world, which affects the way we interpret reality and serves the interests of certain groups. Logically, it can only be overthrown by another worldview. And so the book ends this way:

"Millions if not billions of people today hunger to live in a world that is more fair, more forgiving, and more humane than the one that we were born into. Creating a new vision of society worthy of that collective yearning—one that goes beyond the false promises of economism—is the first step toward building a better future for our children. That is the story that remains to be written."

What the Democratic Party needs is an economic message that: addresses the real problems that many Americans face on a daily basis (instead of callously insisting that "America is already great"); and resonates with their very real frustrations and anxieties. Both politically and as policy, the idea that the rising tide of economic efficiency and growth would lift all boats has failed. It is time for something new.

Unfair World

Investment bankers and hedge fund managers work hard for long hours. They make millions, tens of millions, or hundreds of millions of dollars per year. Hotel housekeepers, retail store cashiers, fast food restaurant employees, and migrant agricultural workers also work hard for long hours. They often make less than twenty thousand dollars per year. Many work multiple jobs to make sure their families have enough to eat.

Homebuyers who were overly optimistic or who didn't read their mortgage terms carefully are kicked out of their homes, their savings obliterated and their credit shredded. The banks and law firms that foreclosed on them, using false affidavits robosigned by fictional executives, escape with nominal monetary penalties. Their executives and partners go on with their lives, completely undisturbed.

For-profit universities entice students to take out thousands of dollars of loans, then fail to give them the education they need to get a job. The students face unshakeable debt burdens for the rest of their lives. University executives and shareholders enjoy large bonuses and rising stock prices.

Children born to well-off families have the full attention of two highly educated parents from birth. They go to private pre-schools from age two and then to economically segregated elementary schools where they are surrounded by equally fortunate peers. Their afternoons are filled with organized sports, music lessons, and other enrichment activities. Children born to poor families are often raised by only one parent who did not finish school and works long hours to make ends meet. They make do with haphazard child care arrangements until entering kindergarten at an underfunded public school, already years behind grade level.

This is the world we live in. There is a word for this world: unfair.

It doesn't take a philosopher to convince you that things aren't fair in contemporary America. Across society, people's material rewards have little to do with how hard they work, let alone any measure of moral worthiness. People who harm their communities in different ways suffer vastly different penalties, depending on whether they wear suits to work and what kind of lawyers they can afford. Children face enormously unequal opportunities based solely on what families they were born into.

None of this is a surprise. The only shocking thing is how desensitized we are—how little we notice this ocean of unfairness that we swim in every day.

One of the great accomplishments of economism has been justifying this callous indifference. We know that inequality on our current scale is unfair, but we are told that it is the unavoidable price of material progress. Differences in rewards are the necessary incentive for work and innovation; according to the law of supply and demand, the amount that people earn is dictated by their marginal productivity. That's just the way things are, in this best of all possible worlds.

This is a profoundly unnatural way of seeing the world. But like any great ideology, economism makes it seem natural. Extreme inequality is a fact. Through the lens of economism, however, its moral dimension vanishes. Instead, inequality appears as the unavoidable byproduct of something we are all supposed to want: an economic system that maximizes efficiency and therefore aggregate output.

But this is not the only way to see the world. Another way to look at the economy is to ask whether it is fair: whether children enjoy roughly similar opportunities to gain an education and job skills; whether people who provide goods and services for others take home a reasonable share of the value that they create; and whether the fruits of good fortune are shared broadly rather than being monopolized by a lucky few. The economic system of the contemporary United States clearly fails these simple tests.

It's no surprise that conservative Republicans prefer efficiency to fairness. As I discuss in Economism, policies based on a simplistic notion of economic efficiency—such as cutting taxes, eliminating the minimum wage, forcing people to pay more for their health care, or deregulating the financial system—generally work out to favor the rich.

We Democrats, however, should embrace the lens of fairness. First, fairness is a category that human beings grasp intuitively and care about deeply. If you doubt this, just spend time with any young child. Even the Tea Party was motivated in large measure by the perception of unfairness—in particular, the idea that "other people" were receiving undeserved government handouts.

Second, going back to marketing first principles, fairness is a differentiated message. During the decades of economism lite, Democrats offered the public a more nuanced version of what Republicans were selling. The Republican line was, simply, "Markets good, government bad." (House Majority Leader Dick Armey said, "The market is rational and the government is dumb" (The Freedom Revolution, p. 316).) The Democratic comeback was, "Markets are generally good, but government should correct for identified market failures." This is better economics and will produce sounder policies. But, as marketing, it is a complete non-starter. When Democrats are forced to argue that they are actually better for economic growth because they will reduce deficits, lower interest rates, invest in infrastructure, and promote international trade, they may be right, but they are failing to give voters a clearly differentiated reason to pull the lever for them—especially voters who have trouble seeing how those policies have benefited them.

