There are many competing interpretations for why Hillary Clinton lost last fall’s election, but most observers do agree that one—economics—played a big role. Clinton simply didn’t articulate a vision compelling enough to compete with Donald Trump’s rousing, if dubious, message that bad trade deals and illegal immigration explain the downward mobility of so many Americans.

As it happens, Clinton did have the germ of exactly such an idea—if you knew where to look. In an October 2015 op-ed, she wrote that “large corporations are concentrating control over markets” and “using their power to raise prices, limit choices for consumers, lower wages for workers, and hold back competition from startups and small businesses. It’s no wonder Americans feel the deck is stacked for those at the top.” In a speech in Toledo this past October, Clinton assailed “old-fashioned monopolies” and vowed to appoint “tough” enforcers “so the big don’t keep getting bigger and bigger.”

Clinton’s words were in keeping with Bernie Sanders’s attacks on big banks, but went further, tracing how concentration is a problem throughout the economy. It was a message seemingly tailor-made for the wrathful electorate of 2016. Yet after the Ohio speech Clinton rarely touched again on the issue. Few other Democrats even mentioned the word monopoly.

The pity is that Clinton’s stance wasn’t simple campaign rhetoric. It was based on a substantial and growing body of research—much of it first presented in the pages of this magazine and since validated by the Obama administration’s own economists—that confirms that consolidation is at the root of many of America’s most pressing economic and political problems.

These include the declining fortunes of rural America as farmers struggle against Big Ag. It includes the fading of heartland cities like Memphis and Minneapolis as corporate giants in coastal cities buy out local banks and businesses. It includes plunging rates of entrepreneurship and innovation as concentrated markets choke off independent businesses and new start-ups. It includes falling real wages, as decades of merger mania have reduced the need for employers to compete to attract and retain workers.

Monopoly is a main driver of inequality, as super-fat profits concentrate more wealth in the hands of the few. The effects of monopoly enrage voters in their day-to-day lives, as they face the sky-high prices set by drug company cartels and the abuses of cable providers, health insurers, and airlines. Monopoly provides much of the funds the wealthy use to distort American politics.

For these and other reasons, the Clinton campaign, along with the White House and the Democratic Party, made a huge mistake by failing to flesh out their anti-monopoly message. Yet the full dimensions of the missed opportunity are greater yet. Properly understood, the anti-monopoly frame doesn’t just offer a way to talk to Americans about their material needs; it’s also a way to connect to deeply and broadly held American ideals, like the freedom to be one’s own boss and the liberty to choose one’s own course.

For most of the twentieth century these values were hallmarks of the Democratic Party. This tradition, which dates to the time of Thomas Jefferson, found expression in anti-monopoly policies designed to protect Americans not just as consumers, but also as citizens and producers, from domination by the powerful. Yet today most Americans associate terms like “freedom” and “liberty” with Republicans, even as that party appears to be preparing to deliver something more like autocracy.

This is a tragedy. Going forward, Democrats should make anti-monopoly—in the name of liberty, democracy, community, family, and innovation—the foundation of their economic thinking and the leading idea of their economic messaging. If they do, Democrats will be attacking what’s actually wrong with America. They will also swiftly begin to split the Trump vote and to rebuild their own shattered party.

The idea that America has a monopoly problem is now beyond dispute. Since 2008 there have been more than $10 trillion in mergers, and the pace of deal making continues to accelerate, with 2015 setting a record for the most mergers in a year and October 2016 setting the record for the most mergers in a month.

In 2016, London’s Economist magazine published three front-page stories on America’s monopoly problem. The magazine reported that two-thirds of all corporate sectors have become more concentrated since the 1990s, that corporations are far more profitable now than at any time since the 1920s, and that an inordinate amount of profit goes to a very few immense investment funds, such as  BlackRock and State Street. In April, the White House Council of Economic Advisers came to much the same conclusion, and called for a “robust reaction to market power abuses.”

Ordinary Americans didn’t need experts to explain the danger of monopoly. Populist movements like the Tea Party, Occupy, and the Sanders campaign have all focused to varying degrees on the threats posed by concentration. Polls show that a majority of Americans now believe big corporations are too powerful. Yet through 2016, mainstream Democrats failed to admit that this growing fear of monopoly power might affect how citizens vote.

Consider some of the mainstays of Democratic confidence going into the fall, and how these collided with the real world.

Party leaders were, for instance, right that millions of Americans today are grateful for Obamacare. But the travails of Obamacare also reinforced for millions of other Americans that hospital, insurance, and pharmaceutical monopolists are driving up costs and cutting back on care, and that the administration had no plan to stop them.

Party leaders were also right that the U.S. economy is on sounder footing than when Barack Obama took power. But while most citizens are in less-dire straits than they were eight years ago, they also have more time to consider the rest of their lives. They see corporations like Comcast blocking them from better internet and charging too much for their entertainment. They see giant enterprises like Dean Foods and Tyson’s driving down the quality of their milk and chicken, and Monsanto driving up the cost of seeds and pesticides. They see a few huge corporations dominating the sale of home mortgages, groceries, office supplies, and restaurant meals, and gouging consumers when they buy everything from eyeglasses to cowboy boots.

Party leaders were also right that the rate of joblessness has fallen sharply from 2009. But those figures do nothing to address the fact that many of those jobs feel very different from the ones that were destroyed in the crash of 2008. For millions of working Americans, the wonder technologies of the last decade are fast turning into oppressive systems of direct control. Consider the truck drivers, warehouse workers, receptionists, nurses, and cabbies who find their actions and even their speech monitored and directed in ever-increasing detail. Or consider the white-collar workers in the Seattle headquarters of Amazon, where, according to a recent New York Times feature, executives run a “continual performance improvement algorithm on its staff.” Such forms of control, especially when wielded by giant corporations, tend only to amplify the sense of powerlessness.

Mainstream Democrats are also right, in their post-election assessments, of the need to rethink the challenge of reaching voters in the era of Facebook and Reddit. But taking on fake news is just a piece of the whole. Party leaders must also address the fact that Facebook actively manipulates the flow of real news between journalist and citizen. And that Amazon actively manipulates the flow of books between America’s authors and readers. And that by creaming off more than 80 percent of all online advertising revenues, Facebook and Google are helping to drive traditional news publishers and even online news start-ups out of business.

Here, too, party leaders ignore monopoly at their political peril. Not only do the monopolists directly threaten Democrats’ ability to communicate with one another, and with the rest of Americans, but a failure to deal with the dangers posed by Facebook and Google soon will enrage the millions of Americans who actually care about the integrity of the nation’s journalism, most of whom vote.

The election of a man like Donald Trump is precisely what the Democratic Party was first built, and then rebuilt, to prevent.

When Thomas Jefferson and James Madison founded the party in 1792, their goal was to oppose Alexander Hamilton’s plan to centralize power in a financial aristocracy tied to the state. In place of Hamilton’s vision of an America in which a few capitalists managed most business, leaders of the new party envisioned a political economy in which fighting monopoly and the concentration of power would foster the creation of independent, self-governing citizens.

As any casual reader of history knows, this experiment in radical economic democracy did not last. In the 1840s, southern planters seized the party and used it to protect their slave estates. After the Civil War, a new southern elite wielded the party as a shield against northern capital and the will of the free farmer, white and black. For a short while the new Republican Party took up the flag of liberty. But the GOP was soon captured by the emerging class of Wall Street tycoons and Gilded Age monopolists.

Only in 1896, during William Jennings Bryan’s run for president, did a group of white, male citizens dedicated to anti-monopolism recapture the levers of control within the Democratic Party. This time they held on, and for most of the next 100 years, through the administrations of Woodrow Wilson, FDR, Harry Truman, and beyond, a prime purpose of the Democratic Party was to protect the worker, farmer, shopkeeper, and other independent citizens and innovators from concentrated power.

During these decades, Democrats understood that in making markets and regulating competition they were also establishing a set of political economic checks and balances that helped citizens maintain control over their own destinies and those of the communities in which they lived. In defending this vision, leaders like President Wilson used much the same language as had Jefferson and Madison. “There is no salvation for men in the pitiful condescensions of industrial masters,” Wilson said during the 1912 campaign. “Guardians have no place in a land of freemen.”

In the years between the election of Wilson and the beginning of World War II, Americans built the world’s first modern political economy designed to preserve both liberty and democracy, and also to enable economic growth and innovation. Guided largely by the thinking of Supreme Court Justice Louis Brandeis, they did so by devising three distinct but coordinated approaches to competition policy.

In the case of network industries like electricity, railroads, and other “natural monopolies,” they held that the public must directly own the corporation or regulate its actions. In the case of industrial activities like manufacturing cars or chemicals, citizens accepted high degrees of vertical integration and concentration of capital, but they also insisted that all such corporations compete with at least three or four other large corporations making the same products. In all other sectors of the economy—such as retail, farming, and banking—the aim was to promote as wide a distribution of power and opportunity as possible by preventing concentration almost everywhere. Across the political economy, but especially in sectors where capital and power were highly concentrated, they promoted unions to protect the worker.

The result was a revolutionary success. For years, conventional wisdom among mainstream Democrats has held that the New Deal was mainly an experiment in concentration and socialization. Yet with a few exceptions, the main thrust of both the Roosevelt administration and Congress was to promote, in the frustrated words of one of the main advocates of centralization under FDR, the “atomization” of American business. Indeed, the U.S. economy, as we reported in the last issue, became steadily less consolidated year after year from the mid-1930s until the early 1980s.

Besides delivering to citizens much of the “industrial liberty” they had demanded, this anti-monopolism also laid the basis for a period of rapid technological advance, material prosperity, and financial stability that helped make possible the broad expansion of American democracy in the great mid-century battles for civil rights. It was a vision that bridged the racial divide; one of the greatest advocates of the Brandeisian vision was Supreme Court Justice Thurgood Marshall. It was a vision that even bridged the two parties: Presidents Dwight Eisenhower and Richard Nixon both maintained strong antitrust operations during their administrations.

In 1792, Madison wrote that it was the “independent” citizen who served as “the best basis of public liberty, and the strongest bulwark of public safety.” Thus it proved in the twentieth century. For decades, the Democratic Party’s overwhelming electoral success was due in no small part precisely to the fact that it delivered an important form of political economic freedom to the businessperson, worker, shopkeeper, and farmer. These free citizens then returned the party to power.

The end came after the election of Ronald Reagan in 1980. Reagan brought to power a group of lawyers and economists—loosely affiliated with the University of Chicago—dedicated to overturning the anti-monopoly philosophy of the Democrats. Key leaders of the group included the economist Milton Friedman and the lawyers Richard Posner and Robert Bork. The Reagan radicals argued that instead of using competition to protect liberty and democracy, the laws should instead promote only efficiency, theoretically in the interest of the “consumer.” Even straight-up monopoly was fine, they said, as long as the monopolist promised to lower prices.

In previous decades, Democrats would have moved swiftly to smash Reagan’s new pro-monopoly policies. But in the late 1970s a new generation of party leaders had begun to embrace aspects of the libertarianism of the Chicago Schoolers (or, as the Democrats would later call it, neoliberalism). Unlike traditional Democratic ideology, which holds that all economics is political, libertarian ideology holds that markets are self-regulating and inherently competitive and that monopolies are naturally efficient in ways that are good for “consumers.”

Many among this new breed of Democrats also embraced the corporate monopolists themselves, along with their partners on Wall Street, and competed with Republicans for campaign contributions from the biggest of the big. In the 1990s, this way of thinking and acting lay behind Bill Clinton’s decisions to unleash concentration in the banking, media, energy, and defense sectors, and to embrace a new approach to trade policy that largely opened the U.S. border to foreign monopolists, such as the Brazilian bankers who in recent years have taken over Anheuser-Busch, MillerCoors, Kraft, Heinz, and Burger King. (Late in his administration, Clinton partially corrected course by bringing a tough antitrust suit against Microsoft. The Obama White House followed a similar trajectory: early indifference followed in the last year by vigorous, if insufficient, attempts to take on power.)

Most damaging, the Democratic Party almost entirely failed to live up to its traditional promise to protect the independent farmer, shopkeeper, and businessperson. Instead, party leaders sat by quietly as Wall Street financiers armed with giant corporations expropriated the livelihoods of millions of American families.

This generation of Democrats also adopted a new party hero in place of Jefferson and Madison. That new hero, blazoned in the name of the Brookings Institution unit that supplied many of the top-shelf financial and banking experts of the Obama administration, was that father of Wall Street and preacher of monopolism, Alexander Hamilton.

Some in the Democratic Party have finally awakened to America’s monopoly problem. Last June, Senator Elizabeth Warren delivered what was the most important anti-monopoly speech in America by a major figure since Franklin Roosevelt. “Concentration,” Warren said, “threatens our markets, threatens our economy, and threatens our democracy.”

In July, reformers succeeded in writing strong anti-monopoly language into the Democratic Party platform, the first time since 1988. In September, Renata Hesse, Obama’s acting assistant attorney general for antitrust, delivered a speech that went a long way toward overturning the Chicago School approach to antitrust.

But with the exception of Warren, most of today’s Democrats, to the extent that they even understand the threat posed by monopoly, still treat competition policy as one of many potential solutions to the problems we face, an arrow of roughly equal importance with all the other arrows in the quiver, rather than as a philosophy able to guide how we see and think and act in all corners of the political economy.

Donald Trump has proved that economic populism is smart politics. If Trump perfected a version of dangerous populism, based on resentment, xenophobia, and paranoia, then anti-monopolism is smart populism. Americans—all of them—have every right to be angry. A main job for Democrats now is to explain that they should direct that anger not at immigrants or China, but at monopolists and the policies that empowered them.

Anti-monopolism will also provide Democrats with many other political benefits. It will, for instance, help provide a fix for the party’s Electoral College problem, which has bitten Democrats hard twice in the last sixteen years

One of the by-products of monopolization is that business is becoming concentrated in a few cities, mainly along the coast. Consider St. Louis. In 1980, twenty-two Fortune 500 companies called the city home; today only nine are left. In 1979, per capita income in the metro area was 89 percent as high as in New York; since then it has fallen to 77 percent. Even when St. Louisans launch smart companies—like Twitter and Square—these swiftly flee to the new metropoles.

This, in turn, leads to a concentration of certain kinds of people who tend to think and vote in certain ways, in fewer places. (The Washington Monthly has documented this phenomenon in depth in recent years: see “Terminal Sickness,” March/April 2012; “Bloom and Bust,” November/December 2015; and “The Real Reason Middle America Should Be Angry,” April/May/June 2016.)

It is no coincidence that this pattern of growing regional inequality looks remarkably like the 2016 electoral map, with coastal states blue and a giant “red wall” running down the center of the country. Donald Trump’s success was partly due to the fact that he spoke to the fears of voters in this increasingly stripped-out red zone.

In the short term, anti-monopolism will give the Democrats a believable pro-business, pro-liberty message that will play in almost every section of every state, and indeed can be wielded immediately by state AGs and state legislators. Take on Big Ag, and Democrats could start painting red counties blue by 2018. Longer term, a true anti-monopoly program will help to distribute opportunity, commerce, and people more evenly across the nation, exactly as the framers of the Constitution intended.

Anti-monopoly is also a way to get ahead of the story. The vision that Donald Trump pedaled was strikingly anachronistic. The offshoring of jobs peaked a decade ago, and since the crash of 2008 America has registered zero net illegal immigration. Monopoly, by contrast, is today’s problem. Thanks to the rise of immense platform monopolists like Amazon and Google, the fight against monopolization will continue to drive politics for years to come. Indeed, a focus on anti-monopolism will provide Democrats with a constant flow of opportunities to educate and rally voters, and to attract new classes of funders, as new takeover deals are announced.

Anti-monopolist principles will also help Democrats define their stances against much of the rest of the Trump/GOP agenda. Paul Ryan, for instance, contends that the phaseout of Medicare is necessary to control costs. Democrats will be able to counter that not only will such a move merely shift costs onto enrollees, but it also ignores the biggest driver of health costs, which is monopoly. The giant hospital groups that control regional health care markets have enormous power to jack up prices. So, too, pharmaceutical giants with drug prices. How will Ryan’s plan address that?

Perhaps best of all, anti-monopoly is a simple philosophy that can be understood by every American. Just as the Republicans have distilled their anti-government philosophy down to “Starve the beast,” Democrats can distill a fight against corporate concentration down to “Break the power.” It is also a philosophy that provides Democrats a way to reveal the true nature of the libertarianism the Republicans preach with such effect, namely that the only liberty promoted by these friends of monopoly is for the powerful few to rule the rest of us.

Anti-monopolism may give Democrats something else as well—a way to bring two big wings of the party into harmony. In the weeks that followed the election, the combination of Clinton’s big victory in the popular vote and a fresh attack by Sanders on “identity politics” had most Democrats once again arguing over whether to organize the party foremost around identity politics or economic populism.

Re-embrace anti-monopolism, and this breach will yawn less wide. After all, what folks call identity politics is in many respects just another way of saying “Don’t tell me what to do” and “Don’t tell me how to live.” At its core lies much the same desire for personal liberty that has so shaped American anti-monopolism over the last two centuries.

Almost all Americans want freedom from bosses, economic and cultural and racial. Almost everyone wants the freedom to make their own families and communities, and their own careers and characters. That’s the American way. It should again be the way of the Democratic Party as a whole.

Donald Trump rumbled about monopolists a few times during his campaign. And in the realm of “Anything is possible” he may yet deliver on his promises to block AT&T’s takeover of Time Warner and to bring an antitrust case against Amazon. But given Trump’s lusty embrace of such Wall Street monopoly makers and milkers as Wilbur Ross and Paul Singer, it’s much easier to imagine that under his administration, concentration in America will get only worse.

