How Retired Justice David Souter Can Save the Supreme Court

The reputation of the United States Supreme Court is in trouble. Americans’ approval of the Court dropped fifteen points from 2009 to 2011, according to the Gallup Poll. Faith in the Supreme Court is dropping right along with confidence in government as a whole. Less than 2/3 of Americans say they trust the judicial branch, Gallup says.

And with good reason. Beginning with Bush v Gore in 2000, the court has issued a series of starkly partisan rulings in favor of conservative and corporate causes.

The decision of the high court that has most inspired outrage and derision in recent years is Citizens United. The Supreme Court rewrote the First Amendment to equate money spent on influencing elections and lobbying elected officials as a form of free speech under the First Amendment. Then the Court granted corporations the same First Amendment rights as humans. This twofer has unleashed a spree of legalized bribery by corporate America that will reach epic proportions in elections this year. It’s also ignited a grassroots firestorm. Where’s Our Money, and many other organizations, are backing a Constitutional Amendment to restore the primacy of humans to American Democracy.

As Justice John Paul Stevens pointed out in his blistering dissent to the majority’s opinion in Citizens United, the decision overturns a hundred years of  Supreme Court rulings upholding restrictions on corporate campaign spending. Such a sudden and profound reversal in what the Constitution supposedly means is an offense in itself. It flouts a core principle of the American judiciary, known as “stare decisis,” which requires judges to respect the judicial decisions of their predecessors. “Stare decisis” is the basis for public faith in the integrity and honesty of judges and courts.

Perhaps for that reason, the Citizens United decision seems to have inspired several former justices of the Supreme Court to speak out.

In late May, now retired Justice Stevens, in a speech at the University of Arkansas, condemned the majority’s opinion in Citizens United as internally inconsistent because it leads inexorably to the conclusion that “the identity of some speakers may provide a legally acceptable basis for restricting speech,” something that can’t be squared with the text of the First Amendment – even as interpreted by the Republican majority in that very case.

Stevens also defended President Obama for taking on the Citizens United decision in his State of the Union speech in 2010, right in front of several of the justices. Which may or may not have something to do with why Stevens was at the White House last week to receive the Medal of Freedom. Stevens took the opportunity to again criticize Citizens United.

Another retired justice has also weighed in, perhaps involuntarily. As Jeffrey Toobin reported in the New Yorker two weeks ago, Citizens United started out as relatively modest challenge to a federal campaign finance law. Supreme Court Chief Justice John Roberts and his conservative fellow travelers on the Court subsequently decided to use the case as an opportunity to rewrite the First Amendment in favor of big corporations. But Justice David Souter, a fiercely independent and revered jurist, objected to this tactic. According to Toobin, Souter, scheduled to retire in June, 2009, “wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Toobin describes Souter’s draft dissent as “an extraordinary, bridge-burning farewell to the Court.”

To avoid a published dissent that would have profoundly questioned the integrity of his Court, Chief Justice Roberts set the case for re-argument on June 29, 2009.  This highly unusual move kicked the decision over until the next court term. Toobin says that Roberts did this knowing that Souter would be gone by then.

The source for this explosive reporting could be Justice Stevens... or it could be retired Justice Souter himself.

Souter has donated his papers – including presumably his draft dissent in Citizens United – to the New Hampshire Historical Society. Unfortunately, he has barred any access to them for fifty years.

We can’t wait that long. It’s hard to estimate how much damage to American politics will be done between now and 2056. A nation dominated by corporations and mega-wealthy CEOs for the next half-century will look a lot worse than even the corrupt system in effect today.

And the erosion of trust in the integrity of the Supreme Court is something all Americans – not merely we lawyers devoted to justice – should be alarmed about. The judicial branch used to be the one branch of government where the average person could take on City Hall or a giant corporation and expect to be treated equally, free of political influences. Lose that option, and what’s left for the 99%?

Retired justices typically refrain from criticizing their former colleagues. A sense of decorum, and the sanctity of the judicial process, mandates a quiet retirement for most departed members of the Supreme Court. But the integrity of the institution itself is now in question. The rule of law is being supplanted by the political preferences of the appointees on the Court. It won’t be long before the monstrous swelling of money in politics spread by Citizens United directly infects the composition of the high court itself. Those who care about the independence of the judicial branch should do everything in their power to save the Supreme Court. This includes justices who have left the Court.

Like everything else in our democracy, exposure is the first step toward healing. Americans deserve to know what is going on behind those closed bronze doors, above which reads the promise, “Equal Justice Under Law.”