This is not to say that our party has wholly embraced efficiency and completely abandoned fairness. Some Democratic proposals are framed as increasing fairness—particularly that old stand-by, "middle class" tax cuts. But the message has been mixed at best: that competitive markets are the source of prosperity, with specific policies on the margins (social insurance programs, tax cuts, child tax credits, education tax credits, etc.) motivated by security or fairness. More often it has simply been muddled.

Third, fairness is the right goal to strive for today. Economists often cite a supposed tradeoff between efficiency and equality. Arthur Okun expressed the standard view this way:

"The contrasts among American families in living standards and in material wealth reflect a system of rewards and penalties that is intended to encourage effort and channel it into socially productive activity. To the extent that the system succeeds, it generates an efficient economy. But that pursuit of efficiency necessarily creates inequalities" (Equality and Efficiency, p. 1).

Recent empirical research, however, shows that this famous tradeoff may not exist; instead, higher levels of inequality are actually associated with lower levels of economic growth. In any case, fairness is different from equality. Most people are willing to tolerate unequal outcomes that do not violate their sense of fairness.

Most important, the fetishization of efficiency assumes that our primary goal as a society should be expanding the pie—increasing the total volume of goods and services available for consumption. This assumption is crucial to economism: the ultimate justification for unregulated markets is that they theoretically result in the production of more stuff.

At this moment in history, however, what a rich country like the United States needs is not more stuff. We need to share the stuff we have in a more fair, more morally acceptable way. In 1980, the bottom 90% of households owned 32.9% of all household wealth and took home 69.9% of national income; by 2012, those figures had fallen to 22.8% and 59.0%, respectively (see Saez and Zucman, Appendix Tables B1, B25). In other words, if we could restore the 1980 wealth and income distribution, the bottom 90% of households would enjoy a 44% increase in net worth and an 18% increase in income—an improvement in living standards that would take decades to achieve in our current economic system.

Even for the affluent, it's not clear that having increasingly expensive toys is improving their well-being in any meaningful way. When economist Robert Frank went shopping for a new grill in the 1990s, he found that you could buy a perfectly good grill for $250—or you could pay $5,000 for a grill with a rotisserie, a smoker, and two 15,000-BTU range-top burners. A year later, the high-end model had grown a wood-fired pizza oven and cost $13,000. By the mid-2000s, you could buy a grill with a lobster steamer and a built-in 35,000-BTU wok, or you could pay $35,000 for an entire "cooking suite." Rising inequality has fueled a consumption arms race in which the fortunate few pay ever-increasing amounts solely to have the "best" product in any category—ultimately benefiting no one except luxury goods companies.

We have turned the dial so far toward efficiency, for so long, that we have forgotten the point of a larger pie. As a society, we should value economic growth because it improves living conditions for every American. If the vast proportion of the gains flow to a small fraction of the population, the system has failed.

This may seem a controversial argument. After all, it is economic growth that gave us the world we live in today: with indoor plumbing, electric lighting, automobiles, airplanes, air conditioning, antibiotics, and everything else that makes the world far more livable than it was just two centuries ago. Those changes benefited virtually everyone.

But, as Robert Gordon shows in The Rise and Fall of American Growth, those epochal improvements in the the way we live all occurred between 1870 and 1970. Since then we have gotten brighter light bulbs, faster cars, cheaper plane fights, more efficient air conditioners, and more powerful antibiotics (in part because bacteria have developed resistance to the old ones)—but nothing as transformative as the public water supply or motorized transportation. As Peter Thiel likes to say, "We were promised flying cars, and instead what we got was 140 characters." But even flying cars would represent much less of an advance over ordinary cars than the latter did over horse-drawn carriages.

Today, I think it is clear that there is much more potential to improve ordinary families' standard of living (and general happiness) by more fairly sharing what we can already produce than by engineering new ways to make a bigger and fancier pie. We have the technological knowledge, resources, and productive capacity to provide everyone in our country with safe water, good food, comfortable clothing, decent housing, a quality education, and world-class health care (more on that last one in a moment)—yet millions of people lack one or more of these basic necessities. Lifting people out of poverty and protecting them from the anxiety caused by economic insecurity is a far more pressing goal than designing cars that fly or that drive themselves.

