As I was saying…

The coup de grâce occurred on the very last play of Monday night’s Seahawks-Packers fiasco. The miraculous reception of a Hail Mary pass was neither. Thank you, replacement refs. I suggested here that the non-call (Tate’s offensive pass interference in the end zone) and the “simultaneous possession” call giving Seattle the victory—combined with the universal condemnation of both—would force the greedy owners’ hand. They quickly ended the lockout and the veterans will be back on the job for tonight’s game.

Dave Zirin says that the regular officials scored a big victory in the negotiations. Go, Labor!

Two constitutions

Former Supreme Court Justice John Paul Steves discusses law professor Sanford Levinson’s book Framed in the current issue of The New York Review of Books. While I would not expect Stevens to endorse Levinson’s call for a constitutional convention to amend the document, I was disappointed that he didn’t give more credence to Levinson’s criticism of the U.S. Constitution, a fundamentally flawed instrument, in my judgment.

According to Stevens’s review, Levinson divides the Constitution in two, one is about “settlement” the other about “conversation.” Among the former are such things like the president must by American-born and at least 35 years old. The conservation part, as we might imagine, gets tricky. But it’s clearly the more interesting. Stevens:

In particular, Levinson devotes significant attention to the Constitution’s preamble, noting that it relates more to an understanding of the purposes motivating ambiguous constitutional provisions (what he calls the “Constitution of Conversation”) than to an assessment of the wisdom of the clear provisions (the “Constitution of Settlement”).

The current five-member majority of the court would seem to have nothing to do with the “constitution of conversation.” Justice Scalia, ever the pompous, presumes to interpret the plain reading of the text, attaching no significance to intentions or motivations or first principles—all subject to considerable debate and, one can only hope now, reassessment and accommodation in light of changing circumstances.

Let’s take the disastrous opinion Citizens United, imbued with sanctimonious reference to free speech and Congress’s inability to abridge it, save for matters of safety and security (e.g., can’t falsely yell “fire” in a crowded theater with neither smoke nor flames present). As Bill Moyers makes clear, the supremes were naive, at best, and unforgivably ideological, at worst. Here’s a lengthy expert from the linked program, which features Trevor Potter, a Republican lawyer who nevertheless believes in both transparent elections and limiting corporate campaign contributions:

BILL MOYERS: Well, you take us right to the core of it. How can secret corporate cash be a legitimate function of democracy?

TREVOR POTTER: Well, it’s interesting that the Supreme Court in the Citizens United decision, the one that I and I think many other people think was a big mistake, even there, they went out of their way, eight to one, four in the majority, all in the minority got together and said, “Disclosure is a high value in a democracy.”

And what Justice Kennedy, who had written this majority opinion said is, “Today, for the first time, we’re going to have a situation we’ve never had before in America, where corporations are going to be able to spend unlimited amounts and it will be fully disclosed. Stockholders–”

BILL MOYERS: I remember that.

TREVOR POTTER: “Stockholders will know how their money is being spent, they’ll be able to use corporate democracy to object, and voters will know who’s paying for the ads. Which,” he said, “is an important democratic value, that knowing where the ad is coming from, who is speaking to you informs you about the context of the ad and enables you to judge it.

“And,” he said, “to hold politicians accountable so that if someone gets elected after millions have been spent for them, and you know it was the X industry or the Y industry that did it, you can then judge them and see whether they dance to the tune of those industries and hold them accountable.” So the good news is, the court said, “These are American values. They are consistent with our constitution.” The bad news is, we don’t have the disclosure system he promised us we had.


TREVOR POTTER: Well, did he misread the law? Supreme Court justices shouldn’t. He’s right, the McCain-Feingold law did require disclosure that we’re not getting. He talked a lot about the internet and the fact that it would give us instant disclosure. But as you and I know, you know, garbage in, garbage out. If the–

BILL MOYERS: And I thought–

TREVOR POTTER: –information isn’t there, it won’t turn up.

BILL MOYERS: I thought that’s where we were seeing the naïveté of a Supreme Court justice really out of touch with reality. When he said, “Okay, we’re going to give them the right to spend all this money, but shareholders in particular and citizens can go to the internet, get the information they want, and then hold them accountable if they’re not spending money for the company’s profit,” right?

TREVOR POTTER: Right. And of course, that’s interesting in itself, because it reveals the bias of that decision. He assumed the test was, are they spending the money in the way that most profits the company? And that’s very interesting if you think about it, because–


TREVOR POTTER: Well, I mean, you go back to the founding of our country. And the founders’ view was that we would be citizens, and we would act in the interests of the country, in our greater interests. They didn’t think that everyone would go out and try to act solely in their own self-interest to better themselves if it was bad for the country.