Justice Souter should permit the immediate release of his original draft dissent in Citizens United.

Citizens United / Harvey Column - 06/06/2012

Real Fraud, Faux Enforcement

The number one question people ask me when they find out I write about the financial crisis is: “How come nobody has gone to jail?”

I think I have found an explanation. His name is Robert Khuzami and he works as chief of the Securities and Exchange Commission’s enforcement division.

He is not the literal reason. SEC enforcement is civil, not criminal. So he’s not responsible for putting people in prison.

But focusing on Khuzami puts into sharp focus the conflicts at the heart of the government’s efforts to regulate and hold accountable the big banks.

Khuzami is a former federal prosecutor. But he came to the SEC from a high-profile position he took after his stint as a lawman: he served as general counsel to Deutsch Bank, one of the world’s largest investment banks, which had a massive business in the securitized mortgage loans, and was the recipient of nearly $12 billion in “backdoor bailout” federal funds funneled through AIG.

The Wall Street Journal reported that Khuzami was the first SEC enforcement chief to come directly from a big bank. He is one in a long line of Obama economic appointments with strong ties to the financial industry, who either worked for the banks directly or in their interests by favoring deregulation that was one of the major causes of the economic collapse.

Now Khuzami’s former employer, Deutsch Bank, is in hot water with the feds, who sued the bank earlier this month alleging that the “bank committed fraud and padded its pockets with undeserved income as it repeatedly lied so it could benefit from a government program that insured mortgages,” Business Week reported.

For the SEC, it’s all kosher because its stringent recusal policy assures that Khuzami won’t work on any Deutsche Bank cases.

Remember that Khuzami was not just a guy punching a clock. He was the bank’s general counsel, so he supervised legal issues for the firm.

So here was a former federal prosecutor who, in the midst of the go-go real estate boom, apparently thought it was OK for his bank to commit mortgage fraud. Zero Hedge dug up his financial disclosure statement, which reveals he was compensated nearly $4 million in salary and bonuses between 2006 and 2009, and may lose money if Deutsche Bank suffers as a result of the government’s lawsuit.

The president and the SEC, knowing what kind of mischief the too big to fail banks were engaged in during the boom, and how Khuzami had profited from it, thought it was a terrific idea to appoint somebody like him to go after his former cronies.

Khuzami’s tenure at SEC has been marred by accusations that he gave two Citibank executives preferential treatment in agreeing to drop charges against them after he met secretly with their lawyer. In January, the SEC’s inspector general said it was investigating the matter.

Is there no one but former bankers available to work in the financial sector? The president, with $1 billion to raise to fund his reelection effort, has been unwilling to dig into the fraud at the heart of the financial collapse. Until he does, the economic recovery will be built on quicksand.

 

AIG / Martin Column / President Barack Obama / Securities and Exchange Commission (SEC) / Too Big To Fail - 05/11/2011

Bailout Fuels Bitter Race to the Bottom

Maybe I just missed Harley Davidson’s thank you note to me and other taxpayers for bailing them out during the height of the financial crisis.

Perhaps the iconic motorcycle maker  didn’t think it would have to send a thank you note.

After all, they had every reason to think that the Federal Reserve’s emergency, low interest, $2.3 billion loans in the wake of the financial crisis would remain their little secret.

But the financial reform legislation spoiled all that, forcing the Fed to disclose details of  trillions of dollars worth of confidential loans they made, which amounted to a giant subsidy because of the low interest charged.

Beneficiaries included not just the country’s largest banks and foreign banks, but corporate giants such as General Electric, Verizon, Toyota and Harley Davidson.

It turns out that these companies borrow millions every day to pay their expenses. When the credit market froze up in the meltdown, Harley Davidson and the others turned to the Fed, which stepped in with loans at low rates and no questions asked.

Maybe the thank you note is still on Harley Davidson’s to-do list.

The company has been awfully busy, what with opening a new plant – in India, closing plants in this country and bullying its remaining U.S. workers to give back wages and benefits or face more plant closures.

It’s not that the company is incapable of showing gratitude. In 2009, a year in which the company suffered steep sales declines and more than 2,000 workers had been laid off, they paid their CEO $6.3 million – including a $780,000 bonus. Since January, 2009, the company has laid off more than a fifth of its work force, and closed two factories. By the end of next year, another 1,400 to 1,600 face layoffs.

In 2009, the average Harley Davidson worker who still had a job  was paid $32,000.