If there is any doubt about where the single-minded pursuit of economic efficiency has led us, consider the embarrassment that is the American health care "system." We insist on treating health care as a set of goods and services for consumption, rather than thinking of health as a set of outcomes that we want to achieve. As a result, we have broken all world records in the production of health care (doctor's visits, tests, procedures, prescriptions, and so on) while lagging behind most other advanced countries in actual health. Life expectancy is lower in the United States than in 22 out of the 28 European Union countries—and the other six were all members of the Soviet bloc.

No morally aware person thinks that whether you live or die, or how much you suffer, should depend on your bank balance. Nevertheless, most Democrats agree with Republicans that health care should be distributed by markets, whose motive force is consumers' willingness to pay for different goods and services. I discuss this absurdity at length in Economism. But our health care system fails in yet another way: It doesn't even allocate resources where they provide the most value—the very definition of economic efficiency. We know where we need to invest to improve aggregate health outcomes and save money in the long term: neo-natal care, preventive care, vaccines, nutrition, clean air and water, better management of chronic diseases, and end-of-life palliative care, to name a few. Instead, our medical-industrial complex—driven by the profit motive—overproduces specialists in expensive procedures, chases after blockbuster drugs to treat high-profile diseases (with little long-term success), and devotes princely sums to squeezing a few more days of life out of terminally ill patients.

There was a time, perhaps, when competitive markets helped spur the development of the drugs, procedures, and medical devices that are the hallmarks of modern medicine. As Robert Gordon shows, there was enormous improvement in both medical technology and health care outcomes in the middle of the past century—and not so much since then, despite skyrocketing expenditures. But today, the greatest potential for improving our overall health lies not in developing fancy new tools, but in making better use of what we already have. One might argue that health care is not representative of the economy as a whole. But health care today is almost one-fifth of the U.S. economy; saying that it is not representative is like saying that your legs are not representative of your body. And the problems of our health care system are evident, to greater or lesser degrees, throughout our economy.

Figuring out a way to more fairly share the fruits of our collective labor, without undermining the incentives that enable us to produce as much as we do, is not a trivial task. My point here is only that, as a society, we should be pursuing the goal of greater fairness in our economic system; if it comes at the cost of reduced efficiency, so be it. I am not calling for an end to capitalism, the economic system that made our country what it is and from which my family has benefited greatly. I am calling for a reorientation of the ends that we hope to achieve through our economic system. Much as I would like a self-driving car, I would rather drive myself to work if it means more people can live without worrying about how to feed their families until the next paycheck.

In summary, we Democrats should base our economic vision on the principle of fairness, rather than insisting that we are better architects of economic efficiency than the Republicans. Orienting ourselves around fairness is better politics, because it offers a differentiated message that is more likely to appeal to people left behind by the past four decades of economic "progress." It is better policy, because ordinary families will be better served by a more fair distribution of the fruits and risks created by our economy than by squeezing out a few extra tenths of a percentage point of output growth.

Building a More Fair World

Fairness, like any moral category, has different meanings to different people. Some people think that fairness requires that each person be compensated in accordance with her marginal product—roughly speaking, you get to consume the same amount that you produce. I am not writing for those people.

I am writing for people who believe that a person's opportunities should not depend on accidents of birth such as her skin color, national origin, how many parents she has, or how much money they make; that individuals should not have to bear the full cost of unforeseeable events such as illness, injury, layoff, or rapid shifts in the labor market; that the benefits of good fortune should not be concentrated on a lucky few; and that people who want to work hard and build a better future for their family are entitled to a decent standard of living and freedom from constant worries about their finances and their health. It is up to us to establish a definition of fairness in the political imagination and paint a picture of what it means in practice.

Fairness can serve as an organizing theme for many of the causes most dear to progressive Democrats. It is only fair that people's life choices should not be constrained by factors beyond their control, such as race, national origin, gender, or sexual identity. This does not mean that society or the law must be "color-blind" in the narrow sense prescribed by the Supreme Court's conservative bloc in recent decisions. For example, we know that both African-Americans and women face particular disadvantages for historical reasons and because of ongoing racism and sexism, whether explicit or implicit. Therefore, it is fair in principle to "level the playing field." This may be tricky to achieve in practice, but it remains a legitimate goal to strive for.

