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A Citizen's Guide to SCOTUS Live Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=27142"><span class="small">Garrett Epps, The Atlantic</span></a>   
Monday, 04 May 2020 12:47

Epps writes: "Starting Monday, the Court will at long last air the audio of oral arguments live. For the first time ever, the public will be able to experience oral argument as it happens."

The US Supreme Court building. (photo: Stefani Reynolds/Bloomberg)
The US Supreme Court building. (photo: Stefani Reynolds/Bloomberg)


A Citizen's Guide to SCOTUS Live

By Garrett Epps, The Atlantic

04 May 20


America’s new reality show begins Monday.

merica’s typical amusements—March Madness, the NBA playoffs, Major League Baseball Opening Day, the U.S. Open, the Masters—have suddenly disappeared. Just in time, though, a new Big League debuts tomorrow, offering a welcome spectacle of bare-knuckle combat, vicious competition, taunts, and trash talk.

The Ultimate Fighting Championship will return on May 9. Until then, the United States Supreme Court is the only show in town.

Starting Monday, the Court will at long last air the audio of oral arguments live. For the first time ever, the public will be able to experience oral argument as it happens. This was formerly the sole prerogative of justices, lawyers, reporters, and the few citizens who are able to gain tickets by waiting for hours (or days).

The format will be rather staid, whether one is watching on C-SPAN or listening via the radio or the internet. I have always thought a Court broadcast should be a cross between TV coverage of Wimbledon and the World Series of Poker—hushed, aristocratic-sounding announcers whispering comments on strategy while an Upshot-like needle moves back and forth, changing the predicted outcome with each question and answer.

But that’s not likely: Rather, we will probably see a graphic depicting the justice or lawyer who is speaking. Argument will begin with the traditional “cry” of the marshal, “Oyez, oyez, oyez: All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court.” Next, the chief justice will call the case, saying, “We will hear argument in [the number of the case],” then recognize the first counsel to argue. Each side is usually allotted 30 minutes for argument; this is sometimes divided between the individual parties and amici, or organizations with a strong interest in the outcome. The party that argues first—the “petitioner” or “appellant,” depending on the case—will have three minutes at the end for rebuttal.

In-person oral argument has heretofore been a mixture of Judge Judy and feeding time at the Sea World shark tank, as justices jump in and talk over one another with questions genuine or rhetorical. It has become so hard in recent years for advocates to complete a sentence that last October, Chief Justice John Roberts announced a new rule: Every advocate would be allowed two uninterrupted minutes at the beginning before the sharks could start to feed.

For the forthcoming broadcast arguments, however, the rules will be different. In a press release Tuesday, the Court announced that the two-minute allowance will remain in effect. However, afterward, the justices will question by turns: “The Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority.”

I am not sure that this will work as well as hoped; some of the justices strike me as willing to ask questions for the full 30 minutes of argument, leaving no time for anyone else. Whether Roberts will intervene in such an instance remains to be seen.

Oral argument is a curious ritual. Most of the time, it tells us (or at least me) little about the outcome of a case. Justices may seem to express views on an issue that, it later turns out, they were simply floating as a way of finding an argument’s counter-argument. And as experienced appellate lawyers know, a case is very rarely won on oral argument, however brilliantly conducted, though it can surely be lost on it.

Oral argument does reveal something about the personality and disposition of each of the justices, and about the assumptions they will carry with them into the conference room where they will decide the case. And because oral argument is as much spectacle as substance, it’s worth thinking about the players in terms of their show-business analogues. Here’s a playbill:

CHIEF JUSTICE JOHN ROBERTS: Roberts is a character familiar to anyone who watches comedy: the tight-lipped, wary authority figure who tries, usually in vain, to maintain order in a forest full of unruly creatures. Think, perhaps, of Ranger Smith on The Yogi Bear Show, or Herbert Lom as the long-suffering Commissioner Dreyfus in the Pink Panther movies. Before his confirmation, he compared himself to an umpire calling balls and strikes; among the justices, he is sometimes a referee, blowing the whistle when one of them jumps offside. During argument in the Affordable Care Act cases, Roberts ordered Justice Antonin Scalia to stop riffing on old Jack Benny routines. When Scalia continued, Roberts snapped, “That’s enough frivolity for a while.” Even Scalia got the hint. Roberts can be gracious to lawyers; his humor is dry and rarely designed to sting. But he is not a jovial presence on the bench, and he is capable of turning choleric in an instant, often when an advocate makes a favorable remark about federal bureaucrats, for whom he clearly feels contempt.