After threatening to close its York, Pa. plant and move production to Shelbyville, Ky., the company and the workers reached an agreement to keep the plant open – with 600 fewer employees and wage concessions. But not before the Pennsylvania governor, Ed Rendell, offered $15 million in tax incentives to the company.

All the cuts are paying off – at least for the company’s shareholders. In July, the company reported a $71 million profit, more than triple what it earned a year ago.

Maybe sending taxpayers thank you notes slipped their minds while company officials were busy hiring lobbyists to fight financial reform last year, to the tune of $115,000 – about $100,000 less than they spent the year before.

Harley Davidson is using the lift it got from its bailout subsidy to join the latest trend – companies make more profit with fewer workers, and wringing concessions from those that remain. As if the bailout wasn’t enough of a gift, the company squeezes even more from state taxpayers just for the privilege of keeping their plants open. For the company’s executives, the bailout fueled their escape from financial ruin and their race to the top. But workers and taxpayers are left standing on the sidelines.

Imagine if Harley Davidson had just split its $2.3 billion low-interest loans with its individual workers. Imagine if the taxpayers, who actually funded corporate America’s bailout, were  the recipients of anywhere near that kind of generosity. Imagine if we had a government with  as ferocious a commitment to shovel trillions into taxpayers and workers'  hands with no conditions of any kind.

We’ll never know what kind of creative energy, not to mention how much economic stimulus, would have been unleashed.

But that’s not the kind of bailout we got.

Harley Davidson, you're welcome.

Federal Reserve / Martin Column / Outrage - 12/11/2010

Quotable: Neil Barofsky

“There’s a reason there are Tea Partiers out there, and when you look at it, anger at the bailout is one of the first things they talk about...This Treasury Department and the previous Treasury Department bear some of the responsibility for not being straightforward with the American people."

Neil Barofsky

TARP inspector general

Bloomberg News

April 28

Uncategorized - 04/28/2010

Roll Back Interest Rates Now!

Washington has spent trillions of taxpayer dollars to bail out the Money Industry – not just the $700 billion cash life preserver, but also loans at near zero percent interest. Then the banks and credit card companies turned around and loaned us our own money at ten times the interest rate they paid, forcing us to pay through the nose coming and going.

And there’s no sign of relief. The New York Times reports that interest rates on mortgages, car loans and credit cards are reaching historical records. Credit card rates could climb another three points by the fall, according to one expert.

And that doesn’t include the endless creation of other techniques to fleece beleaguered consumers – ATM charges, minimum balance requirements, and my personal favorite, “billing fees.” That’s a fee you pay the company for the privilege of receiving a bill. To catch a glimpse of where this is all headed, just look at how the airlines are unbundling their services. Last week, Spirit Airlines announced that flyers will be required to pay up to $45 for carry on baggage.

Having abetted the financial collapse with decades of deregulatory coddling of Wall Street (PDF), Washington spared no expense to rescue its patrons. But regular Americans never got any relief.

In fact, now that Washington has declared “mission accomplished” on the economy, it's shutting down programs that were designed to benefit Wall Street but indirectly affected the rest of us. For example, last month the Federal Reserve stopped buying risky mortgage-based securities from banks – a two-year, $1.25 trillion bailout that relieved the banks of the risks of these speculation-driven investments. It was intended to encourage the firms to expand their lending. The end of this federal subsidy is one reason why experts are saying mortgage rates are going to go up.

On the very day in 2008 that the Bush Administration first proposed the $700 billion bailout, I urged that Congress slap a cap on the interest rates that recipients of any bailout would turn around and charge American consumers. And I’ve repeated that call since. But there was no quid pro quo for the public in the deal. Even in the so-called Credit Card Reform Act of 2009, Congress not only placed no cap on credit card rates, it gave the industry months in which to raise interest rates through the roof before the new rules kicked in.

Congress has gone back to work on “financial reform.” The purpose, supposedly, is to pass new laws that would prevent another financial collapse. There’s no reason why Congress can’t include some relief for Americans who are still suffering from the last debacle. My proposal: a rollback of credit card interest rates. Although there’s no reason to do it, lets be generous and let the banks and credit card companies earn three percentage points more from us than they have to pay when they borrow our money from the Federal Reserve. That would knock interest rates down to around 4%. Citibank, which is alive today only because it got $45 billion of taxpayer support, is charging upwards of 15% for its best credit card customers. Most of the other big card companies are doing the same.