These were people who had fought a war, who had left their families and their homes, clearly not in their self-interest. So to say that the right thing to do in a democracy is have a corporation spend money in ways that will give them the most profit, never mind what happens to anyone else or the best of the country. It is, I think, an example of why you don’t really want corporations participating directly in elections.

They have a very narrow interest. Which is supposed to be their shareholders. But we want voters and citizens to have a broader interest. To think about the next generation, to think about the greater good. There’s an interesting quote from the head of Exxon in a new book out on Exxon where he says, “Exxon is not a U.S. corporation, we do not act in the best interest of the United States.”

Well, it is a U.S. corporation, but what he meant is, they have shareholders all over the world, they have investments all over the world, and it’s not his job to do things that are good for America, it’s his job to do things that are good for his international shareholders.

BILL MOYERS: But under Citizens United, he can contribute as much money as he or his board wants to on – secretly, on projects that may not be in the national.

TREVOR POTTER: Right. Again, this is the nasty combination of the really, the incredibly dangerous accident of Citizens United that allows this unlimited money and the other cases that have allowed unlimited contributions with a lack of disclosure. Because the presumption, the reason the court said this wouldn’t be corrupting is we would know who was giving and could hold them accountable. And we don’t.

No fair reading of Madison’s diary of the Constitutional Convention, the Founders’ writings, or the Constitution itself justifies the Citizens United decision. Yes, the ruling would not fall under the “settlement” portion of the Constitution, belonging firmly within the “conversation.” But surely Madison, Jefferson, et al. would erupt from their graves to rebuke the court for giving personhood to corporations then bestowing on them the free speech protections of the First Amendment.

Levinson, as should we all, is especially perturbed by the electoral college and that portion of the Fifth Amendment guaranteeing the states equal suffrage in the Senate. Of the former, as we witnessed in 2000, a candidate can clearly win the popular vote but nevertheless lose the electoral college, which determines the outcome. In this year’s campaign most of the money is being spent in just three battleground states, whose combined electoral votes will decide November’s election.

As for the Fifth Amendment and equal suffrage, Nevada has as much clout as California, despite the former having just seven percent of the population of the latter, 2.6 million to 37.7 million. Dumb. But try changing it.

The 18th century Founders, detesting both monarchy and mobs, came up with “checks and balances.” Now try to get something done.

The U.S. Constitution appears to have been designed to fail. Funny how an overwhelming majority of Americans have absolutely no confidence in Congress. Yet…

Tom Paxton wrote a song back in the 60s called “What Did You Learn in School Today?” Among the lyrics:

“[I learned that] our leaders are the finest men, and so we elect them again and again.”

No, people. They’re not, no matter what you were taught.

The Constitution sucks. Congress sucks. Citizens United sucks. Because the Constitution sucks, so does judicial review, the power of the Supreme Court to overturn Congress.

But Levinson’s call for a constitutional convention has as much chance of happening as my pitching the deciding game of this year’s World Series. Ain’t gonna happen.

Doing more with less

Given his awful performance last night (see box below), two-time Cy Young Award winner Tim Lincecum could be dropped from the playoff rotation. A really bold, but perfectly understandable move by Bruce Bochy would be to remove him from the roster altogether. Of course, I’m only speculating, as sports fans are wont to do.

I have only wished the best for the Freak from Renton. But it’s been almost painful to witness his repeated struggles this year, as he desperately tries each outing to “find his groove,” or whatever he once had. So far he’s been unsuccessful. Tragic.

Last night against the Arizona Diamondbacks:


Despite the lousy numbers, Lincecum is a very rich man. He signed a two-year deal in January that pays him over $40 million. He becomes a free agent at the end of 2013. If next year is anything like this one, a couple of pigs and a bushel of carrots could be his market value. Ouch.

Greek protests

The protests seem entirely predictable: yesterday Spain, today Greece. Austerity hurts, and Europe’s peripheral populations seem to have had enough. The Times:

Protests erupted across Greece on Wednesday as trade unions called a nationwide strike to contest billions of dollars in new salary and pension cuts being discussed by the government and its international creditors.

Some key indicators tell us what’s going on. First, unemployment is high.


Even during relatively good times, say just before the Great Recession, Greece’s unemployment rate was not all that low, dipping just below eight percent at the end of 2007.

Housing permits, an indicator of economic activity, have steadily fallen after a huge spike just before 2006.


Meanwhile, total production has declined.


The economic downturn has taken its toll on wages and compensation.


One might expect lower labor costs to translate into increased exports. Not so.


We can appreciate the huge gap between the pre-recession trend and the new one. Huge.