JUSTICE CLARENCE THOMAS: Thomas is the Silent Bob of the Court. But don’t mistake his reticence for disengagement. On the bench, he is typically the most active in sending pages out to fetch him volumes of case reports or other materials; he whispers constantly to his seatmate, Justice Stephen Breyer. (I assume that the Court’s meeting software will have a “private chat” function.) If Thomas does open his mouth, viewers and listeners can boast that they were virtually there on an important day—like being in the stands when Hank Aaron surpassed Babe Ruth’s all-time home-run total.

JUSTICE RUTH BADER GINSBURG: At argument, Ginsburg is a kind of cross between Tweety Bird and a ninja assassin. Listeners at home may need to strain to understand Ginsburg’s questions. Rest assured, though, that they are good ones—she knows the record, is a grand master of federal procedural rules, and has a reason for each inquiry. Ginsburg is not a bully, but she does expect an answer to her question, and if not answered carefully, a Ginsburg question can play hob with an argument.

Her most memorable bon mot of the past decade came during argument in United States v. Windsor, the successful challenge to the federal Defense of Marriage Act. Paul Clement, representing members of Congress who supported DOMA, told the Court that, under the law, states were free to recognize same-sex marriage, but the federal government had no obligation to recognize those marriages. “You are really diminishing what the state has said is marriage,” Ginsburg said. “You’re saying, ‘No, state [must have] two kinds of marriage: the full marriage, and then this sort of skim-milk marriage.’”

JUSTICE STEPHEN BREYER: Anyone familiar with children’s television will recognize Breyer at his first word; he is the human incarnation of King Friday XIII from Mister Rogers’ Neighborhood, complete with the air of authority, the elevated vocabulary, and the superb diction. Most oral arguments feature what I call the “Breyer page”—a question from Breyer that takes up a full page of the typed transcript. His questions can be baffling or charming; my favorite is from the second argument of a case called Kiobel v. Royal Dutch Petroleum, where the issue was whether corporations could be sued in American courts for human-rights violations they commit abroad. “Do you think in the 18th century if they brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, ‘Oh, it isn’t me; it’s the corporation’—do you think that they would have then said: ‘Oh, I see, it’s a corporation. Goodbye. Go home’[?]” Breyer is less interested in abstract principles, close readings of text, or notions of the “original understanding” than in workable solutions to present-day problems. In a Court that is often divided into ideological camps, Breyer isn’t a predictable liberal vote, and the Breyer question of each argument is, once a listener unpacks it, usually worth pondering.

JUSTICE SAMUEL ALITO: In the 2011 Looney Tunes Show episode “Jailbird and Jailbunny,” Daffy Duck goes into court as a prosecutor, battering Porky Pig and Bugs Bunny with statements like “Maybe you’re nervous because you’re lying!” Alito is a former federal prosecutor. During oral argument, he is capable of responding with Daffy-style rage to an answer he doesn’t like. His questions tend to be either distractions aimed at the disfavored lawyer (a go-to move is to begin bringing up state-law or procedural issues not passed on by lower courts) or subtle misstatements of the record, seeking to trap the lawyers into a damaging concession. It’s hard to counter, but it can be done: In June of last year, the Cornell professor Sheri Lynn Johnson argued for the life of Curtis Flowers, a Mississippi inmate who had been convicted six different times for the same crime (appellate courts tossed four of the convictions, and one was a mistrial; Mississippi wanted to execute him after the sixth). Alito hammered Johnson with questions moving errors from one trial to another or distorting rulings from the trial bench. Johnson patiently corrected each misstatement. Flowers is a free man today.

JUSTICE SONIA SOTOMAYOR: Sotomayor seems a lot like R2-D2, the relentlessly determined droid in the Star Wars movies. Her trademark question usually begins (insincerely) with “I’m sorry,” followed by a challenge to an advocate’s statement of fact or proposition of law. Like her frequent antagonist, Alito, she often seems to know the record and the briefs inside out. And like Alito, she may try to force a lawyer into an admission he or she will regret later. Sotomayor is the most subject to interruption by male justices. Some of this is gender-based, to be sure (male lawyers and justices talk over Ginsburg and Justice Elena Kagan as well), but some is because, well, she talks quite a lot.