Our single most pressing task is to be honest about the magnitude of the crisis we face. To one side lies the threat of a democracy rebuilt as carefully stage-directed mobocracy. To the other is the danger of an America dominated by a few increasingly authoritarian command-and-control corporations.

The last time we faced such threats, after the rise of the plutocrats in the early decades of the twentieth century, it was the Democrats who spoke directly to the fears of the citizenry. Consider Franklin Roosevelt’s words in 1938. “The liberty of a democracy is not safe,” he said, “if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is Fascism—ownership of Government by an individual, by a group, or by any other controlling private power. . . .Among us today a concentration of private power without equal in history is growing.”

The flag of true American liberty—in which it is the people who rule both the government and the economy—lies in the muck. Dare the Democratic Party pick it up again? Dare the Democratic Party lead people down a third path, away from mobocracy and command-and-control corporatism toward a new democratic republic?

Of one thing we should be certain: do so, and the American people will follow.

The post Democrats Must Become the Party of Freedom appeared first on Washington Monthly.

Donald Trump wasn’t the only disaster for Democrats in 2016.

Despite a favorable U.S. Senate map—Republicans were defending twenty-four seats compared to the Democrats’ ten—and what was supposed to be a negative Trump effect on down-ballot races, the Democrats gained a measly two seats, not enough to regain the majority. They took back just six seats in the House of Representatives, where the GOP retains a forty-seven-seat advantage. At the state level, Republicans won three new governorships, pushing their total to thirty-three, the most since 1922. They now control both houses of thirty-two state legislatures, also a modern record.

If 2016 was a train wreck for Democrats, the 2018 midterms could herald an electoral version of nuclear winter. Democrats must defend twenty-five U.S. Senate seats in 2018; the Republicans, only eight. The last two midterms have been disastrous for House Democrats, who lost sixty-three seats in 2010 and thirteen more in 2014. More state legislative losses in 2018 could dig a hole so deep that even a 2020 Democratic “wave election” could still leave Republicans in control of most states’ 2021 congressional and state legislative redistricting efforts.

Meanwhile, a Jeff Sessions–led Department of Justice, abetted by a conservative Supreme Court majority, will likely go from fighting voter suppression efforts to defending and even advocating them—using the myth of voter fraud as a pretext to make it ever harder for minorities and young people to vote.

There’s a reason Republicans focus so much on making it hard to cast a ballot: they know they generally do better when fewer people vote. Indeed, for all the talk of how the Democrats need to rethink their message, the simple fact is that their biggest problem is low turnout. Even in the 2016 presidential year, sixty-four million registered voters didn’t show up. The problem is far worse in midterm elections, the real killing fields for Democrats’ dreams in recent years. In 2014, 57 percent of all registered voters—almost 110 million people—sat out the election. The ones who did show up were disproportionately white and older—and voted heavily Republican.

Democrats and their progressive allies have no choice but to keep resisting voter ID laws and polling place closures. Wherever possible, they should also push such important reforms as automatic voter registration. But the first strategy is simply playing defense, and the second is relatively small-ball offense. Far more important, both for Democrats and for the basic health of our democracy, is to finally go on the attack with a much bolder strategy. It’s time to get serious about eliminating the most powerful and ubiquitous voter suppression device of all: the traditional polling place.

Implementing “vote from home”—also known as universal vote by mail—is the most promising way to significantly increase voter turnout, especially among young people and minorities. Three states—Colorado, Oregon, and Washington—already have vote from home election systems. Here’s how it works: instead of requiring voters to cast ballots at official polling places or apply in advance for absentee ballots, these states mail ballots to all registered voters at their homes. Voters then have about two weeks to fill out their ballots and either mail them back or deliver them personally to any one of hundreds of official ballot drop sites located strategically across their states—in, for example, schools, libraries, police and fire stations, and post offices, and at secure, free-standing metal boxes that are available twenty-four hours a day. For security, election officials match the signature on every ballot with the one on the voter’s registration card.

Vote from home makes some of the standard voter suppression tactics—requiring photo ID, closing polling places to create intentionally long lines—impossible to execute. Hundreds of millions of ballots have been mailed out in the three vote from home states since 2000; fraud and other forms of electoral mischief have been non-issues. In November 2016 alone, about thirty million more Americans safely and securely voted absentee—universal vote by mail’s inferior cousin, in which voters must request and qualify for a mail-out ballot, rather than the state automatically sending one—with nary any fraud. Vote from home also saves state and local taxpayers millions of dollars each election cycle, because administering polling locations is expensive. Most important, it raises turnout. And the evidence is also mounting that the voters it brings into the fold are disproportionately young people and people of color—in other words, voters more likely to choose Democrats.

Little wonder, then, that Republican legislative leaders have fought vote from home at almost every turn. With Democrats in full control of just six state governments following the 2016 election, the path to universal vote by mail via state legislatures is not promising.

But here’s the good news. In twenty-one states that don’t already have vote from home, including several crucial electoral battlegrounds, citizens have the right to change the law via ballot initiative. In these states, proponents can go straight to the people. And people like voting from home, because it makes democratic participation easier no matter what party they belong to. (An October 2016 poll by DHM Research found that 87 percent of Oregon voters had a positive impression of the system; even Trump voters loved it.)

With enough financial backing, universal vote by mail could be on the November 2018 ballot in a dozen key states, including Florida, Michigan, Ohio, Arizona, and Nevada. If any of those measures pass, the turnout boost in 2020 could help Democrats regain the presidency, win back seats in the U.S. Senate and House, and take back enough state legislatures to minimize the damage of GOP-controlled redistricting in 2021. An even bigger turnout boost could then come in the 2022 midterms—especially if more states joined the movement by approving ballot measures in 2020.

The message for Democrats and their progressive allies is clear. It’s important to help more people register to vote. But if most registered voters don’t cast ballots—especially in midterm elections—it isn’t going to move the needle much. Unless Democrats want to live under permanent Republican control of government, their focus needs to shift—and quickly—to ensuring that already-registered voters actually cast their ballots. And that means getting vote from home up and running in as many states as possible.

To see how big an impact vote from home would have, just look at what has happened in the states that already use it. Turnout in Oregon, my home state, used to be buoyed by demographics: through the early 1980s, income and education levels were above the national average, and 93 percent of the population was white.

But by 2000, Oregon’s timber industry had collapsed and our population had grown steadily poorer and more diverse relative to the rest of the country. (Today, Oregon’s per capita income is 91 percent of the national average, and only thirteen states have a larger Hispanic share of population.) Meanwhile, from 1980 to 1998, turnout of registered voters fell from about 77 percent to 71 percent in presidential elections, and from about 77 percent to 59 percent in midterms. That decline looked set to continue.

But in 1998, Oregon voters approved a universal vote by mail system. In the 2000 presidential election, voter turnout leaped to 80 percent and has since climbed as high as 86 percent, while midterm turnout rebounded to an average of 71 percent. This decade of higher turnout happened even as Oregon lost its status as a presidential battleground and was seeing far fewer competitive statewide elections.

While some researchers have questioned the effectiveness of universal vote by mail, these critiques often measure turnout in terms of the “voting-eligible population” rather than registered voters. Vote from home obviously can’t get unregistered voters to register; it targets, instead, the far larger number of citizens who are already registered but don’t consistently vote. And much of the criticism isn’t based on the actual experience of Colorado, Oregon, and Washington, but rather draws inferences from absentee voting, which is fundamentally different. (More on that in a moment.)

It’s important to recognize that vote from home will have the biggest impact not in presidential races but in midterm elections, where turnout is much lower and skews heavily older and whiter. This is easiest to see by looking at midterm turnout among “active registered voters,” meaning the segment of the population that votes at least during presidential elections. Using that metric, the three vote from home states averaged 66 percent turnout in 2014, with Colorado and Oregon cracking 70 percent. The national average, meanwhile, was just 48 percent, according to federal Election Assistance Commission data.

A 2013 study of Washington’s system, which was adopted county by county, found that while universal vote by mail boosted a county’s overall turnout by 2 percent to 4 percent, the effect was even more pronounced for groups with traditionally lower participation rates—that is, younger and minority voters. A study of local 2015 elections in San Mateo County, one of a few California jurisdictions to experiment with vote from home, found similar results. (Asian Americans, in particular, were 30 percent more likely to vote.) And a March 2015 analysis of twenty-six states by the research organization Latino Decisions found that while just 32 percent of registered Latino voters cast ballots in those states in the 2014 midterm election, that number hit 54 percent in Oregon and Colorado.

Vote from home also increases the rate of ballot casting among younger registered voters. My analysis of 2014 data from Oregon’s complete voter files found that the turnout of eighteen- to thirty-four-year-old registered voters—again, in a relatively quiet, midterm election—was 46 percent, compared to far lower rates in traditional battleground states like Ohio (16 percent), Pennsylvania (20 percent), and North Carolina (22 percent).

Should the fact that older voters love absentee ballots give Democrats pause about expanding mail-in voting? No. There’s a crucial difference between absentee voting and universal vote by mail: since getting an absentee ballot requires extra effort, it attracts already-motivated voters. In a vote from home system, by contrast, the ballot simply shows up at the home of every registered voter. To put it in behavioral economic terms, vote from home transforms voting from “opt in” to “opt out,” at least among registered voters.

Combining universal vote by mail with automatic voter registration, as Oregon became the first state to do in 2016, is an especially powerful combination. But it’s important to recognize which reform does more to drive turnout. While 82 percent of previously registered Oregon voters cast a ballot for president in 2016, just 43 percent of newly automatically enrolled voters did—a number that would likely have been far lower in a traditional polling place election, especially in midterms.

In short: getting vote from home on the ballot in 2018 could make a material difference in 2020; by the 2022 midterms, Democrats could start gaining ground between presidential elections rather than losing it.

Twenty-four states, including the three with universal vote by mail, allow citizens to force a statewide vote on ballot measures, provided they collect enough valid signatures. Vote from home advocates should focus on getting measures on the ballot in 2018 in the dozen states where ballot measure campaigns would either be easiest to qualify or have the biggest impact. And while higher voter turnout is in Democrats’ current self-interest, advocates should emphasize the broader, nonpartisan point that making voting more convenient for everyone strengthens democracy—while saving taxpayers millions of dollars in election overhead.

The highest-impact states are Florida, Michigan, Missouri, and Ohio, battlegrounds that collectively represent seventy-three electoral votes. In all of these but Michigan, Republican incumbents will be defending their U.S. Senate seats in 2022. Funding the campaigns just to get on the ballot in these states would cost about $3 per signature, for a total of about $4 million; Florida alone would take up half of this, since an initiative would need to amend the state’s constitution. Expect Republican Party opposition to be fierce, so actually passing these measures will require a lot more money and organization. (Missouri voters in particular could be harder to persuade, since their state has very little experience with absentee voting.) But the payoff of getting vote from home passed in even one of these states would be well worth the expense.

If the 2020 presidential election is close, universal vote by mail could make a crucial difference. Consider Michigan, where 64 percent of about 7.5 million registered voters cast a ballot in 2016 and Donald Trump won by fewer than 11,000 votes. If vote from home had been in place and had boosted registered voter turnout by just two percentage points, 150,000 more votes would have been cast. If those extra voters had gone 54 percent or more for Clinton, she would have won that key state.

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Another seven states to target in November 2018 would be Alaska, Arizona, Montana, Nevada, North Dakota, South Dakota, and Utah. Getting measures on the ballot in these states would be cheap: vote from home supporters would only need to gather a total of around 450,000 signatures, at a cost of about $1.5 million, to qualify in all seven. Nevada is a vital Democratic-leaning swing state, and Arizona is moving in that direction. The others are more traditional red states, but targeting them makes sense for several reasons.

First, even reliably red states elect Democrats to statewide office: Montana has a Democratic governor; North Dakota, a Democratic U.S. senator. Second, six of these states have Republican U.S. senators up for reelection in 2020 (Alaska, South Dakota, and Montana) or 2022 (Arizona, North Dakota, and Utah), and higher voter turnout could make these seats more competitive. Third, residents in most of these states have considerable experience with voting via mailed-out absentee ballots; in Arizona and Montana, more than half of the votes cast in 2014 came through the mail. Let Republicans try to convince their own elderly constituents that their beloved mail-in ballot is actually a recipe for fraud. Finally, these states present more opportunities for proof of concept: the more places where citizens get used to vote from home, the harder it will be for opponents to keep it from spreading.

Running viable campaigns in all twelve of these states could require $50 million to $100 million over two election cycles. That may sound like a lot, but it’s a drop in the bucket compared to what is spent on traditional field operations and other “get out the vote” efforts that are less effective than universal vote by mail. Consider, too, that in California alone, marijuana supporters raised around $23 million to support the 2016 legalization effort, with almost half of that coming from billionaires Sean Parker and George Soros. A multistate vote from home effort would be a far higher impact investment for wealthy, civic-minded liberal donors.

There are also a handful of states with Democratic governors and Democratic-controlled legislatures that could pass universal vote by mail legislation without the need for ballot initiatives, such as Hawaii. California already has started down this path: in September it enacted Senate Bill 450, championed by Democratic Secretary of State Alex Padilla, which allows counties to opt into vote from home one by one. California may be a solidly blue state, but it still has almost 10 percent of the nation’s congressional seats; ensuring higher turnout there in 2018 could help Democrats make gains in the House. Illinois is another large Democratic-controlled state (with fast-growing absentee ballot use) where legislators could enact vote from home—though at present, the governor is a Republican.

While expanding universal vote by mail may be a survival strategy for the Democrats, it isn’t—and shouldn’t be framed as—a purely partisan issue. Anemic turnout is a dangerous sign for a democracy. It’s also a major reason we’ve ended up with such extremist government, since low-turnout elections amplify the influence of motivated, hyper-partisan voters on both sides. (This is especially true in party primary elections; in 2014, turnout of registered voters averaged less than 20 percent.)

Three million more Americans voted in 2016 than in 2008, but that didn’t come close to keeping up with population growth. Just 59 percent of eligible citizens voted in 2016, for the lowest turnout percentage since 2000 and the largest number of no-shows in a presidential election in U.S. history. That came on the heels of the 2014 midterms, which set an even more dismal record of 36 percent of eligible citizens casting a ballot—the lowest level since World War II.

The system we have is simply not working. Vote from home may be our last best chance—not only to stave off the damage of a Trump presidency and Republican hegemony, but also to revive a system of participatory democracy that has steadily become less and less participatory and less democratic.

The post How to Bring Home Democratic Voters appeared first on Washington Monthly.

As President Donald Trump takes office and a new Congress dawns, Democrats face what seems to be an insurmountable strategic disadvantage. As the minority party in both the House of Representatives and the Senate, they lack all the traditional tools for keeping an executive in check: no committee chairmanships, no subpoena power, and no control over the legislative agenda.

But Democrats should still take heart: they’ve been here before and won.

In the fall of 2004, Democrats were also pinned to the mat and flailing. President George W. Bush had just eked out a second-term win, edging out John Kerry. The race came down to a single state—Ohio—and a margin of just 136,000 votes. By the time a devastated Kerry conceded the race to Bush, Republicans had also strengthened their hold on the Senate by four seats—to a fifty-five-member majority—and bolstered their control of the House, outnumbering Democrats 232 to 203.

For an emboldened GOP, the new monopoly on Washington was a golden opportunity to pursue a long-cherished conservative priority: privatizing Social Security. “Younger workers should have the opportunity to build a nest egg by saving part of their Social Security taxes in a personal retirement account,” said Bush in his 2004 State of the Union address. Privatization became the top priority of the second-term agenda for Bush, who tasked advisers Karl Rove and Ken Mehlman with crafting a strategy to steamroll the Democratic minority.

But by the summer of 2005, Bush’s grand plan was in tatters. In February, just 35 percent of Americans approved of his handling of Social Security, down from 49 percent at the start of his first term in 2001. In March, Republican pollster Glenn Bolger found that 58 percent of Americans were against the proposed “private accounts.” That fall, the Bush plan died ignominiously. And in 2006, Democrats won back the House and the Senate, upsetting twelve years of GOP domination.

Bush’s Social Security plan did not crash and burn on its own. It was Democrats who steered that plane. As Amy Sullivan chronicled in these pages in May 2006 (“Not as Lame as You Think”), “Day after day, Democrats launched coordinated attacks on Bush’s ‘risky’ proposal. Without a single Democrat willing to sign on and give a bipartisan veneer of credibility, the private accounts plan slowly came to be seen by voters for what it was: another piece of GOP flimflam.”

In 2005, congressional Democrats were burdened with perceptions of being weak, feckless, and disorganized. No one today would say the same of incoming Senate Minority Leader Chuck Schumer, one of the wiliest and most aggressive strategists on Capitol Hill, or of House Minority Leader Nancy Pelosi, now battle hardened after so many years playing defense. Whatever outrages Trump might propose, Democrats in Congress can and do have the wherewithal to mount an effective resistance.

The real questions are how often and when.

Contemplating the unique dangers posed by Donald Trump, and remembering the way Barack Obama was treated by the Republicans for the past eight years, many on the left are calling, understandably, for a strategy of pure and total opposition—anything else smacks of Vichy-like collaboration. But that approach is impractical and, in the long run, self-destructive. Rather, the right approach is one of “strategic co-opposition”—an art that Republicans have, in fact, perfected and that Democrats would do well to mimic.

As a practical matter, the level of investment, coordination, and party discipline that went into the fight over Social Security is too expensive and too exhausting to replicate repeatedly, especially over issues where Democratic unity could be tough to achieve. Democrats will be defending twenty-five U.S. Senate seats in 2018 (this includes two Independents: Bernie Sanders of Vermont, and Maine’s Angus King, both of whom caucus with Democrats), and Republicans will no doubt double down on their efforts to pick off defectors in vulnerable states and districts. In states like Indiana, Montana, and West Virginia, now deep Trump territory, Democratic members out to save their seats will be tough, if not impossible, to corral. West Virginia Senator Joe Manchin, for example, has made a career as a Democratic gadfly, distancing himself from the party on issues such as guns and abortion and persistently needling his leadership.