It is incontrovertible that the justice system should be fair, yet ours falls far short of that ideal. Most obviously, because of the importance of lawyers in our adversary system, the amount of justice a person can secure often depends on how much money she has. In the wake of the financial crisis, banks illegally foreclosed on millions of people (see Chain of Title by David Dayen), yet the vast majority of homeowners did not have lawyers to protect them. This unfairness is particularly egregious in the criminal justice system, as documented at length by Matt Taibbi in Divided. State courts, often funded by counties and municipalities, systematically fail to provide poor defendants with the adequate representation required by the Sixth Amendment. Middle-class people charged with minor offenses make bail and walk free; poor people stay in jail, lose their jobs, eventually plead to time served in order to get out, and face a lifetime of hurdles because of their conviction record. (See Walker v. Calhoun, for example.) Contrast this with white collar executives who cause billions of dollars of losses and, if they are unlucky enough to be charged, benefit from the best defense money can buy. A fair system would ensure that more prosecutorial resources are targeted at crimes that cause the most damage to society, that people do not sit in jail because they are poor, and that all defendants are represented by motivated, competent attorneys.

Beyond civil rights and criminal justice, fairness is the common ground for what must be the central platform of the Democratic Party: addressing poor and middle-class people's central economic concerns in the five crucial areas of education, housing, health, employment, and retirement.

Education: A minimum requirement of a fair society is that each child's opportunity to gain an education and succeed in the world should not depend on her family background or financial circumstances. Public school funding should be based not on local property taxes, which are vastly skewed in favor of rich towns, but on educational needs. Recent research indicates that pre-kindergarten programs can have the greatest impact on children's long-term educational and work outcomes, yet good pre-schools today are largely reserved for the rich. Instead, publicly funded school should begin at age three, with subsidies or tax credits to make paid child care accessible beginning at birth. More enrichment activities that well-off families currently pay for—athletics, arts, music, theater, and so on—should be provided during and after school. Only then will poor and middle-class children have even the slightest chance of competing with the scions of the rich. College students should no longer have to gamble that their degrees will be worth huge amounts of debt. Public higher education should be available at no cost for all students who graduate from high school, full stop. This is the least our society should provide in a world where a decent education is a necessary prerequisite to stable employment.

Housing: Soaring inequality has created a housing crisis for low- and middle-income families. Increasing wealth at the top end of the distribution has inflated the value of real estate, particularly in cities such as San Francisco, Boston, and New York, reducing the amount of affordable housing available for rent. Yet at the same time, our nation's housing "policy" remains heavily skewed toward homeowners, who benefit from more than $130 billion in subsidies each year, including the mortgage interest tax deduction, the deduction for local property taxes, and the tax break for the sale of a primary residence. (Most of that $130 billion flows to the well off, because low-income homeowners typically do not itemize their deductions and therefore cannot benefit from the mortgage interest deduction.) At a minimum, the mortgage interest deduction should be phased out and replaced by a tax credit that can be claimed by renters as well as owners. More generally, our goal should be ensuring that all working families can afford a decent place to live, which requires programs that support the construction of affordable housing.

Health Care: Anyone with a conscience would agree that it is unfair for some people to die or endure extreme suffering simply because they are poor. Politicians of every party and ideology agree that decent health care should be universally accessible. But while we all believe that it is unfair to deprive some people of needed health care, as a society we nevertheless insist on distributing it via markets—more or less highly regulated, but markets all the same. The result is a doubly unfair system. Poor people start off with less generous health insurance, have less access to services, and pay more out of pocket when they go to the doctor or buy medications. And then people who develop serious or chronic illnesses, generally through no fault of their own, pay more than healthy people—often thousands or tens of thousands of dollars more each year. The underlying problem is that markets naturally want to allocate health care resources to rich people; contorting those markets to produce morally acceptable results is difficult if not impossible, as demonstrated by the heroic struggles of Obamacare. The most fair solution is to create a basic, universal health insurance plan open to all Americans and largely funded by general tax revenues. The most direct path to getting there is expanding Medicare to cover all people. This is the simplest way to stop punishing the poor for being poor and the sick for being sick.

Employment: Since 1980, labor productivity has almost doubled, but the primary beneficiaries have been companies and their shareholders, not the employees who do the actual work; hourly earnings for nonsupervisory employees, adjusted for inflation, have increased only 9% over the same period. To restore balance to our economy, Democrats should return to supporting workers, not just businesses. One reason for labor's shrinking slice of the economic pie has been the decline of unions, once the bedrock of the Democratic Party, which have found it increasingly difficult to organize in the face of hostile employers, often backed by the National Labor Relations Board. Making it easier for workers to organize is simply a way of leveling the playing field between employers and employees. More generally, government policies should be explicitly aimed at fostering full employment, which will make it easier for people to find jobs and strengthen workers' bargaining power, enabling them to claim a fair share of the value that they create.