Greece’s government has been practicing austerity, as required by Germany, mostly. Here’s total government investment as a percentage of GDP, with the fourth quarter of 2007 equal to 100.


But it’s not just the government that’s cutting back. Here’s a look at the private sector.


So, when both the private and public sectors tighten their belts—at the same time—pressure is sure to build, with foreseeable consequences, including widespread rioting. Though the throngs were “modest,” by Greek standards (“only” 30,000 to 40,000 in Athens alone), the Times reports:

But violence broke out shortly after 1 p.m., as a group of protesters wearing black face masks hurled gasoline bombs at police officers on Vasilissis Sofias, a wide avenue abutting the Parliament building, sending bursts of flame and black smoke into the air. Firebombs were also thrown at the Finance Ministry and into the lush National Gardens next to Parliament. Crowds scattered inside Athens’s central Syntagma Square when similarly clad youths destroyed a tent and set part of it on fire.

Anna Afanti, 50, a secondary school teacher, removed a surgical mask she had been wearing to ward off the tear gas to denounce Greece’s foreign creditors. “They just want to impoverish us, to bring our salaries down to the level in India and swoop in and buy everything on the cheap,” she said, referring to planned privatizations of state assets.

Ms. Afanti, who traveled about 40 miles from the town of Halkida to Athens with several colleagues to attend Wednesday’s protest, said her salary had been cut by a third since the crisis hit, making it harder to care for her three children, one of whom is disabled. “I should have left this country a long time ago,” said Ms. Afanti, who teaches English and Italian literature. “Now I’m stuck here.”

Smaragda Aivalioti, 21, an economics student at Athens University, had planned to stay in Greece despite the crisis. “But now I just don’t see any hope,” she said. “All the odds are stacked against Greece. Even if we stay in the euro, life will be wretched. What’s the point?”

Speaking to state television from the demonstration, Alexis Tsipras, the head of the leftist opposition party Syriza, which opposed Greece’s bailout terms, said the country’s only hope was in Greeks’ rejecting austerity.

Numerous government services across the country were shuttered for the day, and main transportation arteries in central Athens were disrupted. Flights to and from the main Athens airport were delayed as air traffic controllers briefly took part in the strike.

Doesn’t look good.


Curbing the deficit

The New York Times‘ Jackie Colmes takes on both Romney and Obama for their respective strategies to reduce the deficit. Neither strategy, he concludes, will do the trick. But is that even an appropriate goal given the dismal state of the economy?

We’ve seen what happens when European governments cut back on spending, ostensibly to reduce their fiscal imbalances. Their economies shrink, unemployment levels remain high, and capital remains on the sidelines.

Let’s look at the UK, whose prime minister, David Cameron, pledges to continue with his government’s austerity measures “because the situation remained ‘a lot tougher than forecasters were expecting,'” according to The Guardian. He sees a silver lining in reduced inflation, which is good for those with lots of cash and financial instruments. But what about the rest of the country?

The UK unemployment rate remains high.


As we might expect from the above chart, UK’s employment-population ration has fallen.


Despite—or, more likely, because of—the austerity measures, the central debt continues to climb.


Meanwhile, the economy is underperforming (source).


Here in the US we’re practicing our own form of fiscal austerity. Take a look.


State and local governments have severely contracted their spending; the federal government not quite as much. But, hey, inflation remains low.



Certainty for the Rest of Us

It has become fashionable during these times of economic malaise to blame the problems on certainty, or, more precisely, its lack. Invariably the uncertainty has almost everything to do with wealthy investors sitting on the sidelines waiting for, well, certainty. We are to understand that they want assurances that their taxes will remain low, that regulations will diminish, that labor unions will remain few in number and weak in power, and that politicians in both camps will do their bidding. In short, they want it all, and feel hurt should their paid minions fail to deliver or, as Paul Krugman suggests, others should “look funny at them.”

But uncertainty afflicts us all—the rich, the poor, and in between. Those out of work would like the certainty of a job, especially one paying a livable wage with modest benefits. Those contemplating retirement relish certainty of income from pensions or financial instruments. Firms across the nation would like the certainty of demand: before they build or make something, they must have confidence that people will buy their products.

In Europe these days exists a tug-of-war between those who preach and practice austerity (that presumably heretofore profligate governments must tighten their belts so as to induce “certainty” among investors) and those who suffer the consequences of these measures. As I write, events in Spain, a country particularly hard hit by its own housing-bubble collapse, exhibit the pain, the misery, and the frustration of prolonged unemployment—if not precipitated by, then assuredly exacerbated by that government’s austerity measures, imposed as a condition for capital infusion from the continent’s core nations, notably Germany. The New York Times:

The pressures facing the government of Prime Minister Mariano Rajoy mounted on several fronts on Tuesday, as thousands of demonstrators besieged Parliament and Spain’s two largest regions took steps that underscored their deepening economic troubles and displeasure with his austerity plans.