JUSTICE ELENA KAGAN: If Alito is Daffy, Kagan is Justice Bugs. Like the trickster bunny, she is smart, sensitive to nuance, and impishly funny. She can be sharp in tone and is capable of metaphors as complex as Breyer’s. At a 2016 oral argument, she compared a provision of the Federal Vacancies Reform Act to a complicated lunch order:

Number one, I’ll have the house salad. Number two, I’ll have the steak. Number three, I’ll have the fruit cup. And then I tell the waiter, notwithstanding order number three, I can’t eat anything with strawberries. So on your theory, the waiter could bring me a house salad with strawberries in it, and that seems to me a quite odd interpretation of what’s a pretty clear instruction: No strawberries.

It is hazardous to predict Kagan’s actual vote from her oral-argument questions, perhaps because over time she has gained a reputation for bargaining after argument with the chief justice and, sometimes, other justices, to shape a compromise decision.

JUSTICE NEIL GORSUCH: Fans of Star Trek: The Next Generation remember Q, the omniscient, omnipotent being from another dimension who regarded mere humans with amused contempt. In the TV series, the part belonged to the actor John de Lancie. In the Supreme Court continuum, Q is played by Neil Gorsuch. Soon after he ascended to the bench, The Washington Post’s Robert Barnes called him “an active, aggressive and somewhat long-winded questioner.” He is, like Q, also capable of remarkable condescension. In October 2017, as the voting-rights lawyer Paul Smith was presenting a redistricting case, Gorsuch suggested, “Maybe we can, just for a second, talk about the arcane matter, the Constitution”—implying that his senior colleagues were ignorant or careless of the Constitution they are all sworn to interpret. Captain Jean-Luc Picard and the Enterprise crew learned to work around Q, but it’s not clear they ever came to love him.

JUSTICE BRETT KAVANAUGH: Before the Senate Judiciary Committee, Kavanaugh seemed a lot like Jack Nicholson in The Shining: angry, snarling, and vindictive. Since his confirmation, though, Kavanaugh has seemed more like Boo-Boo Bear, content to play sidekick to Chief Justice Roberts. He has his own conservative causes. He was most aggressive recently during argument in Espinoza v. Montana Department of Revenue, a challenge to the invalidation of an entire state school voucher program because Montana’s constitution forbids subsidies to go to religious purposes. Kavanaugh, a Catholic, suggested that the state constitution displayed “grotesque religious bigotry against Catholics.” He spoke 21 times in that argument—more often than any other justice except Sotomayor.

FOR THOSE KEEPING SCORE AT HOME: Try not to overread individual questions or exchanges. In close cases, I don’t think oral argument tells us what will happen. I do think, though, that the process should have been broadcast live long ago. The taxpayers, after all, pay for the stage on which the justices preen and strut. Argument is a useful introduction to how lawyers think about the Constitution, federal statutes, and the role of government. And beyond that, it is entertainment for a nation entering its second month of social distancing. It really is, for law nerds and other so-inclined individuals, what UFC cage matches are for the athletically minded—a savage competition pitting the very best appellate lawyers in America against one another in front of judges who, regardless of persuasion, are among the smartest jurists in the world.

The justices have fought for decades to keep the public from this powerful and important spectacle. Now—at least as long as the pandemic lasts—we can all watch and learn.

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FOCUS | Crashing Economy, Rising Stocks: What's Going On? Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51503"><span class="small">Paul Krugman, The New York Times</span></a>   
Monday, 04 May 2020 11:57

Krugman writes: "What's bad for America is sometimes good for the market."

Paul Krugman. (photo: MasterClass)
Paul Krugman. (photo: MasterClass)


Crashing Economy, Rising Stocks: What's Going On?

By Paul Krugman, The New York Times

04 May 20


What’s bad for America is sometimes good for the market.

he economic news has been terrible. Never mind Wednesday’s G.D.P. report for the first quarter. An economy contracting at an annual rate of almost 5 percent would have been considered very bad in normal times, but this report only captured the first few drops of a torrential downpour. More timely data show an economy falling off a cliff. The Congressional Budget Office is projecting an unemployment rate of 16 percent later this year, and that may well be an underestimate.