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Democrats won their fight over Social Security because it was the perfect battleground. “You had an issue that struck a chord with the base and with the larger population,” said Ed Pagano, who was chief of staff to Vermont Democratic Senator Patrick Leahy at the time. In their hubris, Bush and his advisers believed they could not only grab the “third rail” of politics with both hands and survive, but rip it triumphantly from its moorings.

Second, Pelosi and her counterpart in the Senate, Harry Reid, managed to prevent a single defection from their ranks, even among their most vulnerable purple-state members. “I can’t remember a time when Democrats showed so much unity on messaging,” said Arshi Siddiqui, a former senior adviser to Pelosi who helped plan the charge in the House. In fact, such was the show of unity that Republicans were the first ones to blink, deserting from Bush’s sinking ship.

Third, Democrats poured enormous resources into supporting an aggressive and coordinated national effort to pound home the anti-privatization message. “We put a lot of effort into that campaign on the committees, with the rank and file, and in the caucuses,” said Siddiqui. As the deputy chief of staff and legislative director to Tennessee Representative Jim Cooper at the time, I recall daily missives in my inbox with fact sheets and talking points. Members were encouraged to hold town halls and press conferences, particularly at senior centers. The Democratic leadership also invested thousands of dollars on polling and public research to hone their message. Members used the same vocabulary of “earned benefits” and “dignity in retirement,” all of which became the dominant lexicon. “There was a laser focus, and that was the difference,” Siddiqui said.

Members in newly vulnerable seats are also wary of making “no” the predominant Democratic message heading into 2018 and 2020. “We’re going to have to stand for something that promotes economic growth, particularly in economically depressed areas,” said the chief of staff to a congressman from the upper Midwest, whose district swung from supporting Barack Obama twice to giving Trump a six-point win in November. “We need to be willing to show that we’re willing to do the right thing, and that means working with anyone who will get the job done.”

For Republicans, obstructing the work of government is consistent with their ideological goals. The more gridlock they create, the more frustrated the citizenry becomes, and the closer they get to achieving their objectives of eroding public trust in government and shrinking its footprint. And there’s no question Republicans are brilliant full-press obstructionists. In 2015, for example, the Senate managed to confirm just eleven federal judges, the fewest since 1960, according to the Alliance for Justice.

But so long as Democrats are government’s biggest champions, they bear the burden of proof to make the case for a progressive, activist, effective government. “When both parties trade off arguing that government doesn’t work, we’re the ones who ultimately bear the pain,” said one longtime Democratic strategist.

This doesn’t mean Democrats should accept the overtures of the Trump administration with trusting naïveté. Rather, the key to Democratic effectiveness in the minority is a flexible strategy of deliberate resistance and eyes-wide-open cooperation—strategic co-opposition—with the goal of maximum political and substantive gain.

Despite perceptions to the contrary, Senate Majority Leader Mitch McConnell and House GOP leaders have in fact worked with Obama and Democrats when it suited their purposes. Once in a while, the result has been actual legislation, such as the Every Student Succeeds Act (the successor to No Child Left Behind) and a multiyear, $305 billion highway bill in 2015 that let everyone in Congress take home some federal bacon.

But Republicans have also been masters of faux cooperation—lulling Democrats with a show of bipartisanship comity before sinking in the knife. The best example of this is what happened with the passage of Obamacare, when Republicans were then in the minority. In the summer of 2009, in an apparent show of good faith, McConnell allowed GOP members of the “Gang of Six” to string out negotiations over the bill before ultimately instructing Finance Committee Chairman Senator Chuck Grassley to pull the plug, months after the House had passed its version of the bill. “When Republicans like [Utah Senator Orrin] Hatch and Grassley began to write op-eds and trash the individual mandate, which they had earlier championed, as unconstitutional and abominable,” Norman Ornstein later observed in the Atlantic, “it convinced conservative Democrats in the Senate that every honest effort to engage Republicans in the reform effort had been tried and cynically rebuffed.” That helped Harry Reid muster the sixty votes he needed to end the GOP’s filibuster of the bill. But the delay also served the GOP’s purposes. When Republican Senator Scott Brown took over Ted Kennedy’s Senate seat in January, Democrats lost their sixty-vote majority and were forced to pass the final bill through reconciliation. That meant they were unable to “smooth out the rough edges and awkward language in the final bill.” And by making sure no GOP lawmakers voted for the bill, Republican leaders could claim Democratic overreach. “The narrative of Obama steamrollering over Republicans and enacting an unconstitutional bill that brought America much closer to socialism worked like a charm to stimulate conservative and Republican anger,” Ornstein concluded.

With any luck, Democrats won’t need to stoop to such Machiavellian lows. But two potential areas where this approach of strategic co-opposition could play out to Democrats’ advantage are infrastructure investment, which Schumer has already signaled as a potential area for bipartisan compromise, and tax reform.

The key to making this strategy work is for Democrats not to simply wait to respond reactively to whatever plans the Trump administration or the GOP congressional leadership offers up. Rather, they should put forward their own principles—ones that everyone in the coalition can live with, from Manchin to Sanders—and negotiate with Republicans in the best faith possible to arrive at an acceptable plan. Any tax reform plan, for instance, should have as its primary goal to increase economic growth and the financial well-being of average Americans. By that measure, a bill that allowed, say, multinational corporations to repatriate trillions of dollars in overseas profits on easy terms and to use that wealth to engage in stock buybacks that enrich senior executives would not pass muster. Similarly, any infrastructure plan should aim to have maximum bang for the buck and to fund projects with broad public benefits but that private developers traditionally shun, like water treatment plants and light rail. By that standard, the plan Trump announced during his campaign and again in his election-night speech, which relies on massive, wasteful, and unnecessary tax giveaways to developers for projects they might well invest in anyway, would be dead on arrival as far as Democrats are concerned.

Though some Democratic partisans may dislike the notion of offering up any sort of terms of engagement, this proactive approach has a number of benefits. By laying out a set of progressive principles around which all members can rally, Democrats can preemptively solve the problem of party unity and minimize the risk of defection. They can also avoid the label of obstructionism while at the same time answering the question of what they “stand for.” Democrats could also create an opportunity to split the GOP. Free-market conservatives have long opposed “corporate welfare” and “crony capitalism,” labels that all too perfectly describe Trump’s current infrastructure plan and will likely apply to his tax reform proposal as well.

Finally, a proactive set of terms sets up a win-win endgame for Democrats: if Republicans somehow miraculously produce a plan that comports with progressive goals, Democrats can claim bragging rights to a genuine achievement. But if, as is more likely, GOP proposals end up as giveaways to multinational corporations and the wealthy, Democrats can retreat at a time and point of their choosing, thus either killing the bill or ensuring that it will be seen as the partisan sellout to the rich and powerful that it will, in fact, be.

As for issues worthy of full-on opposition, Democrats should pick their battles. A united front is a valuable resource to be husbanded wisely, not squandered on diversions and tangents, of which there will be plenty. The best issues for bringing a full-bore opposition strategy to bear are the ones, like Social Security, that benefit the entire coalition and don’t  just fire up the base. The most obvious upcoming issue that could rally the caucus is the threat of Medicare privatization, proposed by House Speaker Paul Ryan in his budget. Democrats are already salivating at the prospect of replaying the 2005 battle over Social Security, and Pelosi has already vowed Democratic opposition. Another possibility is the potential repeal of Dodd-Frank, which could also unify Democrats on the issue of Wall Street accountability.

At the same time that Democrats look for strategic openings to advance their own priorities, they shouldn’t bypass opportunities to weaponize Trump against himself. While the 2005 battle over Social Security was instrumental to the Democrats’ takeover of Congress the following year, so was the fact that Republicans hoisted themselves on their own petard with all-too-obvious displays of gross incompetence and corruption. Chief among these was the tragedy of Hurricane Katrina in August 2005, where Bush’s botched handling of the disaster led to months of unnecessary misery for thousands of Americans, most of them poor and African American. Bush’s designee to head the Federal Emergency Management Agency, Michael Brown, was a former commissioner at an Arabian horse association with zero experience in disaster management. It showed.

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Two thousand and five was also the year that House Majority Leader Tom DeLay resigned in disgrace after his indictment for allegedly making illegal contributions to Texas state elections in 2002 (he was later acquitted). And it was the year of Jack Abramoff, the Republican lobbyist who was indicted on federal corruption charges after collecting millions in fees from Indian tribes and whose antics helped the Washington Post win a Pulitzer Prize.

Democrats at that time did not sit passively by, hoping these follies would be obvious to the electorate. Rather, they seized every chance to remind voters of these failures with a focused, relentless messaging campaign that just about equaled the level of investment in the fight over Social Security. Remember the 2006 “Dubai ports” scandal? In 2006, Senator Chuck Schumer was tipped off to the fact that the Bush administration had quietly approved the sale of key American port facilities to a firm owned by the government of the United Arab Emirates, despite security concerns raised by the Coast Guard. Lacking subpoena power or any other tools of majority control, Schumer held press conference after press conference publicizing the deal. The ensuing coverage rattled a public still on edge from 9/11, and drew enough security-minded Republicans to his cause that legislation was passed blocking the deal, grievously injuring the president’s reputation.

This happened at a time when the American press was still wary of challenging Bush, whose approval ratings coming out of the 2004 campaign were respectable. That is not the case with Trump today. Trump enters office with far lower approval ratings than any other president-elect in the last quarter century. For all of its faulty coverage during the campaign—and perhaps out of guilt because of it—the mainstream media since the election has been aggressively reporting on everything from Trump’s continuing business interests while in the White House to the swirl of conflicts-of-interest allegations around many of his senior advisers and proposed Cabinet picks to his alarming refusal to sit down for daily intelligence briefings. Trump’s continuing attacks on the media will only stoke such coverage.

Of course, Trump has so far shown remarkable resilience in the face of scandals that would have sunk any other more conventional politician. The question is how long Republicans will continue to protect him, particularly the many who were cool to, or even opposed, his candidacy. Democrats only need a few GOP defectors to break the wall of Republican unity; this is what happened to Bush beginning in 2005. And a press corps already awakened to the exceptional dangers a Trump administration poses will feel even more emboldened to cover criticism of him that is bipartisan in nature.

The dread of Trump’s occupation of the White House—particularly in light of Hillary Clinton’s commanding popular vote win—will prompt many progressives to urge a permanent state of protest. But the worst mistake that Democrats could make in the upcoming Congress is to show their hand too soon, fall into reflexive opposition, and miss the strategic openings that are sure to appear.

Democrats, you have more power than you think. Use it wisely.

The post Minority Retort appeared first on Washington Monthly.

In March 2012, we compiled a list of what were, at the time, President Barack Obama’s greatest achievements, to accompany our cover story, “The Incomplete Greatness of Barack Obama.” Today, at the end of his second term, Obama’s legacy is far more complete. Indeed, items from the original list—such as increasing national service opportunities, creating the Race to the Top education reform program, and expanding stem cell research—fell off in order to make room for new ones.

But his legacy is also under threat. Donald Trump and the new Republican-dominated Congress have pledged to undo much of what the president has achieved, including repealing the Affordable Care Act and reversing important executive actions on immigration and climate change. So it is with this caveat that we offer the following updated list of Obama’s top accomplishments.

1. Passed Health Care Reform

After five presidents over the course of a century failed to create universal health insurance, signed the Affordable Care Act in 2010. More than twenty million Americans have gained coverage since the passage of the law, which provides subsidies for Americans to buy coverage, expands Medicaid eligibility, and prohibits insurers from denying coverage to people with preexisting conditions. The uninsured rate has dropped from 16 percent in 2010 to 9 percent in 2015. The law also mandates free preventive care, allows young people to stay on their parents’ policies up to age twenty-six, and imposes a ban on annual and lifetime caps on benefits.

2. Rescued the Economy

Signed the $787 billion American Recovery and Reinvestment Act in 2009 to spur economic growth amid the most severe downturn since the Great Depression. As of October 2016, the economy had added 15.5 million new jobs since early 2010 and set a record with seventy-three straight months of private-sector job growth. The unemployment rate, which hit a sustained peak of about 10 percent in 2009, has dropped to 4.6 percent as of November 2016.

3. Passed Wall Street Reform

Signed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010 to re-regulate the financial sector after its practices caused the Great Recession. The law tightens capital requirements on large banks and other financial institutions, allows the government to take them into receivership if they pose a threat to the economy, and limits their ability to trade with customers’ money for their own profit. Dodd-Frank also created the Consumer Financial Protection Bureau to crack down on abusive lending and financial services. By the end of fiscal year 2016, the CFPB had handled nearly one million consumer complaints and taken actions that resulted in $11.7 billion in relief for more than twenty-seven million consumers.

4. Negotiated a Deal to Block A Nuclear Iran

Led six nations in reaching an agreement with Iran that requires the country to end its nuclear weapons program and submit to a rigorous International Atomic Energy Agency inspections regime in exchange for lifting global sanctions. The deal—which resulted from first toughening sanctions against Iran—also blocked Iran’s pathways to building a bomb, slowing down the development time for a weapon from three months to one year if Iran were to break its commitments.

5. Secured U.S. Commitment to a Global Agreement on Climate Change

Provided key leadership to the United Nations Framework Convention on Climate Change, which produced the
2015 Paris Agreement, a commitment by 197 nations to reduce global carbon emissions and limit the global rise in temperatures to below 2 degrees Celsius.

6. Eliminated Osama bin Laden

In 2011, ordered the Special Forces raid of the secret compound in Abbottabad, Pakistan, in which the terrorist leader was killed and a trove of al-Qaeda documents was retained.

7. Ended U.S. Combat Missions in Iraq and Afghanistan

After an initial troop surge in Afghanistan, brought home 90 percent of the nearly 180,000 troops who were deployed in Iraq and Afghanistan when he took office, leaving only a small contingent of forces to assist the Iraqi and Afghani militaries against insurgents and the Taliban. The withdrawal from Iraq created the vacuum that ISIS has filled. But, recently, without redeploying ground troops, the U.S. has helped the Iraqi military in reversing ISIS’s gains.

8. Turned Around the U.S. Auto Industry

In 2009, injected $62 billion (on top of the $13.4 billion in loans from the George W. Bush administration) into ailing GM and Chrysler in return for equity stakes and agreements for massive restructuring. By December 2014, the car companies had repaid $70.4 billion of the funds, and the Center for Automotive Research estimated that 2.5 million jobs were saved.

9. Repealed “Don’t Ask, Don’t Tell’’

Ended the 1990s-era restriction and formalized a new policy allowing gays and lesbians to serve openly in the military for the first time.

10. Supported Federal Recognition of Same-Sex Marriages

Decided in 2011 that the federal government would no longer defend the Defense of Marriage Act, which restricted federal marriage recognition to opposite-sex couples. In June 2013, the U.S. Supreme Court struck down key portions of the law as unconstitutional, allowing married same-sex couples to finally receive federal protections like Social Security and veteran benefits.

11. Reversed Bush Torture Policies

Two days after taking office, signed an executive order banning the so-called “enhanced interrogation” techniques used by the CIA under President Bush and considered inhumane under the Geneva Conventions. Also released the secret Bush administration legal opinions supporting the use of these techniques.

12. Established Rules to Limit Carbon Emissions from Power Plants

Finalized a “Clean Power Plan” in 2015 through new EPA regulations, setting the first-ever carbon pollution standards for existing power plants. When fully implemented in 2030, the new rules will result in a 32 percent reduction in carbon emissions compared to 2005.

13. Normalized Relations with Cuba

In 2014, took steps to open diplomatic and commercial ties with Cuba, ending the failed Cold War policy of isolation. In March 2016, direct mail flights to Cuba resumed for the first time in fifty years. American tourists may also now freely visit the country.

14. Put Medicare on Sounder Financial Footing

Slowed the growth of health care spending through cost-saving measures enacted as part of the ACA, ensuring the solvency of Medicare’s principal trust fund through 2028.

15. Protected DREAMers from Deportation

Took executive action in June 2012 to protect undocumented young people brought to the U.S. as children
(so-called DREAMers) from deportation and allow them to apply for work permits.

16. Established Net Neutrality

Directed the Federal Communications Commission to issue a rule classifying internet service providers as a public utility and forcing them to treat all web traffic the same, regardless of source. After years of litigation, a federal court upheld the FCC’s rule, meaning providers can’t favor certain websites or block others.

17. Protected Two Liberal Seats on the U.S. Supreme Court

Nominated and obtained confirmation for Sonia Sotomayor (the first Hispanic person and third woman to serve on the Court) in 2009 and Elena Kagan (the fourth woman) in 2010. They replaced David Souter and John Paul Stevens, respectively.

18. Boosted Fuel Efficiency Standards

Released new fuel efficiency standards in 2011 that will increase fuel economy to the equivalent of 54.5 miles per gallon for cars and light-duty trucks by model year 2025.

19. Kicked Banks Out of Federal Student Loan Program, Expanded Pell Grant Funding

As part of the 2010 health care reform bill, signed a measure ending the decades-old practice of subsidizing banks to provide college loans. As a result, all students began getting their federal student loans directly from the federal government. More than half of the savings ($36 billion over ten years) is dedicated to expanding Pell Grants to lower-income students.

20. Improved America’s Image Abroad

With new policies, diplomacy, and rhetoric, reversed a sharp decline in world opinion toward the U.S. (and the corresponding loss of “soft power”) during the Bush years. Favorable opinion toward the United States rose during Obama’s first term in ten of fifteen countries surveyed by the Pew Global Attitudes Project, with an average increase of 26 percent, and have stayed high ever since.