The thousands who have formed a ring around the Spanish parliament claim that they have no intention of occupying the building. Rather, they wish “to show that ‘democracy has been kidnapped ‘and needs to be saved from the hands of inept Spanish politicians,” according to the Times.

Greece, as we know, has its own problems, including a rising unemployment rate. Protests there have become commonplace.


Let’s think about these graphs for a moment. The unemployment rate for both countries is above 20 percent. During our Great Depression the official unemployment rate hit 25 percent, which, based on their trajectories, both Greece and Spain will soon surpass.


But we’re doing much better today than during the Great Depression or compared with Greece and Spain, as this chart suggests:



Upon observing these charts should we be thinking about a “new normal” for the United States, one marked by persistent high unemployment and economic stagnation? Consider that when the unemployment rate tends toward a fifth of workers, people take to the streets demanding that their governments do something, anything to provide them with jobs. We didn’t come close to reaching 20 percent following the collapse of the housing bubble and the Wall Street meltdown. One can argue that the bailout and the stimulus package prevented it, and certainly there are those who believe that Congress should have done much more to bring down the unemployment rate to pre-recession levels. But there it is—the rate is stuck at around eight percent nationwide, with no signs of moving significantly in either direction.

Meanwhile, of course, those with lots of money are making even more of it, with record-high profits and accumulating financial portfolios. I don’t pretend to understand how the few continue to amass great fortunes while the Rest of Us struggle to keep afloat. But I suspect that this new normal of stubbornly high—but not too high—unemployment keeps enough people modestly satisfied with their situations, not rich but not poor. In turn, their demands for increased wages and benefits remain stifled. Most important to those who have money, low inflation persists. We should add an historical note: the Right’s longtime contempt for labor unions paid dividends, as union participation rates continue to plummet, thus eliminating what John K. Galbraith called a “countervailing force” against the excesses of capital.


Economic output has been declining on a year-to-year basis for decades.


So, one might be tempted to forget about all this certainty nonsense for the One-percenters. They’re doing just fine, thank you.

Sunset Falls and the PUD race

The current PUD board campaign features a contest between incumbent Kathy Vaughn and challenger Eric Teegarden. Both favor energy conservation and renewable resources, topics that often differentiate candidates, but not this year.

What may divide November’s competitors, judging by this letter to the editor, is the future decision on the Sunset Falls small hydro project, which the PUD is exploring. The writer appears to be sorely mistaken on key factors.

The writer:

Ms. Vaughn supports the Sunset Falls Dam because she has neither the skill set nor the drive to set the PUD on a course of sustainability.

There has been no decision by Ms. Vaughn, Ms. Olson, or myself. But what does one’s ultimate preference for or against the project have to do with a commissioner’s “skill set”?

And the writer has clearly not been paying attention to what the PUD has been doing for, say, the last half-dozen years. We’ve established annual records for energy conservation acquisition and pioneered development of solar energy, tidal power, and geothermal. The utility recently completed two small hydroelectric facilities that will bring sustainable power for years to come.

As for the Sunset Falls project, the writer commits egregious or misleading errors. Let’s see.

…it will reduce the river to a trickle, destroying one of the last wild rivers in North America…

I have no idea as to the source of this ridiculous notion. But it’s spectacularly wrong. If the project is approved then completed, I would defy anyone to visibly notice its effects on river flows. The falls themselves will remain as they always have—with the proposed weir located far upstream and out of view to the camera perspective below.

The writer claims that the proposed project “is hugely expensive.” Well, one must ask, Compared to what? The board has been apprised of the site’s preliminary economics: the levelized cost of the project’s output would range between $65 and $80 a megawatt-hour. Here’s a list of PUD supply resources and their nominal costs:


Small hydro, including the proposed Sunset Falls project, costs a bit over $60/MWH, which is much less than the other renewable resources listed. The PUD has explored utility-scale solar, which has an estimated cost of about $150/MWH. The tidal power estimates have been consistently higher than other resources, but we expect those costs to decline with further research and development. The point here, is that small hydro is economically competitive and, pace the writer, not “hugely expensive.”

While I have no doubt, based on both Mr. Teegarden’s declarations and the sentiments of his supporters, that he would vote against the project should he be elected, it is at least unfair, and certainly premature, to cast Ms. Vaughn as a supporter. I should add that however the board eventually decides, it will do so on the basis of actual facts and figures and not on unfounded hyperbole.