Yet stock prices, which fell in the first few weeks of the Covid-19 crisis, have made up much of those losses. They’re currently more or less back to where they were last fall, when all the talk was about how well the economy was doing. What’s going on?

Well, whenever you consider the economic implications of stock prices, you want to remember three rules. First, the stock market is not the economy. Second, the stock market is not the economy. Third, the stock market is not the economy.

READ MORE

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FOCUS: Neo-Nazi "Reopeners" Would Kill Nearly as Many Americans as Died in All US Wars Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51519"><span class="small">Juan Cole, Informed Comment</span></a>   
Monday, 04 May 2020 10:32

Cole writes: "A new simulation by the University of Pennsylvania's Wharton School predicts that if all the states completely reopened today and all Americans ceased all social distancing measures, a million people would die in this country by June 30."

Dawn Perreca protests on the steps of the Michigan State Capitol building in Lansing, Wednesday, April 15, 2020. Flag-waving and honking protesters drove by the Capitol to show their displeasure with Gov. Gretchen Whitmer's orders to keep people at home and businesses locked during the COVID-19 outbreak. (photo: Paul Sancya/AP)
Dawn Perreca protests on the steps of the Michigan State Capitol building in Lansing, Wednesday, April 15, 2020. Flag-waving and honking protesters drove by the Capitol to show their displeasure with Gov. Gretchen Whitmer's orders to keep people at home and businesses locked during the COVID-19 outbreak. (photo: Paul Sancya/AP)


Neo-Nazi "Reopeners" Would Kill Nearly as Many Americans as Died in All US Wars

By Juan Cole, Informed Comment

04 May 20

 

oughly 1,264,000 US soldiers have died in all the wars this country has ever fought.

A new simulation by the University of Pennsylvania’s Wharton School predicts that if all the states completely reopened today and all Americans ceased all social distancing measures, a million people would die in this country by June 30. That is, almost as many would die in the next two months as soldiers died in all of US wars in all of US history.

That is the outcome being demanded by the “reopen” protesters who menaced Michigan’s state capitol with confederate flags, Nazi paraphernalia, and assault weapons. They are a tiny group and should not be given too much attention, especially since some of the protests are astroturfed by the super wealthy, such as the DeVos’s in Michigan. Gov. Gretchen Whitmer denounced the racism and Nazism.

What she should really have denounced is the willful ignorance.

Wharton says that even if we just keep things the way they are, with most states at lease partially closed and individuals practicing social distancing, we would still lose 116,000 by June 30.

The reason a complete and immediate reopening would kill so many is that Americans don’t have immunity to the novel coronavirus and it is extremely contagious. At a transmission rate or Ro of 3, I figured everybody in the country could get it in a month if no mitigation was done.

If you just let it run wild you’d get 24 million cases in the next two months, and a million deaths. Note that the mortality rate would go way up if you let it run wild because there would be no intensive care units for many of those who needed them and they would just die at home or stacked up on gurneys at the hospital waiting for some oxygen.

Wharton also shows that if we let the one million grandmas and grandpas die (most deaths come in people over 60 like me), the hit to the economy would be much less than if we continued mitigation.

The Wharton model is right about some things. For instance, if we are already at 70,000 deaths (an undercount because of people who die at home undiagnosed or who are wrongly classed as having died of pneumonia) in early May, we are certainly going to have more than 116,000 dead by August, which a previous model had suggested.

Why the United States is the biggest coronavirus catastrophe in the world is a little bit of a mystery. 

Ohio Governor Mike DeWine rescinded a requirement that all Ohioans wear a face mask when they go out, after he got tremendous feedback from, he said, people who didn’t want the government telling them what to do. 

Ohioans are apparently not as smart as people in Hong Kong, who have a not very good government that was not very pro-active about the coronavirus threat, and who just volunteered as a population to wear face masks. Hong Kong was a potential pandemic hot spot, being relatively densely populated. 

University of North Carolina social scientist Zeynep Tufekci points to universal mask-wearing in Hong Kong as one of the reasons for its low death rate:

The white supremacists and nut jobs who menaced elected state officials with their military-style assault weapons could have what they want, a substantially open economy, but with some conditions.