Lowering interest rates would provide needed relief for tens of millions of American families, and would jumpstart the economy by stimulating more spending. No doubt some would say that we should not return to the era of “cheap money” when everybody was encouraged to spend more than they had by putting lifestyle improvements on plastic. I’m not advocating fiscal irresponsibility, but right now that argument sounds more than a little patronizing. True, some Americans got in over their heads, but the financial collapse itself was the fault of greed-driven Money Industry speculators, many of whom walked away with millions of dollars in pay and bonuses. So they’re all set; they got theirs – in fact, are still raking it in – but now average Americans are told they need to scale back at a time when many are struggling to put food on the table and might need to use a credit card to pay for a doctor’s visit? Why should Americans pay exorbitant rates to fatten the coffers of the firms that got us into this mess?

I say, roll ‘em back!

Harvey Column / Outrage / Uncategorized - 04/14/2010

Fed Up: Down With Bernanke

President Obama can’t credibly rail against Wall Street fat cats while fighting for their chief enabler.

Here’s all you need to know right now to decipher the confusing messages from the White House and the Democratic leadership:

Ignore the faux populist rhetoric and keep your eyes on the contentious U.S. Senate vote on confirmation of Ben Bernanke to a second term as chair of the Federal Reserve.

If Obama and Democrats want to show they now “get it” on why people are so angry over the mishandling of the bailout and the economy, they should dump Bernanke without delay.

But the White House and Democratic leadership, including senators Harry Reid and Chris Dodd, continue to strongly support Bernanke. Other Democratic senators, like Russ Feingold, Bernie Sanders and Barbara Boxer, as well as Republicans such as senators Richard Shelby and John McCain, oppose him.

The prime reason Bernanke deserves to be dumped is that he is not a reformer or strong regulator during a time of reform and increased regulation. The crisis hasn’t caused him to reconsider. Bernanke even opposes a key plank in President Obama’s reform proposal – the Consumer Financial Protection Agency.

He may nod reassuringly in the direction of Main Street but he’s an insider of the Wall Street elite whose prevailing philosophy is a combination of “What’s good for Wall Street is good for the U.S.A” and “There’s a sucker born every minute.”

Some observers credit Bernanke with keeping the country from slipping into another Great Depression.

The country managed to avoid an economic fiasco on the scale of the depression. But why should Bernanke get the credit?

Everything the Fed does is cloaked in a secrecy and doublespeak that mocks the president’s promise of the most transparent administration in history.

What we know for sure about the Fed’s response is that it shoveled cash and cheap credit in the direction of its favored Wall Street targets. Bernanke and the Fed have resisted disclosure of any facts and figures about what they did. When the details do emerge, they smell fishy.

For example, Reuters reported on emails that were obtained through subpoena by Rep. Darrell Issa, R-California, who is investigating the role of the Fed in the AIG bailout.

What Reuters found was that the Fed, under Bernanke’s direction, along with the SEC, wanted to protect the details of the AIG bailout with a level of secrecy usually reserved for matters of national security.  In the emails, Bernanke’s staff ridicules the clamor for more public disclosure about the bailout.

At issue are payments the Fed made to firms that carried insurance with AIG on bed bets those firms had made on investments. Those firms, called counterparties, included the likes of Goldman Sachs. The Fed paid off AIG's counterparties 100 cents on the dollar on their bad bets: extremely unusual with companies in such deep distress relying on the kindness of taxpayers not to take some losses.

Just what do Bernanke and the Fed have to hide? Whose interests are being protected?  We need to get to the bottom of those questions, not reward those keeping us from the answers to them.

Even if Bernanke did get credit for his role in the bailout, that wouldn’t be enough reason to confirm him for another term. He missed the housing bubble before the meltdown and has shown no indication he would recognize another bubble when it occurs. He has also misread the impact of the economic stimulus.

In addition, the Fed under Bernanke's watch failed at on one of its cores missions – reducing unemployment. Bernanke is more afraid of increasing inflation than he is of increasing unemployment. It’s time for the Fed to shed its cloak of secrecy and elitism and push for an economy that benefits everybody, not just Wall Street. That transformation will be challenging; Bernanke has shown he’s not the kind of leader for these times.

Obama’s treasury secretary, Tim Geithner, is trying out the old scare tactics, threatening that the markets will fall if Bernanke loses his job. But these are the same kinds of scare tactics that a previous administration used on Congress to forestall debate in its haste to push a poorly considered bailout scheme. We may have expected such tactics from the Bush Administration, but President Obama set higher standards for his administration. Now is the time for him to live up to them.

Contact the president and let him know what you think. Let your senator know too.

Federal Reserve / Martin Column / President Barack Obama - 01/25/2010