21. Left His Mark on the Federal Judiciary

Appointed more than 300 judges to federal district and appeals courts, in line with other two-term presidents, tipping the balance to majority Democrat appointed. A majority of judges on nine of the thirteen appeals courts are now Democratic appointees—compared to just one when Obama took office. Appointed a record number of female (138) and minority (120) judges to the federal bench, as well as eleven openly gay or lesbian judges.

22. Diversified the Federal Bureaucracy

Appointed women and people of color to fill more than half of appointments to policy positions requiring Senate confirmation, including seventeen of thirty-one Cabinet positions.

23. Passed Fair Sentencing Act

Signed 2010 legislation that reduced the sentencing disparity between crack and powder cocaine possession from 100 to 1 to 18 to 1. Successfully lobbied the United States Sentencing Commission to apply those measures retroactively, which contributed to the largest decrease in the federal prison population in over thirty years.

24. Revived the Department of Justice’s Civil Rights Division

Through then Attorney General Eric Holder, announced a major overhaul of the DOJ’s Civil Rights Division in 2009 to bring back federal civil rights enforcement, which had atrophied under President Bush. Among other priorities, the division stepped up its efforts against housing and employment discrimination, strengthened enforcement of the Voting Rights Act, and put renewed focus on cracking down on discriminatory policing practices.

25. Expanded Wilderness and Watershed Protection

Signed the Omnibus Public Lands Management Act of 2009, which designates more than two million acres as wilderness, creates thousands of miles of recreational and historic trails, and protects over 1,000 miles of rivers. By designating new national monuments and other measures, permanently protects over 548 million acres, more than any other president.

26. Gave the FDA the Power to Regulate Tobacco

Signed the Family Smoking Prevention and Tobacco Control Act in 2009. Nine years in the making and long resisted by the tobacco industry, the law mandates that tobacco manufacturers disclose all ingredients, obtain FDA approval for new products, and expand the size and prominence of cigarette warning labels. It also bans the sale of “light” cigarettes and tobacco sponsorship of entertainment events.

27. Trimmed and Reoriented Missile Defense

Cut the Reagan-era “Star Wars” missile defense budget, saving $1.4 billion in 2010, and canceled plans to station antiballistic missile systems in Poland and the Czech Republic in favor of a sea-based defense plan focused on Iran and North Korea.

28. Kick-started Clean Energy Investment

As part of the 2009 stimulus, invested $90 billion in research on smart grids, energy-efficient electric cars, renewable electricity generation, cleaner coal, and biofuels. Launched a clean energy incubator within the Argonne National Laboratory and encouraged $4 billion in commitments by foundations, institutional investors, and other private-sector stakeholders to boost their investments in clean energy technology.

29. Reduced the Threat from Nuclear Weapons

Initiated the biannual Nuclear Security Summit to address the global threat posed by nuclear terrorism and advance a common approach to strengthening nuclear security. As a result, weapons-usable highly enriched uranium has been removed from sixteen countries. Signed and won ratification of a 2011 treaty with Russia to limit each country to 1,550 strategic warheads (down from 2,200) and 700 launchers (down from more than 1,400). The treaty also reestablished a monitory and transparency program that had lapsed in 2009.

30. Passed Credit Card Reforms

Signed the Credit Card Accountability Responsibility and Disclosure Act of 2009, which prohibits credit card companies from raising rates without advance notification, mandates a grace period on interest rate increases, and strictly limits overdraft and other fees.

31. Cut Veteran Homelessness by Half

In 2010, launched the nation’s first comprehensive strategy to prevent and end homelessness, Opening Doors, which has led to a 47 percent decline in the number of homeless veterans since 2010 and aims to end youth homelessness by 2020.

32. Enacted Government Surveillance Reform

Signed the 2015 USA Freedom Act, which bans the governmental collection of bulk data, creates a special panel to provide technical and legal advice to the court administering the Foreign Intelligence Surveillance Act (FISA), and provides greater transparency for FISA court opinions. The ACLU noted that the legislation marked the first time since 1978 that Congress has “taken steps to restrict, rather than expand, its government surveillance authority.”

33. Expanded Overtime Pay

Updated a provision of the Fair Labor Standards Act to ensure overtime pay for employees making up to $47,476 a year, thereby expanding overtime protections to 4.2 million workers. The new rules were set to go into effect in December 2016, but were blocked in November by a federal judge in Texas.

34. Cracked Down on Bad For-Profit Colleges

Through the Department of Education, issued “gainful employment” regulations in 2011, cutting off commercially focused schools from federal student aid funding if more than 25 percent of former students aren’t paying off their loans or if former students spend more than 12 percent of their average total earnings servicing student loans. In June 2016, regulators voted to shut down the nation’s largest accreditor of for-profit colleges, cutting off federal aid to hundreds of for-profits.

35. Cut the Deficit

Reduced the federal deficit from 9.8 percent of GDP in 2009 to 3.2 percent in 2016, one benefit of a strengthening economy.

36. Created the College Scorecard

Through the Department of Education, developed a comprehensive database in 2015 that allows prospective college students to compare potential schools based on costs, graduation rates, debt, and post-college earnings.

37. Improved School Nutrition

Signed the Healthy Hunger-Free Kids Act in 2010, championed by Michelle Obama, mandating a $4.5 billion spending boost and higher nutritional standards for school lunches. New rules double the amount of fruits and vegetables, and require only whole grains, in foods served to students.

38. Expanded the Definition of Hate Crimes

Signed the Hate Crimes Prevention Act in 2009, applying existing hate crime laws to crimes based on a victim’s sexual orientation, gender, or disability, in addition to race, religion, or national origin.

39. Recognized the Dangers of Carbon Dioxide

Through 2009 EPA regulations, declared carbon dioxide a pollutant, allowing the agency to regulate
its production.

40. Strengthened Women’s Right to Fair Pay

Signed the Lilly Ledbetter Fair Pay Act in 2009, giving women who are paid less than men for the same work the right to sue their employers after they find out about the discrimination, even if it happened years ago. Under previous law, as interpreted by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., the statute of limitations on such suits ran out 180 days after the alleged discrimination occurred, even if the victims never knew about it.

41. Secured the Removal of Chemical Weapons from Syria

Forced an agreement by Syrian leader Bashar Assad in 2013 to destroy the country’s stockpile of chemical weapons in accordance with the United Nations Chemical Weapons Convention. In 2016, the Organisation for the Prohibition of Chemical Weapons confirmed the destruction of thousands of tons of mustard gas and other toxic chemicals. (There is evidence, however, that Assad has recently continued to use chlorine gas against rebels and civilians in Aleppo.)

42. Protected LGBTQ Americans From Employment Discrimination

Signed an executive order in 2014 prohibiting federal contractors and subcontractors from discriminating against their workers on the basis of sexual orientation or gender identity.

43. Reduced Discrimination Against Former Prisoners in Federal Hiring

Signed an executive order to “ban the box” in federal hiring and contracting. Government employers can’t ask about criminal records at the beginning of the application process, giving applicants with a criminal history a fairer shot.

44. Won Major Victories Against Housing and Mortgage Discrimination

Through the Justice Department, reached a record $335 million settlement against Countrywide Financial Corporation and a $175 million settlement against Wells Fargo for their practices of charging higher interest and fees to African American and Latino borrowers prior to the financial crisis, in addition to numerous other suits pursued on behalf of borrowers. In 2015, the administration successfully argued before the Supreme Court that victims of housing discrimination suing for bias only need to show “disparate impact,” not an intent to discriminate, to win their case.

45. Expanded Broadband Coverage

Obtained approval from the FCC to shift $8 billion in subsidies away from landlines and toward broadband
internet access for lower-income rural families. By 2016, 98 percent of Americans had access to fast 4G/LTE broadband.

46. Expanded Health Coverage for Children

Signed the Children’s Health Insurance Program Reauthorization Act in 2009, expanding the Children’s Health Insurance Program (CHIP) to cover an additional four million children, paid for by a tax increase on tobacco products.

47. Improved Food Safety

Signed the 2011 FDA Food Safety Modernization Act, which increased the Food and Drug Administration’s budget by $1.4 billion and expanded its regulatory responsibilities to include increasing the number of food inspections, issuing direct food recalls, and reviewing the safety practices of countries exporting food products to the U.S.

48. Let the Space Shuttle Die and Killed the Planned Moon Mission

Allowed the expensive ($1 billion per launch), badly designed, and dangerous shuttle program to make its final launch on July 8, 2011. Cut off funding for the even more bloated and problem-plagued Bush-era Constellation program to build a moon base in favor of support for private-sector low-earth orbit ventures, research on new rocket technologies for long-distance manned flight missions, and unmanned space exploration, including the largest interplanetary rover ever launched, designed to investigate Mars’s potential to support life.

49. Rebuilt and Fortified the Gulf Coast post-Katrina

Completed a $14.5 billion system in 2011 to rebuild the levees in New Orleans and protect it from a 100-year storm.

50. Avoided Scandal

Became the first president since Dwight Eisenhower to serve two terms with no serious personal or political scandal.

[Ryan Cooper and Siyu Hu contributed to the 2012 version of this article.]

The post Obama’s Top 50 Accomplishments, Revisited appeared first on Washington Monthly.

With the approval of Proposition 64, which legalized the sale of marijuana for recreational use, California voters on November 8 created the world’s largest market for legal pot. Massachusetts also voted to legalize, giving marijuana entrepreneurs the green light to open stores that could serve customers from up and down the I-95 corridor. So did Maine and Nevada. While Colorado, Washington, Oregon, and Alaska had already legalized large-scale commercial production, marketing, and distribution, these latest votes will accelerate the scramble among other states to follow suit.

Part of what’s at stake is the tax revenues being generated by the burgeoning marijuana industry. In California, the state’s Legislative Analyst’s Office expects taxes on the drug to bring in on the order of $1 billion annually. But marijuana’s extreme portability—a year’s supply for a heavy user weighs less than a single bottle of beer—means that one state’s prohibition can easily be undermined by legalization in neighboring states. Unless the federal government intervenes, it won’t be long, perhaps less than a decade, before marijuana is legal in most states.

The problem with the state-by-state legislation process is that we are drifting into the worst possible form of legalization, one that imagines for-profit corporations to be effective guardians of public health. The danger in entrusting supply to for-profit businesses, as every state with legal marijuana (but not the District of Columbia) has done, is that most of their profits will come from exploiting a small number of problem users. Already, 80 percent of sales are to daily and near-daily users; half of all sales are to people with substance use disorder, or SUD, the clinical term for a range of problems arising from heavy drug and alcohol use. Occasional users, who make up a majority of pot customers, account for only a modest share of sales, but may provide political cover for an industry that gets rich supplying people who struggle with self-control. The damage to public health will be substantial.

The federal government can put a stop to this ill-advised trajectory. That’s because all of the industry’s activities, even if legal under state law, are prohibited by the federal Controlled Substances Act (CSA). Federal agents could arrest the owners of these businesses at will if President-elect Trump were to reverse President Obama’s policy of not enforcing the CSA against state-legal marijuana enterprises.

A premise of that policy, which was announced in the Department of Justice’s 2013 “Cole Memo,” was that states should be “laboratories of democracy,” free to innovate and experiment until the best policies emerge. But that theory is a poor fit for marijuana regulation, because America is one interconnected national market, not fifty islands with impermeable borders. (Alaska and Hawaii excepted.) And with their shared reliance on a for-profit
model, the states don’t appear interested in real innovation. As we’ll see, there are other, superior approaches that states are not pursuing.

It’s hard to know what position the new administration will take toward marijuana. Trump’s nominee for attorney general, Alabama Senator Jeff Sessions, has called consistently for enforcing prohibition. But Trump himself said repeatedly during the campaign that legalization should be decided at the state level. The ideal solution may be somewhere in between.

It would be unfair to let investors pour billions of dollars into developing new products, securing celebrity endorsements, building internationally recognized brand names, and paying for product placement in movies and television shows—only to then say, “We changed our mind. We don’t want for-profit businesses promoting consumption after all.” That’s why the Trump administration should act immediately to rein in the most pernicious consequences of for-profit legalization before the growing power of the for-profit industry takes other options off the table.

A commercially driven marijuana market would create public health challenges for the same reason that some users may welcome it: radically lower prices. Companies will be happy to promote ubiquitous, cheap marijuana to all types of consumers, and studies show that when prices fall, both use and abuse rise.

Before policy began to liberalize, high-quality domestically produced cannabis—the proper name for the marijuana plant—sold at wholesale for around $6,000 per pound. By November 2016, the Cannabis Benchmarks Spot Price Index, a commodities index for the American market, had fallen to $1,400 per pound. Aphria, a Canadian producer, reports production costs of $400 to $700 per pound in U.S. dollars at current exchange rates.

Prices could fall much lower as modern industrial agricultural practices fully displace artisanal cultivation. Unlike exotic mushrooms or finicky citrus trees, cannabis is a pretty ordinary crop—harder to grow than dandelions, but not as tricky as orchids. Aphria now produces sixty grams per square foot in its greenhouses. If production costs fell to those of tomatoes grown in greenhouses—roughly $4 per square foot—that would be only $30 per pound. Outdoor production costs could be even lower.

That is spectacularly cheap. If a half-gram joint produces a two-and-a-half-hour high, then a pound could fuel 2,250 hours. At $30 per pound, that translates into about a penny per hour of being high. (Of course, lower prices will lead some users to use much more at a time, which doesn’t translate into a proportionally longer high, so this ratio could go up a bit. But it would still be pennies per hour.)

Processing will add only modestly to cultivation costs. Tobacco is in many ways a similar kind of crop, and receiving, grading, stemming, and drying tobacco costs less than $1 per pound. Labor-intensive steps could be offshored to countries with lower wages, letting the domestic industry focus on concentrates (e.g., vaping, edibles, and dabs), whose production is easy to automate. It is unclear how much the extraction of cannabinoids, the psychoactive ingredients in cannabis, would cost when done at scale, but it may be analogous to decaffeinating coffee beans, which only costs a few dollars per pound.

Even if processing pushed costs up from $30 per pound for cultivation alone to $45 per pound all-in, that is still just ten cents a gram before taxes, compared to current retail prices of $10 to $15 per gram.

No doubt stores will always sell high-priced, hand-cultivated, organic marijuana to rich and discerning customers, just as they sell bottled water and fancy chocolates. But if a company can produce marijuana for $45 a pound, it would make a terrific profit letting Amazon deliver $10 ounces to users’ doorsteps. Grocery stores survive on much thinner margins, and convenience stores could sell at a loss to increase foot traffic for junk food. Restaurants buying in bulk might pay no more per joint than they now pay for mints, creamers, and other customer freebies. If joints increased customers’ appetites, they might be comped like salty nuts at a bar.

Rock-bottom prices are a boon for most consumers, but not for those struggling with self-control. Imagine a friend whose difficulty saying no to dessert leaves him unhappily overweight. Now imagine that the production costs of sugar, butter, and chocolate plummeted, so your friend could order unlimited dessert for fifty cents a day. Would your friend be better off?

From the point of view of doctrinaire market economists, yes. They would note that your friend could eat exactly as before, but save money. Yet many of us have said yes to a free dessert that we wouldn’t have ordered, or to a cookie from a passed plate that we wouldn’t have bought, then stood regretfully on the bathroom scale the next morning. Sometimes high prices protect us from over-indulging.

Most people who use marijuana use very little, and do so happily, but the smaller number of high-frequency users dominate consumption. The National Survey on Drug Use and Health and other data show that fully one-third of past-year users are adults who use fewer than ten times per month, yet they account for just 2 percent of consumption. Twenty-five times as much is used by people who have SUD, a history of treatment, or both (46 percent of the total), categories of use that most people would prefer not to encourage via lower prices. Some daily users just smoke a little each evening. That’s not a problem, but a little more than half of all the marijuana is consumed by people who spend more than half of their waking hours under its influence.

There are other public health risks as well. Marijuana smoke contains carcinogens. Marijuana-infused edibles and beverages are more prone to over-consumption, especially the candies and sodas that appeal to youngsters. Many vaping pens are shoddily made, exposing users to heavy metals, and the unregulated production of hash oils often leaves behind nasty solvents. There’s also an open question about the impact of marijuana use on the use of other substances. The current evidence is split right down the middle for the indirect effects of marijuana on alcohol. For tobacco, it suggests complementarity: past changes that increased marijuana use also triggered greater use of tobacco. There are a few peer-reviewed articles suggesting that increasing the availability of medical marijuana reduces problems with opioids, but this debate is far from settled.

Some hope that legalization would attract enough new controlled users to reverse that pattern, but the math doesn’t add up. Suppose every one of the 200 million American adults who do not currently use marijuana joined the “fewer than ten times per month” category. That market segment would swell to 90 percent of all users, but it would still account for less than one-third of consumption even if there were no increase in problem use. And low prices would almost certainly increase use by those already suffering from SUD and would tip others into that group. Indeed, the evidence suggests that younger and more frequent users are more price sensitive than occasional users, not less.

Since no nation has ever legalized a commercial marijuana industry, there is enormous uncertainty about how it will play out. But the best guess is that a competitive industry could deliver marijuana at shockingly low prices, and approximately half of the resulting increased use would be by people already struggling with SUD.

In theory, taxes might be used to prop up prices. A tax of $5 per gram, for example, could keep prices from falling by much more than another 50 percent.

No individual state, however, could collect such a tax. Five dollars per gram adds up to more than $2,000 a pound. Imposing that on producers would just send them—and the jobs they provide—scurrying to more industry-friendly states in a classic race to the bottom. At sixty grams per square foot, the roughly 6,000 metric tons of marijuana consumed annually in the United States could be grown on about 2,300 acres of plants. Compare that to the eighty-three million acres of soybeans planted by American farmers this year. You could fit the entire marijuana industry in Rhode Island with plenty of room to spare.