They’d have to be willing to wear face masks (and not the big white kind with the pointy top).

Then, we’d need to be testing on a very large scale across the country daily, and then we would need, nationally, 100,000 contact tracers. Once people positive for the virus or for antibodies against it have been identified, they would be interviewed about all the people they might have spread it to in the past couple of weeks, and those people would be contacted and asked to quarantine.

As Zeeshan Aleem at Vox writes, South Korea did it this way, with less than 300 deaths and little shutdown of the economy (it did close schools and some public facilities).

But guess what? The far right and just the ordinary right wing, and maybe a lot of the independents have been propagandized for decades that government is bad and can never do anything efficiently and should be starved of funds and reduced to a pitiful, tiny little thing so that big corporations and the super-wealthy don’t have to pay their fair share of taxes for public services.

And to deal with the coronavirus successfully while keeping the economy open, you need one thing.

A bigger, better government.

And that is one of the things wrong with the Wharton School model– it doesn’t have the third option, of large-scale testing and contact tracing. As it is, its model is a zero sum game where more shutdown and social distancing produces fewer deaths and more economic misery, whereas opening up immediately produces many more deaths but less of a hit to GDP.

There is another possibility that spares both lives and the economy.

Unfortunately, it would require a competent set of national leaders to implement it, and we instead have someone in the White House who is perfectly willing to sacrifice a million Americans at the altar of the supreme Dow Jones. 

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The Pandemic Has Made the US Healthcare Crisis Far More Dire. We Must Fix the System Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=54231"><span class="small">Bernie Sanders and Pramila Jayapal, Guardian UK</span></a>   
Monday, 04 May 2020 08:25

Excerpt: "When it comes to our current healthcare system, the waste, cruelty and dysfunction was glaringly obvious even before the horrific pandemic we are now experiencing."

'Our public health system is incredibly weak, in part because of consistent federal disinvestment and austerity that have decimated too many public health agencies.' (photo: Eric Gay/AP)
'Our public health system is incredibly weak, in part because of consistent federal disinvestment and austerity that have decimated too many public health agencies.' (photo: Eric Gay/AP)


The Pandemic Has Made the US Healthcare Crisis Far More Dire. We Must Fix the System

By Bernie Sanders and Pramila Jayapal, Guardian UK

04 May 20


Before the pandemic, 87 million were uninsured or underinsured in the US. We must finally guarantee healthcare to everyone as a human right

hen it comes to our current healthcare system, the waste, cruelty and dysfunction was glaringly obvious even before the horrific pandemic we are now experiencing. Today, as millions of Americans lose their jobs and their healthcare benefits that come with them, it is now virtually impossible for any rational person to defend a system – unique among wealthy countries – that ties healthcare to employment, and is designed only to make huge profits for the insurance industry and drug companies, while ignoring the needs of ordinary Americans.

Before the pandemic, 87 million people were uninsured or underinsured in our country, and more than 30,000 people died every year because they couldn’t get to a doctor when they needed to see one. More than half a million families declared bankruptcy each year because of medically related debt. One out of five Americans could not afford the outrageously priced prescription drugs their doctors prescribed to them. And our healthcare outcomes, from maternal deaths to life expectancy to infant mortality, lagged behind most other industrialized nations.

And for all of that, the United States still spends nearly $11,000 on healthcare for every adult and child – more than twice the average of other major countries.

That was before the pandemic. The situation is far more dire now.

Over just the last five weeks, more than 26 million Americans have lost their jobs and now face a crisis unique among advanced countries: for most of them, their healthcare was tied to their jobs. In America, unlike any other major country, when you lose your job, you lose your healthcare. As a result, up to 35 million Americans are estimated to see their health coverage disappear in the middle of this Covid-19 nightmare. And premiums for those who retain their health insurance in this crisis could increase by up to 40% . As horror stories circulate of $34,000 coronavirus medical bills, the uninsured remain terrified of going bankrupt just to get tested and treated for Covid-19. In many cases, they just cannot afford to go to a doctor or the hospital.

But it’s not just the high cost and growing number of uninsured that expose the irrationality of the current system. It’s that the current “system” makes absolutely no sense to anyone. It is an incredibly byzantine and complicated collection of independent entities without a common purpose – except greed. Think about it: In the midst of the worst healthcare crisis in modern American history, with thousands of doctors and nurses and other medical personnel becoming infected and sometimes dying, hospitals and clinics have, for financial reasons, been forced to lay off thousands of medical workers at a time when they are needed most.