Retirement: People who work hard for forty or more years should be entitled to enjoy a decade or two of comfortable retirement. Over the past few decades, however, most companies have shifted the risk of retirement onto their employees. As a result, too many Americans live in fear of not being able to retire or outliving their savings. Among people in the bottom half of the income distribution who have defined contribution retirement plans (either IRAs or employer-sponsored plans), the average balance was only $39,000 in 2013, down from $51,000 in 2007. Social Security is the only thing standing between many retirees and real poverty—and the average worker's retirement benefit is less than $1,400 per month. Now is the time to protect and expand Social Security, not to reduce benefits as envisioned by Republicans and even agreed to by President Obama as part of the infamous 2011 "grand bargain."

These are the core goals we must pursue to create a better economy—fairness in education, housing, health care, employment, and retirement. Some of the policies proposed above will cost money. We can find that money by reforming the tax code to more fairly distribute the cost of living together in society. In order to reduce the inequality created at birth, the estate tax should be replaced by a progressive inheritance tax, in which each person pays a percentage of the amount that she inherits. This tax should have an exemption amount around $1–2 million, to allow middle-class families to pass along modest fortunes free of tax, but should then be applied at a high rate of 50 percent or more, or even 90 percent for amounts over $1 billion. To prevent the continuing concentration of wealth in the hands of the super-rich (predicted by Thomas Piketty in Capital in the Twenty-First Century), the special tax breaks for investment income (interest, dividends, and capital gains) should be eliminated. Not only should investments be taxed at the same rate as labor, but gains on assets should be recognized as they accrue, not deferred until those assets are eventually sold, perhaps decades later. (For tax policy fans, this also means that step-up of basis at death should be eliminated.) Deductions and exclusions that massively favor the upper-middle class and the wealthy, such as those for mortgage interest, employer-sponsored health plans, defined contribution retirement plans, and charitable contributions, should be eliminated or converted into tax credits that benefit all taxpayers.

Finally, fairness toward future generations demands that we become more responsible about managing our environment and limiting the impact of climate change. All of humanity, from the past into the foreseeable future, must share one planet. Wreaking havoc on the environment so that we can consume more stuff than our ancestors, with potentially devastating consequences for our descendants, is colossally selfish—like one child eating a whole cake and not letting her siblings have any, only multiplied by a factor of a trillion. During our brief lifespans, we must care for our planet so that our grandchildren and their grandchildren can enjoy the natural resources and habitable climate that we experience today. One common counter-argument is that curbing greenhouse gas emissions will reduce economic growth and hence the standard of living of people alive decades from now. There is perhaps no more staggering example of the fundamental error of valuing efficiency over fairness.

None of the policy objectives outlined above will be easy to accomplish. Donald Trump is still president of the United States; conservative Republicans still control both houses of Congress, the Supreme Court, and a majority of state governorships and legislatures. Medicare for all, universal pre-school, and a carbon tax are still as far from becoming reality as they have ever been. The campaign to build a more fair society will be a long one. But the first step is to change the terms of debate.

Beginning in the 1950s, conservatives undermined and ultimately overthrew the New Deal consensus by putting forward a new vision of society based on individual liberty, small government, and economic growth powered by free markets. That vision dominates the political landscape today, with Democrats only adding a few qualifiers in the margins. If we want not only to regain political power but also to use it to create an economy that serves ordinary families, we first must offer a different image of what America can be. We must convince the electorate that it is fairness that matters, not a marginal percentage point of economic growth that will largely be skimmed off by those who need it the least (and then spent on nuclear-powered grilling stations). We must tell a story about a better world in which all people who work hard can enjoy a fair share of the bounty our economy can produce, one that emphasizes the way we relate to each other in society rather than the total pile of stuff that we collectively produce.

Fairness is not just a rallying cry. It is the unifying theme for fundamental policies that will improve people's lives in the crucial areas of education, housing, health care, employment, and retirement, reducing inequality and improving the material standard of living of ordinary Americans. It also offers something new to the many people who feel left behind on the wrong side of the inequality gap, who have been told that economic growth will solve all their problems but whose own lives have only seen less job security, more debt, and higher health care costs.

This is not some revolutionary new gospel, but a return to the roots of the modern Democratic Party. In his 1941 "Four Freedoms" speech, President Franklin Roosevelt described the principles that Americans would soon be fighting and dying for in these words:

"There is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are: Equality of opportunity for youth and for others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few. The preservation of civil liberties for all. The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living."

These are the core principles of the Democratic Party. They describe the world that most people want to live in. Markets and economic efficiency are tools that may be used to achieve (some of) these ends, not ends in themselves. Ultimately, our goal must be the better, more fair society that Roosevelt envisioned three-quarters of a century ago.

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