A retail sales tax is no more practical because smugglers would arbitrage price differentials with lower-tax states. Interstate variation in cigarette taxes already generates considerable smuggling even though the highest tax (in New York State) is only $4.35 per pack. A pack of cigarettes weighs twenty grams, so taxing marijuana at $5 per gram would be like trying to collect a tax of $100 per pack of cigarettes.

The federal government could impose uniform taxes, but its track record with using “sin taxes” to protect public health is abysmal. The federal cigarette tax is only $1.01 per pack, well below the state average, and most federal alcohol excise taxes remained unchanged from 1951 to 1991, a period during which inflation eroded their real value by 80 percent. (They were finally increased, but are still only about a nickel on a can of beer.)

To keep marijuana prices reasonably stable, taxes would have to increase sharply over time as production costs fall. The federal government typically does not have the backbone to tax popular industries. Nor is it nimble at adjusting rates in response to changing circumstances. Ideally, Congress would delegate the setting of tax rates to an independent commission staffed by public health experts. However, the Constitution’s Origination Clause could be a complication, since it requires all tax bills to start in the House of Representatives. At any rate, Congress may be loath to give up such powers. (The power to not impose high taxes is the power to receive generous campaign donations.)

Thinking carefully about how to best tax marijuana merits its own full analysis, but the bottom line is clear. Getting taxes right is hard, and it is probably wrong to expect the government to successfully tax its way out of a flood of cheap marijuana.

The solution to this dilemma is straightforward: keep for-profit industry out of the market. There are better ways to legalize; the key is choosing wisely who gets to produce and sell. No amount of regulatory Band-Aids can make up for picking the wrong market structure.

The most cautious approach would be to legalize only possession, use, home-growing, and gifting of limited quantities—but not sales. Extending this to small groups has been called a co-op or “cannabis club” model, variations of which exist in Spain, Belgium, and Uruguay. The idea is that a limited number of people (say, thirty) can pool their home-growing privileges so that those with green thumbs can grow for others, but with no distribution outside of the group. This would allow people to enjoy pot legally without enabling industrial-scale production. The disadvantage is that it would only displace most, not all, of the black market, and it would generate little or no government revenue.

Another option would allow the sale of marijuana only by small nonprofit organizations. This would allow artisanal, but not industrial-scale, production and marketing. The best version would require the organizations’ charters to define their mission as meeting existing demand, to undercut the black market, without promoting new demand. Boards should be required to include people from the public health and child welfare communities to reduce the risk that they morph into quasi-corporations the way some nonprofit hospital chains have.

A third option would allow private-sector growing and retailing but interpose a government monopoly on distribution. If growers could only sell to that government monopoly, and retailers could only buy from it, then the government could set prices, control quality, and even establish packaging requirements. For example, if the government refused to buy products that were not in plain-paper packaging, there would be no incentive for producers to create or market brands that would promote consumption or appeal to children.

There are further options, each with its own pros and cons, but all of them would be better than creating a commercial, for-profit industry.

Congress will eventually need to codify a national policy into law. But absent some federal intervention by the time it gets around to doing so, for-profit industry will already be the facts on the ground. That means the only chance to avoid opening the door to the eventual rise of Big Marijuana is for the Trump administration to use its existing legal authority to freeze development of the commercial model in its tracks. Luckily, that would be easy: while the Obama administration chose not to exercise this authority, President Trump could unilaterally decide that co-ops are okay but for-profits are not, and direct federal law enforcement to shut down any new licensees that operate as for-profit businesses, and any current licensees that expand their sales.

Corralling businesses that are openly violating federal law is simple, even though eradicating the black market is not. For the price of a stamp, a U.S. attorney could simply notify any licensed marijuana business that the Controlled Substances Act empowers the government to seize its property and assets unless they cease operation. The George W. Bush administration used this tactic against medical dispensaries that were suspected of diverting to the black market. More recently, Washington State used its analogous in-state authority to shut down 100 of its dispensaries to complete the transition to its new, regulated, state-legal regime.

It’s always troubling when the president, whether Democrat or Republican, essentially legislates by refusing to enforce a constitutional law. But in the case of pot, the train is out of the station—strictly enforcing the federal marijuana ban in states that have legalized could trigger a backlash. Given the realities of growing state-level legalization and congressional inertia, President Trump should do what’s necessary to create the best chance of getting sensible nationwide policy when Congress finally gets around to passing federal legislation.

The goal is not to punish but merely to deter for-profit expansion. A state-legal enterprise that sold no more in 2017 than it sold in 2016 would be left alone; one that sold more would be shut down. When and if Congress reached a firm decision against allowing commercial enterprises, then existing for-profits could be given some reasonable amount of time to liquidate or convert into nonprofits.

Trump could also use the CSA to close loopholes in state laws and set national standards for minimally acceptable behavior. I would recommend shutting down stores that sell marijuana-infused candies whose names and packaging mimic conventional candies (“Pot Tarts,” “Kif Kats,” “Hasheys” chocolate, and so on); these products create an intolerable risk of overdose for children who are too young to read. I would also ban products that mix marijuana with tobacco, nicotine, or alcohol. While users outside North America often roll tobacco into their marijuana joints, letting Big Tobacco spice up tobacco cigarettes with marijuana or letting marijuana companies make their products more addictive by adding nicotine seem like very bad ideas.

National marijuana legalization is coming. If we leave it to the states, it’s going to happen in the worst way possible. With spin from advocates and industry lobbyists, this complex policy topic has been oversimplified into a simple yes-or-no question. Hiding the nuances helps industry, because the default alternative to prohibition is to “regulate like alcohol,” which means allowing for-profit corporations, national brands, marketing, and all the ensuing problems. That approach will mint millionaires, but it will also harm millions of Americans who suffer from substance use disorder.

Marijuana may not be as dangerous as alcohol, but it’s not an ordinary commodity, either; its consumption is dominated by daily and near-daily users, many of whom are suffering from SUD. They need to be protected from corporations seeking to get rich by exploiting their compromised self-control.

It might be difficult to imagine that the Trump administration would make marijuana regulation a priority, but the “law and order” inclination of some of his inner circle—including his nominee for attorney general—could persuade him to take action to limit the widespread availability of marijuana. If he does choose to act, Trump’s window of opportunity to make legalization happen in a better way will be brief. He needs to seize it.

The post Nip It in the Bud appeared first on Washington Monthly.

This is a sneak preview of the upcoming January/February 2017 issue of the Washington Monthly.

Could it happen here? Could a democratically elected leader come to rule us as an autocrat? Citizens of a free society can never lose sight of this question, and—however complacent many of us have become—the election of Donald Trump has shoved it back out to center stage.

“A dependence on the people is, no doubt, the primary control on the government,” James Madison observed in The Federalist Papers, “but experience has taught mankind the necessity of auxiliary precautions.” These precautions are the separation of powers and checks and balances, enshrined in the Constitution. Citizens concerned about tyranny from the leaders they have elected must depend on the other branches of government to defend the republic.

In particular, the public must rely on Congress, the branch of government that Madison felt “necessarily predominates,” given its proximity to the people. Moreover, Article I of the Constitution vests in Congress “all legislative Powers herein granted,” as well as ample implied powers of oversight, and the power of impeachment should that become necessary. If a strongman government ever takes root in America, it will not be simply because we elected a president determined to establish it, but because Congress acquiesced in his designs.

But if you ask Americans whether they think Congress will perform its duties responsibly, expect incredulity or laughter in response. Quite simply, the public has lost faith in the institution. A recent Gallup survey found that just 9 percent of Americans said they had a “great deal” or “quite a lot” of confidence in Congress, compared to 73 percent who said the same about the military and 36 percent who felt that way about the presidency and the Supreme Court.

We can’t blame the American people for their disdain. Recent years have seen unprecedented levels of polarization, hyper-partisanship, and gridlock on Capitol Hill. Three years ago, Republicans in Congress went so far as to shut down the federal government for two weeks in a vain effort to repeal the Affordable Care Act, which prompted President Obama’s exasperated response: “[T]his is the United States of America, we’re not some banana republic!”

Alas, this is no longer so obvious, which makes the contemporary nadir of Congress all the more problematic. The next four years will be an extreme test of our constitutional system. Will it survive? Let’s use Madison’s framework to assess its prospects: “The great security against a gradual concentration of the several powers in the same department,” he wrote in The Federalist Papers, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”

We know that congressional Democrats will have these personal motives. House Minority Leader Nancy Pelosi and her caucus, as well as incoming Senate Minority Leader Chuck Schumer and his colleagues, will be quick to oppose the policies they find objectionable and any constitutional perversions Trump might foment.

But will GOP lawmakers also have the motivation and—more importantly—the guts to stand up to a president of their own party? And, if so, will they have the “constitutional means” to do it effectively? Or is Congress itself currently too weak and dysfunctional to check an out-of-control executive? (Spoiler alert: it is.) Hence we must also ask whether Republicans are willing to reform and bolster the institution they lead to enable Congress to carry out its constitutional responsibilities.

This is a daunting set of questions to contemplate, especially for liberals skeptical of anything constructive happening on Capitol Hill. But there are signs that the Republican-controlled Congress could have the inclination and wherewithal to play its part in Madison’s system—look no further than recent calls by leading GOP lawmakers for an investigation of Russian involvement in the election—and to rebuild itself as an institution worthy of public confidence.

Consider the many ways in which the substantial ambitions of GOP legislators could bring them into conflict with the Trump administration. While Republicans may find some common ground on issues such as tax reform and opposition to Obamacare, Trump’s priorities on other issues—such as trade, entitlements, infrastructure investment, and government spending in general—run counter to those espoused by many congressional Republicans, including House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

Second, Trump and many of his advisers, like Steve Bannon and Kellyanne Conway, disrespect and dislike the GOP legislators and the institution they inhabit, seeing it as an independent center of political power that they do not yet control. Before Bannon came aboard Trump’s campaign, he was determined to use his platform at Breitbart News to drive Ryan from the speaker’s chair because of the latter’s free-trading globalism and Washington insider status. It’s no accident that Trump has become a devotee of congressional term limits. Trump executed a hostile takeover of the presidential wing of the GOP and now wants to bring the congressional wing to heel.

It’s a safe bet that the loathing is mutual. While Ryan’s eventual and lukewarm endorsement of Trump struck many critics as feckless, it is hard to imagine him taking any other course and retaining the speaker’s chair. And time and again throughout the campaign, Ryan sharply criticized Trump’s statements and actions as inconsistent with GOP and conservative principles—even after giving Trump his endorsement.

Ryan wasn’t the only House Republican who was profoundly ambivalent about Trump. A cheat sheet by David Graham at the Atlantic found that at least twenty-five members of Ryan’s majority—more than 10 percent—declared on the record that they would not vote for their party’s standard-bearer. This is a highly unusual development in an age of intense party unity—and not a harbinger of a majority that will serve as a presidential rubber stamp.

Though less apt to withhold their votes, the true believers in the House Freedom Caucus are another potential thorn in Trump’s side. Prominent members of this group have already challenged expectations that they will be passive passengers on the Trump train. “November 8th wasn’t the election of a monarch,” Kentucky Representative Thomas Massie observed. “It was the election of the head of a third of our government as envisioned by the Founding Fathers.” For his part, Michigan Representative Justin Amash has been upbraiding the president-elect on Twitter for his threats to curtail civil liberties and intervene in free markets. When Trump boasted about his negotiations with Carrier, Amash tweeted, “Not the president(-elect)’s job. We live in a constitutional republic, not an autocracy. Business-specific meddling should not be normalized.”

Over in the Senate, where the GOP holds a mere two-seat majority, and where individual legislators wield considerable power, there is even more reason to expect that Republican lawmakers will frustrate Trump. In a post–election day press conference, McConnell fired shots across the president-elect’s bow, reaffirming the U.S. commitment to NATO and pointedly stating that term limits would not be on the Senate’s agenda. “We have term limits now,” the Kentuckian quipped to the assembled reporters. “They are called elections.”

Other senators could also set Trump’s wispy orange hair on fire. Ten Republicans in the next Senate—20 percent of the GOP majority—publicly affirmed that they would not vote for Trump, including stalwart Never Trump Senators Ben Sasse (Nebraska), Jeff Flake (Arizona), Lindsay Graham (South Carolina), and Mike Lee (Utah). Maine Senator Susan Collins disavowed Trump in August. After the release of the Access Hollywood tape in October, Alaskan Senators Lisa Murkowski and Dan Sullivan condemned Trump’s actions and said they would not vote for him, as did John McCain, Colorado’s Cory Gardner, and Rob Portman of Ohio. With the Republicans’ narrow majority, a few defectors could thwart passage of a bill or a confirmation of a weak appointee.

But can’t we expect these lawmakers, like so many others who talked a good game, to wind up caving to Trump and his followers when the going gets tough? Perhaps. But a few things to note. Many vocal Trump critics, including McCain, Murkowski, Portman, and Lee, along with Senators Marco Rubio of Florida and Rand Paul of Kentucky, just won reelection. All of these members now have six years of relative electoral freedom to challenge Trump without facing the electoral consequences. Members of the House Freedom Caucus already show no reticence to do so. If we see scandals arise from the commingling of the public’s business with Trump’s enterprises, or a foreign policy disaster, expect other House Republicans to jump ship rather than face the electoral consequences. GOP Trump critics will also likely enjoy the behind-the-scenes support of the large swath of the donor and corporate class horrified by the potential chaos of a Trump presidency. The fact that Trump enters office as the least popular president-elect in modern history will lower the bar for Republican defiance—presuming his ratings stay low.

So GOP lawmakers may indeed have both the “personal motives” and the will to check and balance Trump. But will they and the Congress they control have the “constitutional means” to do so—meaning, the capacity to effectively exercise the powers granted to them? In theory, yes. In practice, Congress has undermined its own capacity to use them.

One of Congress’s more self-destructive changes has been the shift in power from the committee system to the party system. It is congressional party leaders and their inner circles that drive the institution, not committee chairs and members. This shift was originally prompted in the 1970s by liberal Democrats seeking to subordinate the power of their conservative southern colleagues, who held a preponderance of committee chairs in the Democratic Congresses of that period due to the seniority system. Former House Speaker Newt Gingrich doubled down on this approach when he took over in the 1990s, bypassing seniority in selecting chairs, imposing internal term limits on them, and centralizing power in the leadership. This will make it harder for institutionalists in Congress to check the Trump administration.

Another change familiar to readers of this magazine was the “big lobotomy” that the Gingrich Congress self-administered by reducing professional staff on committees by one-third and squeezing the budgets of the Congressional Research Service and the Government Accountability Office. Undertaken to reduce the size of government, this penny-wise but pound-foolish move has also made it harder for Congress to marshal the expertise it needs to develop legislation and check the executive branch.

This decrease in expertise, plus the increase in partisanship, has led the amount of oversight Congress undertakes to plummet. Oversight has also diminished thanks to a breakdown in “regular order”—where the once-normal processes of recurring authorizations and annual spending bills informed by oversight as a matter of course have been replaced by lapsed authorizations and giant omnibus measures and continuing resolutions that give lawmakers little opportunity or incentive to scrutinize government operations. What oversight that does exist tends to consist of “fire alarm” hearings after catastrophes have occurred, or political theater (think Benghazi) staged to harass or embarrass the other party, rather than “police patrols” done on an ongoing bipartisan basis to monitor and improve public policy.

But is it even conceivable that Republicans would push through reforms that would weaken their own leaders’ powers in favor of committees and buttress congressional capacity by hiring more investigative and other staff? Actually, yes. In fact, momentum has been building toward these outcomes for a while. Paradoxically, members of the House Freedom Caucus, often seen as poster children for congressional dysfunction, are at the forefront of this movement. Representatives Massie, Amash, and South Carolina’s Mark Meadows, charter members of the Freedom Caucus, have been outspoken in calling for the decentralization of power and more committee-based policymaking that gives rank-and-file members opportunities to legislate and conduct oversight. A bicameral network of GOP legislators led by Senator Mike Lee and Texas Representative Jeb Hensarling has also pushed similar ideas in its Article I Project. The animating vision of this plan and the legislative reform proposals coming out of it is to ensure that Congress lives up to its constitutional responsibilities and becomes “the driving force in federal policymaking.”

These concerns have, moreover, become one of the five core planks of Speaker Ryan’s caucus-wide “Better Way” agenda. In 2016, a task force led by several House GOP chairmen developed a set of recommendations on the Constitution. Their report is striking for its insistence that the time has come for Congress to return to the institutional elements of a decentralized Congress that is fully exercising its Article I powers: passing legislation that authorizes (or reauthorizes) all federal programs and agencies before they are funded; enacting annual appropriations bills in a timely way; fully and jealously exercising its law-making power instead of making broad delegations to executive branch rule makers; and conducting systematic oversight that holds agency heads accountable.

GOP legislators are not the only ones who want to revisit and bolster Congress’s ability to carry out its responsibilities. Many of their counterparts across the aisle would also like more room to maneuver than the current partisan trench warfare gives them. For example, a bipartisan group of thirty-nine House members recently cosponsored a concurrent resolution to establish a Joint Select Committee on the Organization of Congress, which would be charged with developing a comprehensive agenda for institutional reform—just like an earlier joint committee did in setting the stage for the Legislative Reorganization Act of 1946. This act reasserted congressional authority over an executive branch that had gained too much power and autonomy under FDR’s leadership during the New Deal and World War II.