Further, our public health system is incredibly weak, in part because of consistent federal disinvestment and austerity that have decimated too many public health agencies. In most states, we lack the capability to significantly increase the level of coronavirus testing and contact tracing we need to begin to safely reopen the economy.

Price-gouging and profiteering has affected everything from hand sanitizer to respirator prices which, in some cases, have more than quintupled – virtually overnight. Cities, states and hospitals continue to fight over scarce gloves, gowns, masks and ventilators. Four out of five frontline nurses don’t have enough protective equipment. In the richest country in the history of the world, nurses caring for coronavirus patients have resorted to wearing trash bags as makeshift protective gear. That is an international embarrassment.

The current crisis has also exposed, to a horrific degree, how the massive level of income and wealth inequality in America magnifies healthcare inequities, and financially ravages our most vulnerable people. Rural hospitals and community health clinics, which often treat the poor, are on the verge of going bankrupt and shutting down. Major outbreaks are attacking our Black, Hispanic, Native American and undocumented communities, as well as the incarcerated and the homeless.

State and local data show that more than 30% of reported deaths have been African American, even though they only make up less than 15% of the population. The perverse irony of our broken for-profit healthcare system is that black, brown, rural and low-income people are most likely to be uninsured or underinsured, delaying or forgoing the costly necessary treatments or prescription drugs that could prevent the very conditions that make them most susceptible to the virus. It is no coincidence that the poor, the working class, the sick and the elderly disproportionately make up America’s 1m reported coronavirus infections and over 57,000 deaths – the largest figures of any country on Earth.

If there is any silver lining in this unprecedented moment that we find ourselves in, it is that we must use this time to reassess the foundational institutions of American society and determine how we go forward into a better future. With tens of thousands of Americans dying and millions losing their jobs, how sad it would be if we learned nothing from all that we have done wrong.

Do we really want to continue the current expensive and cruel system that ties healthcare to our jobs? Or do we need a simple, comprehensive and cost-effective system that understands that healthcare is a human right for all of our people – employed or unemployed, young or old, rich or poor?

Do we really want to continue being ripped off by the pharmaceutical industry that charges us, by far, the highest prices in the world for prescription drugs? Or do we want a system that negotiates drug prices like every other country on Earth?

Do we really want to continue the complicated, wasteful and bureaucratic system in which virtually every visit to a doctor or hospital requires the filling out of endless forms in order to determine how much of our deductible we have paid, what percentage of our procedure is covered, and whether we got sick in the appropriate “network”? Or do we want a simple system in which we go to any doctor we choose and never see a bill, because the system is publicly funded?

Do we really want to continue having a woefully inadequate primary healthcare system because medical and nursing school graduates, faced with huge student debt, often gravitate to communities where they can make big bucks? Or do we want to make sure we have an appropriate number of medical personnel in the locations where they are most needed?

The good news is that a growing number of Americans – especially in the face of this pandemic – believe that this dysfunctional and wasteful healthcare system must be replaced. A poll conducted this month, for example, indicated that 69% of all Americans – including 68% of independents and 88% of Democrats – support providing Medicare to every American.

The bad news is that the healthcare industry, which made more than $100bn in profits last year and provides their CEOs with huge compensation packages, will do everything possible to maintain the status quo. And don’t be fooled: they will lobby just as hard against any lesser proposal as they will against Medicare for All, buying politicians with campaign contributions and spending endless amounts of money on lobbying and advertising.

There is no question that this will be an enormous challenge – but we can win this struggle if we engage people in the political process in a way we have never done before. We are all in this together. In this unprecedented moment in American history, let us stand united and harness the solidarity and compassion that so many are now demonstrating. Let us, finally, guarantee healthcare to all our people as a human right.

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Crushing the States, Saving the Banks: The Fed's Generous New Rules Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=54230"><span class="small">Ellen Brown, Web of Debt</span></a>   
Monday, 04 May 2020 08:25

Brown writes: "Congress seems to be at war with the states. Only billion of its nearly trillion coronavirus relief package - a mere 5% - has been allocated to the 50 states; and they are not allowed to use it where they need it most, to plug the holes in their budgets caused by the mandatory shutdown."

Mitch McConnell. (photo: CNN)
Mitch McConnell. (photo: CNN)


Crushing the States, Saving the Banks: The Fed's Generous New Rules

By Ellen Brown, Web of Debt

04 May 20

 

ongress seems to be at war with the states. Only $150 billion of its nearly $3 trillion coronavirus relief package – a mere 5% – has been allocated to the 50 states; and they are not allowed to use it where they need it most, to plug the holes in their budgets caused by the mandatory shutdown. On April 22, Senate Majority Leader Mitch McConnell said he was opposed to additional federal aid to the states, and that his preference was to allow states to go bankrupt.

No such threat looms over the banks, which have made out extremely well in this crisis. The Federal Reserve has dropped interest rates to 0.25%, eliminated reserve requirements, and relaxed capital requirements. Banks can now borrow effectively for free, without restrictions on the money’s use. Following the playbook of the 2008-09 bailout, they can make the funds available to their Wall Street cronies to buy up distressed Main Street assets at fire sale prices, while continuing to lend to credit cardholders at 21%.

If there is a silver lining to all this, it is that the Fed’s relaxed liquidity rules have made it easier for state and local governments to set up their own publicly-owned banks, something they should do post haste to take advantage of the Fed’s very generous new accommodations for banks. These public banks can then lend to local businesses, municipal agencies, and local citizens at substantially reduced rates while replenishing the local government’s coffers, recharging the Main Street economy and the government’s revenue base.

The Covert War on the States

Payments going to state and local governments from the Coronavirus Relief Fund under the CARES Act may be used only for coronavirus-related expenses. They may not be used to cover expenses that were accounted for in their most recently approved budgets as of March 2020. The problem is that nearly everything local governments do is funded through their most recently approved budgets, and that funding will come up painfully short for all of the states due to increased costs and lost revenues forced by the coronavirus shutdown. Unlike the federal government, which can add a trillion dollars to the federal debt every year without fear of retribution, states and cities are required to balance their budgets. The Fed has opened a Municipal Liquidity Facility that may buy their municipal bonds, but this is still short-term debt, which must be repaid when due. Selling bonds will not fend off bankruptcy for states and cities that must balance their books.

States are not legally allowed to declare bankruptcy, but Sen. McConnell contended that “there’s no good reason for it not to be available.” He said, “we’ll certainly insist that anything we borrow to send down to the states is not spent on solving problems that they created for themselves over the years with their pension programs.” And that is evidently the real motive behind the bankruptcy push. McConnell wants states put through a bankruptcy reorganization to get rid of all those pesky pension agreements and the unions that negotiated them. But these are the safety nets against old age for which teachers, nurses, police and firefighters have worked for 30 or 40 years. It’s their money.

It has long been a goal of conservatives to privatize public pensions, forcing seniors into the riskier stock market. Lured in by market booms, their savings can then be raided by the periodic busts of the “business cycle,” while the more savvy insiders collect the spoils. Today political opportunists are using a crushing emergency that is devastating local economies to downsize the public sector and privatize everything.

Free Money for Banks: The Fed’s Very Liberal New Rules

Unlike the states, the banks were not facing bankruptcy from the economic shutdown; but their stocks were sinking fast. The Fed’s accommodations were said to be to encourage banks to “help meet demand for credit from households and businesses.” But while the banks’ own borrowing rates were dropped on March 15 from an already-low 1.5% to 0.25%, average credit card rates dropped in the following month only by 0.5% to 20.71%, still unconscionably high for out-of-work wage earners.

Although the Fed’s accommodations were allegedly to serve Main Street during the shutdown, Wall Street had a serious liquidity problem long before the pandemic hit. Troubles surfaced in September 2019, when repo market rates suddenly shot up to 10%. Before 2008, banks borrowed from each other in the fed funds market; but after 2008 they were afraid to lend to each other for fear the borrowing banks might be insolvent and might not pay the loans back. Instead the lenders turned to the repo market, where loans were supposedly secured with collateral. The problem was that the collateral could be “rehypothecated” or used for several loans at once; and by September 2019, the borrower side of the repo market had been taken over by hedge funds, which were notorious for risky rehypothecation. The lenders therefore again pulled out, forcing the Fed to step in to save the banks that are its true constituents. But that meant the Fed was backstopping the whole repo market, including the hedge funds, an untenable situation. So it flung the doors wide open to its discount window, where only banks could borrow.