And late last year, a bipartisan group of legislators proposed to Speaker Ryan that Congress reinstate funding for the Office of Technology Assessment—which was zeroed out during the Republican Revolution—“to once again give legislators access to the nonpartisan technical expertise we need to make prudent policy decisions.” Doing so would be a discrete yet symbolic and important first step toward reestablishing the in-house staffing and expertise that Congress must have to stand up to an overweening executive.

Fully undoing the “big lobotomy” is going to cost money, and if Republicans are serious about their Article I efforts, they will need to appropriate it. New America’s Lee Drutman has pointed out that Congress currently spends about $2 billion annually on its operations, which may seem like a big number but is an exceedingly small fraction of the $4 trillion federal budget. It means that out of every $1,000 the federal government spends, fifty cents goes to the legislative institution responsible for setting priorities, making trade-offs, and overseeing how the remaining $999.50 is spent. You don’t need a green eyeshade to see that investing more in this capacity would pay dividends.

One final note on the ultimate congressional power: impeachment. Given the rarity of it being used against the president, it has not featured prominently in congressional discussions about shoring up checks and balances. But Congress has used this power approximately every other decade since the 1970s. As with the story told by the musical that bears his name, Alexander Hamilton’s description in The Federalist Papers of when impeachment proceedings are warranted seems at once rooted in a past world and yet highly relevant today: “The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done immediately to society itself” (Hamilton’s emphasis).

Impeachment is an extraordinary power, to be sure, but we live in extraordinary times. Given Trump’s penchant for controversy and confrontation, the obvious risks of corruption posed by his business interests, and the multiple and substantive policy differences he has with GOP elites, it may be unlikely but is not inconceivable that, should the “misconduct of public men” become insufferable in their eyes, Republicans in Congress will dust off and wield this extraordinary power against him.

Will the GOP follow through on its plans to strengthen Congress now that a Republican is in the White House? Skeptics might take note of a post-election keynote speech that Senator Sasse gave to several hundred members of the Federalist Society, the influential association of conservative and libertarian lawyers. Sasse drew a rousing round of applause with this peroration: “When people stand up against power and they disagreed with that power, no one’s surprised. They all expected that. What’s glorious is when people believe in limited government and restraint, when we are the ones in power. And we now have the opportunity to model that restraint.”

Americans concerned about the president-elect subverting our democracy should follow and encourage the efforts of lawmakers in both parties to restore and fully exercise the powers granted to them by our Constitution. And we should especially hold congressional Republicans’ feet to the fire if there is any hypocritical backsliding now that there is a Republican in the White House. Rather than dismissing the Constitution’s “auxiliary precautions” as illusory in a polarized age, we need to appreciate them as the best tool at hand in the years ahead—and support the legislators who are determined to use them accordingly.

The post Why the GOP Congress Will Stop Trump from Going Too Far appeared first on Washington Monthly.

The row house on Cecil Avenue was just like any other in the rough-and-tumble East Baltimore neighborhood where Rafiq Shaw lives. But one chilly day in December 2015, he had the bad luck to be walking by right as the police were getting ready for a raid.

“All out of the blue a bunch of police cars pulled up and grabbed me,” Shaw told me in September. “They threw me to the wall and put cuffs on me.” The officers insisted he had come out of the house, which Shaw just as vehemently denied. “They thought I was someone else,” he said. “That’s what they thought the whole time. They called a name out that wasn’t me.”

Shaw is a tall, heavyset thirty-one-year-old black man with a booming voice and an easy smile. He told his story almost cheerfully, emphasizing the absurdity of the harrowing situation he was describing.

Over his protests, Shaw continued, the police dragged him into the house, where a woman inside told the officers she had no idea who he was. The officers pushed him onto a couch and went through his pockets, finding the keys to his mother’s car, parked nearby.

Later, at his trial, in August 2016, officers would testify that Shaw consented to a search of the car. (Shaw told me he didn’t.) They also claimed to smell marijuana, although the doors were shut and the windows were up. Shaw’s attorney, Maryland public defender Angela Oetting, said that’s a claim Baltimore cops often use to justify searches of her clients.

The police did not, in fact, find marijuana in the car. But they did claim to find a gun, stashed in the glove compartment. It was a discovery that stunned Shaw, who said he has never owned a gun. “And this was my mom’s car,” he added. He was arrested and charged with two offenses: illegal possession of a handgun and possession of a handgun in a vehicle on a public road, punishable by up to three years in prison.

Police had no evidence, such as fingerprints, to prove the gun was Shaw’s. He didn’t even have a key to the glove compartment; the cops had to smash it open. After less than a half an hour of deliberation, the jury found Shaw innocent on both counts.

But Shaw is still paying for the crime he never committed. He’s on the hook for the $10,000 his family agreed to pay the bail bondsman who got him out of jail two days after his arrest. In Maryland, as in the many other jurisdictions that rely on private bondsmen and a money bail system, bail arrangements are private contracts, unrelated to court outcomes. Innocent, guilty, or charges dropped—as often is the case—the bondsman still collects his fee. “It’s crazy,” Shaw said. But it’s the inevitable result of a privatized pretrial system dependent on a commercial bail bond industry.

The stated purpose of cash bail is to ensure that defendants show up in court and that dangerous people stay off the streets. By requiring some amount of money up-front and threatening further cash penalties, defendants are motivated to comply. Or so the theory goes. But it’s increasingly clear that cash bail doesn’t accomplish these goals either fairly or efficiently, and that alternatives that don’t require defendants to pay for their release are actually more effective. In the large swaths of the country that still rely on cash bail, it’s all too often the poor—not the dangerous or delinquent—who remain behind bars when they can’t afford to purchase their freedom. Those who do pay bail, like Shaw, often find themselves in another kind of prison: shackled for months or years to a debt that hobbles their opportunities to get ahead. And it’s the government, prodded along by a powerful bail lobby, that enables the industry’s privileged position by providing a steady stream of clients, by protecting the industry’s right to collect, and by unthinkingly setting bail amounts that leave defendants little choice but to finance their freedom with a bondsman.

In Shaw’s case, the district court commissioner who handled his arraignment set bail at $100,000. His fiancée and his mother scraped together what they had, and Shaw cleaned out his meager savings. They gave it all to their bail bondsman, who agreed to bail Shaw out—to be his “surety”—for a fee of 10 percent, or $10,000. Shaw and his family said they paid the bondsman about $2,000 up front, with a promise to pay $100 a week until the amount was paid in full. Shaw earns $10.15 an hour installing trailer hitches for U-Haul. “I’ll be paying for a long time,” he told me. “Like forever.”

Baltimore Discount Bonds operates out of a storefront right next to the Baltimore Central Booking and Intake Center, on Eager Street downtown. It’s one of more than 200 bail bondsmen advertising in the city’s yellow pages and online.

One reason Baltimore’s for-profit bail bond industry is thriving is the sheer number of arrests every day. From January 1 to September 30, 2016, Baltimore police made 19,905 arrests, including 2,136 in September alone—an average of seventy a day. Most of those arrested were young black men.

Nor is Baltimore an outlier in the zealousness—or overzealousness—of its police force. Thanks in part to “zero tolerance” policies and other crackdowns across the country, police made about 10.8 million arrests in 2015, according to the Federal Bureau of Investigation’s Uniform Crime Reporting Statistics. Only a fraction of these arrests result in prosecutions, let alone in trials or convictions. Some of this has to do with the lack of capacity on the part of prosecutors to keep up with the flood of arrests. But in Baltimore, at least, many arrests are simply unwarranted to begin with. According to a 2016 investigation of the Baltimore Police Department by the U.S. Department of Justice, local prosecutors threw out more than 11,000 charges between 2010 and 2015 “because they lacked probable cause or otherwise did not merit prosecution.” The Justice Department concluded that Baltimore police habitually engaged in unconstitutional stops, searches, and arrests, often disproportionately targeted at minorities. Justified or not, these arrests are a principal source of traffic at the Baltimore city jail.

Adding to the scrum at central booking is another peculiarity of Maryland law: the ability of any citizen to file a complaint with a district court commissioner if police or prosecutors don’t investigate. According to a report by the state of Maryland, more than four in ten of the warrants issued by district court commissioners in 2012 were based on citizen complaints, which require no investigation beyond a sworn statement by the complainant.

All of these arrests are a great source of business for Baltimore’s bail bondsmen, who are a fixture in the city’s urban landscape. “Finding a bail bondsman is like finding a barber or a grocery store,” said Greg Carpenter, the founder of 2AM Bakery, a Baltimore business that rehabilitates ex-offenders. “Where crime is really prevalent and people are going to jail every day, bail bondsmen are as common as anything else.”

Competition is fierce. Despite a statutory prohibition on soliciting business near jails, bondsmen prowl the turf near central booking, looking for desperate loved ones of people in lockup. Shaw’s fiancée, Destiny, told me she was approached by several bondsmen when she went to visit Shaw immediately after his arrest. “A lot of people come up to you and say, ‘I’m a bail bondsman,’ ” she said. “It’s a hustle for them.”

Still, it pays to choose the right bondsman. Maryland law caps the fee a bondsman can charge at 10 percent of bail. Some bondsmen try to undercut the competition with “discounts” on their fees. Others offer financing with just 1 percent down. Shaw’s fellow inmates recommended a bondsman who was reportedly cheap—but in Annapolis. Unable to make the trip, Shaw’s mom and fiancée chose the option closest to the jail, the ironically named Baltimore Discount Bonds. The price they paid is like the price you get when you buy gas at the last station before the highway.

Bail bond contracts, like the one the Shaws signed, tend to follow a similar formula. They provide that the fee charged—the “premium”—is “fully earned” and “not refundable” once a person is released. They also often give bondsmen full access to all aspects of a bailee’s personal life. At Lexington National, for example, one of the nation’s largest bail bond companies, the standard contract available online gives the bail agent access to all “credit reports, Social Security Records, criminal records, civil records, driving records, tax records, telephone records, medical records, school records, worker compensation records, and employment records,” as well as the right to “attach a location tracking device on any vehicle owned or driven” by the bailee.

Shaw’s mother, Rosetta Wise, told me she is the principal guarantor on her son’s bail contract. She said the bondsman calls her every few weeks, threatening garnishment if the debt isn’t paid. Once, Shaw said, the bondsman came to offer a deal: $2,000 now to wipe out the debt. They couldn’t afford it.

Wise has been covering the last several months of payments while Shaw and Destiny try to get back on their feet. Shaw continues to work at U-Haul, and Destiny works in the flower shop and the deli at a local supermarket, but her schedule is unpredictable and her hours have been cut back. Complicating matters further is that they have a new baby, Kay, who was four months old at the time I met Shaw.

In mid-September, I visited them at their home, a dilapidated Section 8 first-floor apartment in East Baltimore with a bodega in the basement. The living room had a couch against one wall, an armchair, and a baby swing, where Kay was napping in a fuzzy pink and purple polka dot sleeper. A flat-screen TV, tuned to Disney Junior, was the sole indulgence. There was one window, and no pictures hung on the beige-gray walls that may once have been cream. “There’s no way I can pull it off,” said Shaw of the $100 payments he owes each week.

But it bothered him that his mother is paying the bondsman, and it was a clear source of tension between his mother and Destiny. In a speakerphone call while I was there, Shaw’s mother and his fiancée started disputing who paid what and how much. “You see what bail does to a family?” Shaw said.

Bail bondsmen call the fees they charge “premiums” in part to justify their non-refundability, but also because they argue that what they’re providing is “insurance.”

“Bail is similar to homeowners’ or auto insurance,” said Jeff Kirkpatrick, a bail bondsman in Jackson, Michigan, who is also executive vice president of the Professional Bail Agents of the United States, a trade association. “Say you went to jail for shoplifting or larceny and the judge set your bail at $10,000,” Kirkpatrick told me. “In most states, you would pay 10 percent to 15 percent of that bond amount as a premium. In return, the bond agent is guaranteeing the court that should you fail to appear and the bail agent failed to produce you, they would pay the court that $10,000.”

In truth, the “premiums” paid by defendants cover the fees that bail agents themselves pay to large insurance companies to guarantee payment on a bail bond. If somebody jumps bail, a bondsman calls on his insurer; he doesn’t put up the cash himself or deed over his house. Bondsmen are essentially brokers for these bigger firms. In Rafiq Shaw’s case, for example, his court files indicate that the surety of record is Crum & Forster Insurance, a subsidiary of a Toronto-based international conglomerate, Fairfax Financial Holdings Limited. Crum & Forster is one of fourteen national insurance companies and several regional insurance companies that specialize in cash bail. Many of them are members of the American Bail Coalition, another trade association for the bail industry.

The profit a bondsman makes is the difference between the premiums charged to a defendant and the premiums the bondsman has to pay the insurance company. That gives bondsmen an incentive to ensure that their clients show up in court: forfeiting a bond would have the same effect on their insurance as totaling a car. Kirkpatrick argued that this aspect of his business is a public service. “The bail agents do all the work they do at no cost to the taxpayer,” he said. “It’s one of those public-private partnerships that work really well. We’ve done a very good job of making sure that suspects appear.”

But the biggest “risk” bondsmen seem to assess is whether defendants can pay their premiums. While shows like Dog the Bounty Hunter have popularized the idea of fearless bondsmen on the hunt for dangerous suspects, real-life bail bonding has more in common with the sketchier side of the financial services industry than with law enforcement. The website of the Professional Bail Agents of the United States includes a page titled “How to Become a Bail Agent.” Half of the text is about choosing an insurance company to back your bail bonds; there is nothing about physical risk. “The bail profession is probably more about whom you know (or rather who knows you) than what you know,” the site says.

Moreover, police officers are often the ones who end up doing the work of finding defendants who jump bail. “Of those that fail to appear, it’s not bondsmen who bring them in,” said Steve Chin, a pretrial services officer in Mesa County, Colorado, and spokesman for the Colorado Association of Pretrial Services. “Ninety percent of them are being arrested by law enforcement. The only ones I see bondsmen bring in are the ones who’ve made an agreement with a bondsman for a fee and didn’t pay it back.”

Nonetheless, the bail industry has worked hard to insulate its position by pursuing and winning favorable legislation in the states. For example, while some states, like Maryland, cap premiums at a fixed percentage, other states also set a minimum amount, eliminating room for price competition. In Virginia, for example, state law requires that bail bondsmen “shall not charge a bail bond premium less than 10 percent or more than 15 percent of the amount of the bond.” Some states have also passed laws requiring judges to set money bail for certain kinds of offenses, such as domestic violence, thereby foreclosing judges from other options, such as release on personal recognizance. For example, until the recent passage of bail reform legislation that goes into effect next year, New Jersey required money bail for eighteen offenses, including murder and kidnapping but also resisting arrest, theft by extortion, and “corrupting or influencing a jury.” Many jurisdictions also rely on “bail schedules” that require fixed amounts of bail for particular offenses with no discretion for judges. In Los Angeles County, for example, a charge of first-degree robbery carries a mandatory bail of $100,000. Other states grant bondsmen grace periods of up to two years before a bond is fully forfeited. In Florida, for example, bondsmen have up to two years to produce a no-show before they forfeit a bond. Even if the police happen to pick up a fugitive on a bench warrant, the bondsman still gets a refund if he “substantially attempt[ed]” to find a defendant.

Many of these industry-favorable laws were passed during the 1990s as the result of an extensive effort by the conservative American Legislative Exchange Council to promote the bail bond industry. The ALEC website still includes model legislation for a variety of pro-bail bills, including variants of the legislation passed by New Jersey to require bail for certain offenses (the Alternative Method of Court Appearances Act and the Crimes with Bail Restrictions Act); a replica of the Florida legislation providing a grace period for bondsmen to track down bail jumpers (the Bail Forfeiture Relief and Remissions Act); and a proposal requiring the expiration of bail bonds after thirty-six months (the Bail Bonds Expiration Act).

No one really knows how big the commercial bail bond industry is in the United States. Some of the nation’s largest bail bond insurers are either foreign owned, such as Crum & Forster, or privately held, such as the American Surety Company, whose president is also chairman of the American Bail Coalition. A 2012 study by the Justice Policy Institute estimated that the industry writes roughly $14 billion in bail bonds per year, and the Professional Bail Agents of the United States says that there are about 14,000 bail agents nationwide.

“If I just wanted to make a lot of money, I’d get into the bonding business,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, a nonprofit research and advocacy group that opposes the use of cash bail. “It’s high profit and almost zero risk.”

Many defendants, however, can’t afford a bail bondsman’s services. Instead, they stay in jail until trial. It’s the flip side of the damned-if-you-do, damned-if-you-don’t nature of a criminal justice system that runs on money bail.

In fact, the majority of people currently in the nation’s jails are defendants legally presumed innocent and awaiting trial. According to the U.S. Bureau of Justice Statistics, 467,500 of the nation’s 744,592 jail inmates in mid-2014—or 63 percent—were “unconvicted” defendants in pretrial status, up from roughly 56 percent of the nation’s 621,149 jail inmates in 2000. Most are unlikely to commit new crimes or fail to show up in court. According to a 2015 survey by the National Association of Counties, 69 percent of county jail administrators judged the majority of their inmates to be “low-risk” defendants.

One reason for the rise in pretrial inmates is a rise in the use of money bail. The Bureau of Justice Statistics reports that judges set money bail on two-thirds of felony defendants in 2004, compared to half in 1990. Much of the time, the bail amounts are too high for a defendant to afford, even with the help of a bondsman. According to the same Bureau of Justice Statistics report, just one in ten defendants with bail set at $100,000 or more was released, compared to seven in ten for defendants facing bail of $10,000 or less. One study of defendants in Harris County, Texas, found that 39 percent of felony defendants with bail of $2,000 or less couldn’t afford to get out, as well as 22 percent of misdemeanor defendants with bail of $500 or less.