The discount window is the Fed’s direct lending facility meant to help commercial banks manage short-term liquidity needs. In the past, banks have been reluctant to borrow there because its higher interest rate implied that the bank was on shaky ground and that no one else would lend to it. But the Fed has now eliminated that barrier. It said in a press release on March 15:

The Federal Reserve encourages depository institutions to turn to the discount window to help meet demands for credit from households and businesses at this time. In support of this goal, the Board today announced that it will lower the primary credit rate by 150 basis points to 0.25% …. To further enhance the role of the discount window as a tool for banks in addressing potential funding pressures, the Board also today announced that depository institutions may borrow from the discount window for periods as long as 90 days, prepayable and renewable by the borrower on a daily basis.

Banks can get virtually free loans from the discount window that can be rolled over from day to day as necessary. The press release said that the Fed had also eliminated the reserve requirement – the requirement that banks retain reserves equal to 10% of their deposits – and that it is “encouraging banks to use their capital and liquidity buffers as they lend to households and businesses who are affected by the coronavirus.” It seems that banks no longer need to worry about having deposits sufficient to back their loans. They can just borrow the needed liquidity at 0.25%, “renewable on a daily basis.” They don’t need to worry about “liquidity mismatches,” where they have borrowed short to lend long and the depositors have suddenly come for their money, leaving them without the funds to cover their loans. The Fed now has their backs, providing “primary credit” at its discount window to all banks in good standing on very easy terms. The Fed’s website states:

Generally, there are no restrictions on borrowers’ use of primary credit….Notably, eligible depository institutions may obtain primary credit without exhausting or even seeking funds from alternative sources. Minimal administration of and restrictions on the use of primary credit makes it a reliable funding source.

What State and Local Governments Can Do: Form Their Own Banks

On the positive side, these new easy terms make it much easier for local governments to own and operate their own banks, on the stellar model of the century-old Bank of North Dakota. To fast-track the process, a state could buy a bank that was for sale locally, which would already have FDIC insurance and a master account with the central bank (something needed to conduct business with other banks and the Fed). The state could then move its existing revenues and those it gets from the CARES Act Relief Fund into the bank as deposits. Since there is no longer a deposit requirement, it need not worry if these revenues get withdrawn and spent. Any shortfall can be covered by borrowing at 0.25% from the Fed’s discount window. The bank would need to make prudent loans to keep its books in balance, but if its capital base gets depleted from a few non-performing loans, that too apparently need not be a problem, since the Fed is “encouraging banks to use their capital and liquidity buffers.” The buffers were there for an emergency, said the Fed, and this is that emergency.

To cover startup costs and capitalization, the state might be able to use a portion of its CARES Relief Fund allotment. Its budget before March would not have included a public bank, which could serve as a critical source of funding for local businesses crushed by the shutdown and passed over by the bailout. Among the examples given of allowable uses for the relief funds are such things as “expenditures related to the provision of grants to small businesses to reimburse the costs of business interruption caused by required closures.” Providing below-market loans to small businesses would fall in that general category.

By using some of its CARES Act funds to capitalize a bank, the local government can leverage the money by 10 to 1. One hundred million dollars in equity can capitalize $1 billion in loans. With the state bank’s own borrowing costs effectively at 0%, its operating costs will be very low. It can make below-market loans to creditworthy local borrowers while still turning a profit, which can be used either to build up the bank’s capital base for more loans or to supplement the state’s revenues. The bank can also lend to its own government agencies that are short of funds due to the mandatory shutdown. The salubrious effect will be to jumpstart the local economy by putting new money into it. People can be put back to work, local infrastructure can be restored and expanded, and the local tax base can be replenished.

The coronavirus pandemic has demonstrated not only that the US needs to free itself from dependence on foreign markets by rebuilding its manufacturing base but that state and local governments need to free themselves from dependence on the federal government. Some state economies are larger than those of entire countries. Gov. Gavin Newsom, whose state ranks as the world’s fifth largest economy, has called California a “nation-state.” A sovereign nation-state needs its own bank.

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