The inability to afford bail can have serious collateral consequences for defendants. For example, research by the Laura and John Arnold Foundation found that people detained pretrial were more than four times more likely to be sentenced to jail than people who were released, more likely to be given longer sentences, and more likely to be recidivists. People in jail are less able to meet with their lawyers, point them toward important witnesses, and put together the best defense. The disruptions resulting from staying in jail might mean the loss of a job or housing, which leads to economic instability or other consequences that could prompt a rearrest. People in pretrial detention are also more likely to plead guilty before the trial, because that might be the only way to avoid spending months or years in jail awaiting their time in court.

In Baltimore, defendants who can’t make bail within twenty-four hours of their arrest are entitled to a bail review hearing, which takes place every morning at 11 at the district court on Wabash Avenue. At the hearing, a judge reviews the district court commissioner’s initial bail determination to decide if the bail amount should be changed. Similar proceedings take place in many other jurisdictions around the country, and in Baltimore, at least, the result is yet one more level of capriciousness in the cash bail system.

While hearings take place in district court, the defendants are still in lockup at central booking. They appear in court via video on a screen at the left wall of the courtroom. This means that defendants who have questions for their attorneys can’t confer with their counsel in private. The resolution is grainy, and what you see are about a dozen men in yellow jumpsuits, mostly black or Hispanic, seated four at a time in rows of folding chairs with one empty chair up front.

Individual faces are too difficult to make out—which is perhaps fitting, given the routinized nature of each hearing. Under Maryland law, the judges who hear bail reviews are supposed to consider a variety of factors in deciding the conditions of a defendant’s release. These factors include not just the nature of the crimes charged, but also the defendant’s family ties in the area, work history, and prior record of appearances, as well as the recommendation of pretrial services, prosecutors, and the defendant’s own attorney. But within this structure, judges have immense discretion.

“It matters so much who the judge is,” Baltimore assistant public defender Nila Bala, one of the attorneys assigned to bail reviews, told me. “That matters more than anything else—more than the client, the charges, me, the state’s attorney, or any other factor. And the judges vary widely in what they will do in certain cases.”

To defend her clients, Bala drives to central booking at 7:30 every morning to interview the clients who are due for their hearings that day. She has about an hour to speak to her dozen clients before she jumps back in her car to get to the courthouse on time. If she’s lucky, she has spent ten minutes with each of them—most of it spent shouting on a phone through a glass partition, surrounded by other lawyers and their clients all doing the same thing. Bala said her goal is to persuade the judge to reduce her clients’ bail—or at least not increase it.

But on this day in September, her victories are few.

Judge Kent Boles, who is presiding today, calls a defendant on the screen, who shuffles toward the empty chair up front. Boles recites the charges and asks if the defendant understands the crimes he’s been accused of committing. After a rapid-fire rundown of the defendant’s address, education level, and prior record by a representative of pretrial services, the state’s attorney argues to maintain the current bail or even increase it, based on statements provided by police and witnesses. The defendant’s attorney then has a chance to respond. Much of what’s presented at these hearings is hearsay evidence that would likely be inadmissible at trial, but no objections or cross-examinations are permitted. Each hearing takes about ten minutes.

First up is Michael Atkinson, who faces four charges of first-degree assault, second-degree assault, and conspiracy to commit assault. His bail was initially set at $50,000, and pretrial services notes a failure to appear from 2004. Bala points out that this occurred more than a decade ago and asks for a reduction in bail to $10,000. The request is denied.

Next up is Khourtney Woodard, charged with possession of drugs with intent to distribute and currently held without bail. Bala’s colleague, public defender Elizabeth Whitman, argues that a defendant who is arrested for nonviolent drug violations, and who is a lifelong resident of Baltimore and unlikely to flee the city, should be allowed to bail himself out.

A few minutes after Whitman makes her case, the judge reduces Woodard’s bail to $500,000—a meaningless reduction for an indigent defendant.

The cases quickly take on a numbing sameness.

Emmanuel Rose. Armed robbery, second-degree assault, and theft of less than $100. Initial bail: $100,000. No reduction.

Samuel Faust. Handgun on person. Initial bail: $200,000. No reduction.

In one case, Boles reduces bail from $50,000 to $25,000. The defendant is Amir Barnes, who is charged with possession with intent to distribute. Bala argues that Barnes has no prior record and was caught with only ten grams of marijuana.

Court records show that Barnes was later able to bail himself out. The surety of record: Lexington National, one of the nation’s largest commercial bail companies.

Under a system of cash bail, a defendant’s pretrial freedom is largely a function of his wealth—not about the risk of reoffending or failing to show up in court. Judges might set higher bail amounts for defendants they perceive as higher risk—on the theory that they won’t get out—but demanding a cash ransom is a poor way to protect public safety. Indigent defendants who can’t afford even token amounts of bail stay trapped in jail as if they were high-risk suspects likely to commit new crimes or flee. Meanwhile, a murderer with money could be out on the streets. The only ones who profit from this inefficiency and injustice are the bondsmen.

There is a simple solution to the myriad of problems caused by money bail: Abolish it.

What happens instead to defendants awaiting trial should depend on their actual risk to public safety and the odds of their being a no-show in court. Under a “risk-based” system such as this, judges first decide whether a defendant is safe enough to release pending trial. Dangerous defendants stay in, while lower-risk defendants get out. The conditions of release for these lower-risk defendants, however, would depend on the likelihood of their flight or rearrest. For example, some defendants might be required to check in weekly with a pretrial services officer, while others might simply be released on their own recognizance. Still others might be required to post a money bond, but the amount would depend on their ability to pay.

The states that have already moved or are moving to such a risk-based system are Kentucky, Colorado, Alaska, and New Jersey, all of which have recently passed or are implementing bail reform legislation that would dramatically reduce, if not end, the use of cash bail. In November, New Mexico voters approved a constitutional amendment prohibiting the detention of defendants solely because of their inability to pay bail.

(In the District of Columbia—which long ago effectively eliminated money bail—the pretrial justice system has come under fire for high-profile mistakes in releasing defendants due to what the Washington Post editorial board characterized as the lack of “a sound system that uses reliable data to assess risks.”)

One factor driving this current wave of bail reform is new research finding that alternatives to up-front money bail work better to ensure that defendants show up in court. A 2013 study by the Pretrial Justice Institute, funded by the Department of Justice, found that “unsecured” bonds, which require no money up-front but are due in full if someone skips town, are just as effective as traditional cash bail in ensuring court appearances and preventing rearrests. In a controlled experiment in Colorado, defendants released on an unsecured bond, regardless of their risk, were less likely to commit new crimes than defendants released on traditional money bail. And all but the highest-risk defendants were more likely to show up in court.

A 2011 study funded by the Justice Department also found that simply mailing defendants a reminder to show up in court significantly reduced the number of people who failed to appear. In an experiment involving more than 7,800 misdemeanor defendants in Nebraska, only 8.3 percent failed to show up after getting a mailed reminder about their court date, along with information about what would happen if they failed to show. By comparison, 12.6 percent of defendants who got no such reminder were no-shows.

A second factor driving bail reform is the emergence of new evidence-based tools—known as “risk assessment
instruments”—to help judges decide whether a defendant should be released into the community and on what conditions. These instruments are helping to make a “risk-based” alternative to cash bail viable.

In Colorado, for example, which passed bail reform legislation in 2013, many judges now use the Colorado Pretrial Assessment Tool (CPAT), a twelve-question matrix that assesses a defendant’s risk of flight and danger to the community using such variables as age of first arrest, prior failures to appear, and current mental health issues or alcohol and drug problems.

Although Colorado still has a commercial bail bond industry, it has shrunk dramatically since the passage of the new law, said Steve Chin of the Colorado Association of Pretrial Services. In Mesa County, where Chin works, the use of traditional money bail fell from 65 percent of cases in 2011 to 39 percent in 2014 without any increase in rates of failures to appear or new crimes committed by defendants released into the community.

A third factor driving reform is that states are realizing how expensive it is to house all these inmates awaiting trial, especially when so many of them are “low-risk.” According to the Arnold Foundation, the cost of pretrial detention alone is at least $9 billion a year.

Alaska, for example, passed bail reform in the spring of 2016 as part of a sweeping criminal justice reform effort after legislators saw that the state’s largest prison—the Goose Creek Correctional Center in Point MacKenzie—was already running out of room after its opening in 2012. According to a report by the Alaska Criminal Justice Commission, Alaska’s jail population was growing at three times the rate of overall population growth in the state. Much of this growth was in the pretrial population, which grew 81 percent over the last decade. This growth, the commission found, was driven by reliance on cash bail.

“Our prison population trajectory was such that we’d have to build another prison within the next four years,” said state senator John Coghill, the lead sponsor of Alaska’s reforms. With the state already spending nearly 10 percent of its budget on corrections, building yet another prison was unpalatable to lawmakers.

As a result of all this activity, momentum is growing at the national level, too. Earlier this year, California Democratic Representative Ted Lieu introduced legislation that would require states to abolish cash bail as a condition of receiving federal grant support for state and local police. In December 2015, the White House convened a conference on excessive fines and fees in the criminal justice system that also included a look at cash bail.

Aspects of money bail are also under fresh judicial challenge. A pending class action suit in the Eleventh Circuit Court of Appeals, Walker v. City of Calhoun, is challenging the constitutionality of bail “schedules” like the one in Los Angeles County. In an amicus brief filed on behalf of the plaintiff, an indigent Georgia defendant named Maurice Walker, the U.S. Department of Justice argued that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment.” And in Maryland, home to Rafiq Shaw, the state attorney general released an advisory opinion in October 2016 concluding that the state’s current money bail system could be unconstitutional, on the grounds that imposing bail defendants can’t afford may violate the Eighth Amendment’s prohibition on “excessive bail” and the Fifth Amendment’s guarantee of due process. In late November, the Standing Committee on Rules of Practice and Procedure of the Maryland Court of Appeals recommended overhauling the state’s bail system, a significant first step toward reform and one that has taken advocates years to achieve.

By eliminating cash bail, states can ensure that poverty isn’t the only reason a defendant stays behind bars, and they can end the predation of low-income defendants by a commercial bail bond industry motivated more by profit than by protecting public safety. Getting rid of money bail would also stop the absurdity of cases like Rafiq Shaw’s—where an innocent man is paying for the mistakes of prosecutors and police.

“Bail is not fair,” said Shaw, who is now working to get his arrest record expunged so he can find a better job. “I’m not guilty. The case is over.”

The era of cash bail should end too.

The post Time to Abolish Cash Bail appeared first on Washington Monthly.

On the same day that they narrowly chose Donald Trump over Hillary Clinton in November, voters in Nueces County, Texas, also elected Democrat Mark Gonzalez—a Mexican American defense attorney with “NOT GUILTY” tattooed across his chest—to be district attorney. Gonzalez had easily defeated the incumbent in the primary in March. Curious to hear about his plans as the county’s new chief prosecutor, I called him the week after the general election. He had ideas for policy reforms—for instance, he plans to give defense attorneys open access to all files concerning their clients’ cases—but he seemed most eager to talk about something harder to pin down: changing the culture of the office.

“We want to bring back the humanitarian perspective,” he said. “There’s a current culture where they think everyone accused is a scumbag, and that is not the case. These guys aren’t all scum. Even if some of them are scum, their moms aren’t. Their dads aren’t. Their brothers and sisters and wives, who most of these guys have, aren’t. So I’ll bring a little bit of humanity to that office.” 

Gonzalez is one of at least ten criminal justice reform candidates who won local races for district attorney, including in Houston, Chicago, and even Birmingham, Alabama. Several candidates, though not Gonzalez, were backed by the liberal billionaire George Soros. Some owed their victories to incumbent scandals; still, they proved that it’s possible to campaign and win on a promise to be less punitive.

District attorney elections have only recently emerged as a focus of the criminal justice reform movement, spurred in part by outrage over the failure of prosecutors to bring charges against police for killing unarmed black men. But district attorneys (sometimes known by other titles, like county prosecutor or state’s attorney) have control over far more than prosecuting cops. The phrase “criminal justice reform” encompasses many ideas, but at its heart is the goal of ending mass incarceration. The U.S. prison population has risen meteorically since the late 1970s, only recently stabilizing, even though crime has fallen dramatically since the early 1990s. America has easily the highest incarceration rate in the world: 716 of every 100,000 residents are locked up, according to the most recent statistics, which comes to about 2.3 million people in prison or jail any given day. (Compare that to 118 of every 100,000 Canadians.) We have one-twentieth of the world’s population but one-quarter of its prisoners. Black and Hispanic people, about a third of the U.S. population, make up nearly 60 percent of prison inmates.

While criminal justice reform has recently become a surprisingly bipartisan issue, the election of Donald Trump—who plans to appoint as chief law enforcement officer Alabama Senator Jeff Sessions, who was blocked from a federal judgeship in the 1980s for, basically, being too racist—looks like a major setback. A BuzzFeed article published in the week after the election captured this feeling with the headline “The Election Might Have Killed Criminal Justice Reform.”

Hardly. It’s true that the election spells the demise of the bipartisan criminal justice Senate bill, and a Sessions-led Department of Justice could be disastrous in many ways. But the election of Donald Trump may end up having very little effect on mass incarceration. The federal government just doesn’t have much power over prison populations: the vast majority of incarcerated people are locked in state, not federal, prisons, for violating state, not federal, laws.

This goes against the instinct of many Americans that all policy emanates from Washington. Indeed, when it comes to crime policy, many instincts—even among people who care—turn out to be wrong. As John Pfaff, a law professor and economist at Fordham University, puts it in an important new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, liberals have been telling and retelling a “Standard Story” about the causes of incarceration: the war on drugs, private prisons, and harsher sentences. But when Pfaff looked at the data, he found that the Standard Story was wrong.

Start with the war on drugs. The most tenacious progressive myth about American prison growth is the idea that our prisons are packed with nonviolent drug offenders. Thus Michelle Alexander, whose 2010 book The New Jim Crow did more than any other to raise awareness of mass incarceration, could write, “the uncomfortable reality is that arrests and convictions for drug offenses—not violent crime—have propelled mass incarceration.” President Obama illustrated the myth’s staying power in a speech last year, when he said, “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high.” In fact, while drug convictions account for about half of federal prisoners, they represent only 16 percent of the state prison population, which is six times as large. More than half of state inmates are imprisoned for violent offenses, and from 1980 to 2009, convictions for violent crimes contributed to 60 percent of the growth in the state prison population. (It’s conceivable that the war on drugs indirectly fueled the rise in imprisonment for violent offenses, but Pfaff, looking at the data, finds it unlikely. One reason: illegal drug sales are not a precondition for urban gang violence.)

That doesn’t make the war on drugs a good thing. It just means that if the goal is to stop being by far the world leader in imprisonment, even legalizing all drugs wouldn’t be enough. And emphasizing the distinction between nonviolent and violent offenders, as much of the “smart on crime” rhetoric does, could make it even harder to convince the public to go easier on the latter group. Pfaff points out that some legislation easing penalties for low-level crimes simultaneously imposes harsher penalties for the “bad guys.” (One way Trump could do indirect damage is by perpetuating the lie that violent crime is at an all-time high, as he did during the campaign.)

But wait: don’t we want violent criminals behind bars? Sure, but that principle only goes so far. We want safe roads, but we don’t lower the speed limit to zero. Incarceration imposes terrible social and economic costs on inmates, their families, and their communities. The question is one of balance. It’s difficult, if not impossible, to define precisely the “right” incarceration rate, but the current situation is not even close. Pfaff, surveying various studies, concludes that rising imprisonment in the 1970s and ’80s—when the prison population was actually low relative to the crime rate—helped stem the rise in crime, but that today, the return on added imprisonment is close to zero.

And even if spending on prisons has an impact on crime, there are better ways to go about it. The economist Steven Levitt, looking at the 1990s crime drop, has estimated that “a dollar spent on prisons yields an estimated crime reduction that is 20 percent less than a dollar spent on police.” Social science shows that when it comes to deterring crime, what matters most is certainty of punishment, not severity. That’s because people who commit crimes are already less likely to weigh the long-term consequences of their actions. It’s also because the up-front costs of being arrested are enormous regardless of how long someone spends in prison or whether he is convicted at all. The threat of having to explain an arrest to one’s friends, family, or boss is incentive enough for most people to follow the rules.

“Yet our policies,” Pfaff writes, “get this completely backward.” For most crimes, the clearance rate—the percentage of crimes that result in police making an arrest—has stayed the same or even declined since the 1960s. In 2014, the clearance rate for murder was 65 percent, meaning more than one in three murders—murders!—go unsolved in the United States. The numbers for other crimes are even worse: 39 percent for rape, 30 percent for robbery, 14 percent for burglary. If legislators are serious about fighting crime, they should be focusing relentlessly on boosting police budgets. Instead, they pass symbolically satisfying laws like “three strikes”—which are doubly foolish because most young men age out of violent behavior pretty quickly. Most “violent offenders,” a term Pfaff would like to retire, “are not violent people; they are simply going through a violent phase.” Yet many are locked up for years past the point when they are likely to pose a continued risk of violence.

Just as easing up on nonviolent offenders wouldn’t make much of a dent in mass incarceration, neither would closing private prisons. Shortly after the election, a link made the rounds on social media showing a sharp spike in private prison stock, probably reflecting the market’s confidence that the Trump administration will reverse Obama’s decision to end contracts for non-immigration detentions. But private prisons, for all their notoriety, housed only 8 percent of inmates at their peak in 2008; half of these were held by either the federal government, Texas, or Florida. And while private prisons are surely lobbying against cutting the number of inmates, their political clout is dwarfed by that of public prisons, which employ far more people and exert tremendous pressure on state legislatures.

Again, this doesn’t mean reformers should rush to embrace private prisons. It means that paying them too much attention risks distracting from the more important drivers of mass incarceration.

I have been guilty of a version of this myself. Writing in 2015, I criticized Obama for repeating the nonviolent offender myth. But in that very article, I pushed the third aspect of the Standard Story: the idea that prison populations have increased because inmates are spending more and more time in prison. Sentencing laws, after all, have been getting harsher for decades. In the 1980s and ’90s, many states adopted mandatory minimums; abolished or restricted parole; and passed repeat-offender or three-strikes statutes that imposed ultra-harsh terms for even minor repeat convictions. It seems inevitable that this would all lead to more time served.

That the inevitable has not occurred is the most startling part of Pfaff’s argument. It isn’t that people are spending more time in prison than they used to; it’s that more people are getting sent to prison in the first place. If inmates were serving more time on average, then the number of prison admissions would be growing faster than the number of releases; more people would be going in every year than coming out. But since the 1970s, those numbers have risen pretty much in lockstep. In fact, most people who go to prison don’t spend as much time there as you might think—even violent offenders usually get out in two or three years. We’ve all heard the stories about people serving life sentences under three-strikes laws for petty theft, but, as Pfaff points out, they make the news precisely because they’re rare. Between 2000 and 2010, as the total prison population grew by just over 200,000, the average time served for many crime categories, including violent crimes, actually appears to have declined slightly.

How can this be? The answer points to a critically overlooked fact about incarceration: prosecutors, not legislatures, decide how much time people serve. That’s because while legislatures write the laws, and cops make the arrests, it’s prosecutors who decide what a defendant will actually be charged with. And since more than 95 percent of felony cases that are not dropped end in a guilty plea rather than a trial, the prosecutor’s choice is almost never checked by a judge or jury. (Judges can reject plea deals, but almost never do.)

Think of a district attorney as a customer at a diner and the list of criminal statutes as the menu. The harsh sentences are the shrimp scampi—they’re available, but hardly anyone ever orders them. In 1973, for instance, New York State passed the notoriously draconian Rockefeller drug laws. But, Pfaff points out, drug sentences didn’t actually begin to rise in New York until 1984, when the crack epidemic hit. Why? Because up to that point, prosecutors simply didn’t charge defendants under the laws. The same thing appears to be true with respect to the wave of tougher sentences passed in the 1980s and ’90s.

What prosecutors have done is get more aggressive about whether to charge people with felonies in the first place. This, Pfaff shows, is the real driver of rising incarceration rates. Pfaff looked at data collected by the National Center for State Courts logging the number of felony cases filed from 1994 to 2008. Here’s what he found: over that period, as crime and arrest rates were declining steadily, the chance that any given arrest would lead to a felony charge doubled. How prosecutors make that one decision—whether to charge a defendant with a felony—explains almost all of the growth in incarceration.

Of course, in solving one mystery—the specific cause of prison growth since at least the 1990s—Pfaff has raised an even more difficult one: Why did prosecutors grow more willing to bring felony charges, even as crime rates plummeted? Even by the standards of the criminal justice system, where comprehensive data is hard to find, prosecutors are a black box; their decisions are subject to almost no oversight. Maybe the availability of harsher sentences spurs them to file more felony charges, even if they don’t send people away for longer; maybe politically ambitious district attorneys have gotten more worried about looking soft on crime. There’s no way to know from the existing data.

The centrality of prosecutors to prison growth is in some ways discouraging. It’s easier to confront a problem that can be resolved with a discrete fix: passing a big drug-decriminalization bill, banning private prisons, or getting rid of mandatory minimums. The truth is that mass incarceration is much messier, and solving it will require wrangling with a complex web of laws, habits, and incentives varying across fifty states and thousands of jurisdictions.

But there’s a bright side to the pivotal role of local elected prosecutors: reformers can make an impact regardless of who’s in the White House or Congress. The small wave of reform district attorney victories on election day is proof. It’s an open question whether electing prosecutors like Mark Gonzalez will have an impact on incarceration rates, but any criminal defense attorney will tell you that the problem with many prosecutors’
offices is exactly what Gonzalez talked about: culture.

Though he is better at diagnosis than prescription, Pfaff has some suggestions for broader reforms, like plea bargaining guidelines that force prosecutors to offer less punitive deals; rezoning district attorneys’ offices so that suburban voters don’t get to elect urban prosecutors; and, provocatively, relying more on private prisons, but paying them based on how prisoners perform after they’re released. And while prison growth is mainly a state issue, there is one simple thing the federal government could do to make a huge impact: give states money to fund indigent defense. Having a good defense lawyer is one of the most powerful ways to check the power of a prosecutor, and a $4.5 billion annual grant would double the amount states currently spend on public defenders, who represent the overwhelming majority of defendants.

But legislative reforms will only go so far. As Pfaff puts it, “[C]hanging the attitudes of prosecutors, not their options, will likely have the biggest impact.” The lesson from November 8 is that the best way to change attitudes may be to change prosecutors. Voting out an incumbent is no guarantee of success, of course—it depends who the replacement is. Realistically, reformers won’t be able to monitor every charging decision the new district attorney makes; they’ll have to elect people they can trust. “This means that in the long run, reform groups will have to focus not just on getting out the vote, but on grooming people to run in these races,” Pfaff writes.

The example of Mark Gonzalez suggests a fertile recruiting ground: the defense bar. Lawyers who work in public defender offices, in particular, are passionate about their work. That passion leads them to view working in prosecution as akin to treason—after all, as Gonzalez said, many prosecutors’ offices have a culture that dehumanizes defendants.

But that’s exactly why committed defense attorneys should run for district attorney. Culture is something that’s very hard to change through litigation or legislation. A prosecutor with the right priorities can do more good, for many more defendants and their communities, than even the most capable public defender.

When I spoke with Gonzalez, I asked him what he worried about in his new role. “Being in charge of somebody’s freedom,” he said. “The reality that I could send somebody to prison who maybe didn’t do what we think they did. That’s a scary thought, and that responsibility is a huge one. As the elected DA, that’s on my shoulders. If you’re the DA and not worried about that every time you make the decision, you probably shouldn’t
be there.”

Indeed. One priority for criminal justice reformers must be figuring out who should be there
instead.

The post All Criminal Justice Reform Is Local appeared first on Washington Monthly.

Donald Trump has been called “America’s Silvio Berlusconi,” and the similarities between him and the former Italian prime minister are indeed striking—the hair jobs, the conspicuous womanizing, the media manipulation, the TV-pitchman-style demagoguery. But Berlusconi’s style didn’t really include playing on religious and ethnic fears. That’s why I think the more apt—and worrisome—comparison is to Slobodan Milosevic.

Like Trump, the former Yugoslav president came to power by fanning ethno-nationalist sentiments whose strength surprised even him. In 1987, Milosevic, then a loyal Communist Party apparatchik, went to Kosovo to mediate a protest by minority Serbs against the province’s ethnic-Albanian-dominated government. The party at that time took a hard line against nationalist speech. But when the protesters complained of rough handling by the Kosovo police, Milosevic told them, “No one will ever dare beat you again!” A TV clip of that remark went, as we say now, viral. Overnight, Milosevic became a hero to Serbs throughout Yugoslavia for having defied what we would today call “political correctness.” He used that celebrity to take over the presidency of the Serbian Republic, to foment protests by restive Serbs in Bosnia and Croatia, and to provide those Serbs arms and ammunition.

During the years of carnage that followed—the ethnic cleansing, the rape camps, the 100,000 people killed—journalists and foreign leaders who met with Milosevic came away with impressions of the man remarkably similar to what many today say about Trump. He was brash and confident in public, but polite and conciliatory in private. He was obsessed with controlling and manipulating the press. He seemed not even to believe the nationalist rhetoric he spouted, but to be using it to gain and hold power. He trusted nobody but his family.

There are other parallels. We remember the breakup of Yugoslavia as driven by ethnic/religious divisions, but there was also a huge economic component. During most of the Cold War, Yugoslavia was a relatively prosperous country, but in the 1980s living standards plummeted thanks to austerity measures brought on by high foreign debts. Tensions grew between the industrialized, higher-income northern (Catholic) republics like Croatia and Slovenia, and the poorer farming- and mining-based republics like (Orthodox Christian) Serbia and Montenegro.

As a journalist covering Yugoslavia in 1995, I spent a fair amount of time with Serbs in both Bosnia and Serbia. I met plenty of educated professionals in Belgrade, the Serbian capital, who abhorred Milosevic, but many more working-class and rural Serbs who, in retrospect, remind me of Trump voters. They believed themselves to be the patriotic heart and soul of Yugoslavia but misunderstood and looked down upon. They would remind you that the Serbs fought with the Allies in World War II, while the Croats sided with Hitler. They’d argue that the government had minimized the economic and political power of Serbs, the largest group in the country, and granted special privileges to minorities, like Albanians and Croats. They’d complain that those minorities showed their gratitude by demanding more autonomy, and ultimately independence, for their regions; that this would render Serbs in those regions “minorities in their own country”; and that therefore Milosevic was right to support their armed uprisings. If you pointed out that the Serbs had started the fighting and that, because they controlled the heavy weaponry, they were doing most of the killing, they’d tell you—reflecting Milosevic’s official state-run media line—that that was just Western propaganda. If you sat with them watching images on CNN of Bosnian Muslim bodies being pulled from mass graves, as I did with a family in a provincial town in southern Serbia, they’d tell you CNN manipulated those images, and that the slaughter either hadn’t happened or, if it had, the Serbs weren’t responsible. The fact that their own economic situation was declining precipitously even as Milosevic’s business cronies, many of them outright criminals, were getting rich did not seem to dull their loyalty to his regime.

Milosevic was an opportunist. I doubt he planned to lay waste to his country and die in a cell in The Hague. He merely followed the logic of the ethno-nationalism he unleashed. So too with Trump. His plans are unclear, perhaps even to himself. But over the next four years, events will occur—a terrorist attack by radical Islamists, a left-wing protest in which police are killed, a takeover of federal lands by armed right-wingers—that will test him. Will he bend to the normal pressures of the office and act with lawful restraint, or in ways that feed his base and fuel more violence? I hope and expect the former. His words and actions during and after the campaign clearly imply the latter.

Fortunately, we don’t have to passively accept whatever Trump decides. As Barry Lynn, Anne Kim, and Phil Keisling argue in this issue’s cover package, Democrats have more ways to fight back in the short term and retake power in the long term than they might realize. Daniel Stid makes the case that even congressional Republicans have reason to resist if Trump steps over constitutional lines.

The United States in 2017 is not Yugoslavia in 1995. We have a longer, deeper experience with democracy and a more robust system of checks and balances. But the next four years will severely test that system. We must all do our part to make sure it doesn’t fail.

The post Is Donald Trump America’s Milosevic? appeared first on Washington Monthly.

At his rallies, Fidel Castro was fond of bellowing, “Socialismo o muerte!”—Socialism or death! Death finally caught up with the dictator last November, and Cuban socialism’s days are likely numbered as well. The Cuban people soon will enter the post-Castro period after President Raúl Castro steps down in two years, as he has promised. What comes after that is anyone’s guess. To be able to have any influence in this transition period, Washington will need to identify which Cubans are in the best position to steer events.

As the United States goes through its own transition, the Trump administration will have to decide whether to continue President Obama’s normalization of relations with Cuba or to slam on the brakes, demanding that Havana cease oppression of political dissidents and pursue concrete steps toward democratization.

In our approach to Cuba, we first have to understand what makes official Cuba tick. The reality is that the Communist Party may indeed be history, but one major player is likely not only to stick around, but to keep calling the shots. That player is the Fuerzas Armadas Revolucionarias (FAR), Cuba’s armed forces. The FAR play a role outsized to their numbers, now around 90,000, down from double that during the Cold War years.

The FAR are widely considered to be Cuba’s best-managed and stablest government organization and are held in respect by Cubans generally. They run the economy and control politics. Since he succeeded his brother as president eight years ago, Raúl, who had commanded the FAR since the revolution, has expanded their role. More than half of the Communist Party’s Politburo members have a military background, while the Council of Ministers is likewise dominated by active-duty or retired FAR officers.

The Cuban military controls 60 percent of Cuba’s economy and takes in 40 percent of foreign exchange revenue. The FAR’s so-called “entrepreneur soldiers” manage a wide docket that includes sugar and cigar production, tourism, information technology, and aviation. One in five Cuban workers is employed by the FAR’s holding company, GAESA, which is headed by Raúl’s son-in-law, Luis Alberto Rodríguez López-Callejas, an army brigadier who speaks English with a proper upper-class British accent.

I got to know Cuban military officers as the State Department’s representative at monthly military meetings on “The Line”—the border between U.S. and Cuban territory—at Guantánamo Bay Naval Base. I found them to be professional, constructive, and amiable. The general who headed the Cuban side even offered to find me “a beautiful Cuban wife,” which I politely declined, having a beautiful American wife already. For years our respective militaries built up a modest level of mutual trust through collaboration on migration matters, sea-air rescue, counternarcotics, oil pollution response, and firefighting. Once, on flying into the naval base, the pilot of our small aircraft had to perform a corkscrew landing to avoid clouds of billowing black smoke kicked up by a brush fire sparked by exploded land mines on the Cuban side as firefighters from both sides of the fence worked together to put out the blaze. Since normalization under Obama, bilateral contacts and cooperation have been growing.

Occasionally, indications surface of tension between old-guard Fidelista officers and younger technocrat/entrepreneur officers. The future lies with the latter group, who are eager to build trust with Washington in hopes the United States won’t “pull an Iraq” on them by encouraging the FAR’s dismantlement in a postcommunist new order and opening the gates to chaos. In order to have the most impact on change, the U.S. needs to get to know and cultivate the pro-reform elements within the FAR.

I visited scores of Cuban families in their homes as a U.S. diplomat with the task of monitoring the human rights conditions of those who tried and failed to flee their country. I was struck by how Cubans always had one eye on the dinner table and one eye on the clock—meeting the daily challenge of how to feed their families while patiently awaiting the time when they could join the globalization wave. Their fretting fed the Cuban proclivity for dark humor. One example:

Student: “Before the revolution, the government took this country to the edge of an economic abyss.”

Teacher: “And after the revolution?”

Student: “Now our government has taken a big step forward.”

Change has been slow in coming. After retiring in 2008, Fidel hovered over Cuba as an éminence grise, second-guessing his younger brother’s decisions. While Fidel grudgingly went along with Raúl’s cautious economic reforms, he had little to say about rapprochement other than that he didn’t trust the U.S. Now that his big brother is gone, will Raúl feel freer to liberalize the Cuban economy and accelerate normalization? If so, time is running out. The eighty-five-year-old revolutionary has said he will retire in 2018. His designated successor, First Vice President Miguel Díaz-Canel Bermúdez, is a dour Marxist apparatchik with questionable political staying power. For the first time since the 1959 revolution, Cuba will not be led by a Castro. How will the U.S. deal with it?

Trump has issued conflicting signals. He told CNN earlier this year that he would “probably” maintain diplomatic relations with Cuba, but added vaguely that he would insist on “much better deals than we’re making.” But he took a tougher line in a campaign stop in Miami several weeks ago, saying, “All of the concessions Barack Obama has granted the Castro regime were done through executive order, which means the next president can reverse them, and that I will do unless the Castro regime meets our demands.” Vice President–elect Mike Pence repeated that position on Twitter, asserting that Trump would rescind President Obama’s executive orders without “real political and religious freedom” in Cuba.

With the news of Fidel’s death, Trump issued a statement denouncing his legacy “of firing squads, theft, unimaginable suffering, poverty and the denial of fundamental human rights.” That tough talk caters to the anti-Castro political right, which includes many, mainly older, Cuban Americans. Polls show, however, that a large majority of Americans and now most Cuban Americans favor normalization.

So does the U.S. business community. According to the U.S. Agriculture Coalition for Cuba (USACC), Cuba, which imports 80 percent of its food, is a $1.7 billion market for agricultural products. Last year, the U.S. Commerce Department issued approvals for business transactions worth $4.3 billion, up by a third from the previous year. Tourism will doubtless surge in the years ahead regardless of the fifty-six-year-old official ban that is still in place. Remittances from the United States, estimated at $3 billion for 2015, play a significant role in Cuba’s state-controlled economy.

USACC, whose membership includes agricultural conglomerates Cargill, Smithfield Foods, and Sun-Maid, is devoting serious money to lobby Congress to lift the embargo and fully normalize relations. So is the U.S. Chamber of Commerce. The Cuba Opportunity Summit will hold its third convention next spring at NASDAQ headquarters to explore expanded business opportunities with Cuba. Tickets go for between $995 and $1,695, and interest in the first two conventions was so strong that applicants had to be waitlisted.

How will Trump respond to this kind of commercial momentum? Will we see the pro–tourism development, hotel-building Trump, or the right-wing appeaser Trump? American leverage can be a carrot or a stick. The latter approach was pursued by ten presidents, starting with Dwight Eisenhower, and accomplished little more than allowing the Castros to use the U.S. as a scapegoat for Cuba’s mismanaged economy. The former approach, however, enables the U.S. to gain leverage by being involved with Cuban society at multiple levels, ranging from trade and investment to cooperation on migration and law enforcement to people-to-people contacts. It was easier for Havana to thumb its nose at American interests when there was near-zero U.S. economic and commercial involvement in the island. Major American involvement in Cuba’s economy, in particular, will deepen Cuba’s integration into the global economy, raising the stakes for both sides and tempering political relations. The Trump administration needs to realize that allowing Cuba policy to be haunted by Fidel Castro’s ghost is a bad idea. American business interests will resist it, and both the Cuban and American people deserve better.

The post Advice for Trump on Post-Fidel Cuba appeared first on Washington Monthly.