Wednesday, June 3, 2020

Post Trump Reforms - David Frum Weighs In

When I heard that David Frum had a new book coming out, Trumpocalypse:Restoring American Democracy, I was excited. I like Frum, he's very smart, regularly has original ideas, has a nice sense of humor, and he's interested in just what I am – Post-Trump Reform. So I preordered and read it right away. And sure enough, he has an acute analysis of Trumpism, an acute analysis of our current troubles, and some ideas that I hadn't thought of. Although I have to say, without being too competitive with a very smart guy who does this for a living and has done so for decades, I've had some ideas that he hasn't thought of. (Especially reforming the presidential power of the pardon.)

I agree with the bulk of Frum's analysis, which is not far from my own. We both agree that post-Trump reforms are likely, comparing the post-Trump environment to that of post-Watergate. He says: “Democracy is tested by its ability to deliver security, prosperity, and justice. Relatively modest reforms to the US system could improve all those outcomes. This is not to negate the value of bigger ideas: changes to the voting system, changes to the campaign-finance system. But those things are hard to do.”

While he has some specific suggestions for changes, in general, he hopes that Americans will come to their senses after Trump, and that the new victorious forces will seek reconciliation rather than revenge, except for the leaders who will deserve opprobrium and often appropriate punishment. For two good summaries of what he says, check the book reviews in the WaPo and the NYT.

Although he doesn't dwell on it, it's interesting to look at the reforms he does offer. Let me recall the six tools and the eight problems I identify in my basic post, keeping in mind that one of the tasks of reform will be to turn some of the former norms into new law.

The six tools:

  • Constitutional amendment
  • New Legislation
  • Presidential executive action
  • New interpretation or resuscitation of existing congressional power
  • Reassertion of norms or declaration of new norms
  • Efforts to affect public opinion

The eight problems:

Problem #1 – Attacks on oversight

Problem #2 – Attacks on fair electoral processes

Problem #3 – Abusive extension of presidential powers

Problem #4 – Department of Justice has come under complete control of President

Problem #5 – Corruption and conflicts of interest are rife

Problem #6 – Extensive inattention and incompetence in directing basic governmental functions

Problem #7 – A coarse, mendacious, thuggish, racist, cynical and dictatorial demeanor and tone

Problem #8 – Population of the United States widely ignorant of governmental processes and concepts

Here are Frum's observations and suggestions as they apply to these problems.

#1 – Attacks on oversight. Frum takes this on on page 37. “The Trump years demonstrated the very great extent to which presidential cooperation with the law is voluntary, especially if he or she retains a sufficient blocking vote in Congress.” But then he says there really isn't much we can do about it, that enforcing subpoenas is very difficult, and “even outright lying to Congress can prove exceptionally difficult to punish.” Then, “...there is no 'Congress' anymore; there are only the two parties in Congress.” And then, “The system that protects all of us has failed because the protectors of that system have failed to protect it for us. Democracy does not fly on autopilot.”

Frum doesn't offer a ready remedy in law, although it's clear he wishes Congress had more backbone and independence. As I detail in my post, I think the Congress could and should be more assertive. You can't leave oversight to norms, you need law and muscle.

#2 – The electoral process. Frum spends a great deal of attention on this. Although he doesn't mention it, the great Yale political scientist Robert Dahl predicted that the Connecticut Compromise (two senators per state and the electoral college, both favoring small states power) and the undemocratic elements of the constitution would lead increasingly to trouble. Frum gives statistics that show a gathering skew of these elements – particularly the increasing frequency of electing a president with a minority of votes - and how the skew plus filibuster rules plus gerrymandering ensure continued minority rule and governmental stasis. His fixes are:

  • Nuke the filibuster. The filibuster enables 16% of Americans (small states count as much as large states in the senate) to block action by 84%. Just vote it down with a Democratic majority.
  • Adopt a modern voting rights act. He includes issuing tamper-proof voter ID for free to all citizens, aqnd making fair and equal the location of voting installations, voting technology, and waiting times at the booths.
  • Deter gerrymandering. Here Frum is quite innovative. He says: assume the Democrats win preponderantly. Then offer Republicans two maps of voting districts, one the way the Republicans would draw one if they were in power, and the other one done fairly. He has no way then of ensuring that the next set done 10 years later would be fair if the Republicans win, and seems to count on the moral virtue of reciprocity. Ingenious, but I'd reject it. First pass a statute for independent boards to draw districts in all states, and then set the districts.
  • Statehood for the District of Columbia. Now, that's a surprise! He points out that this can be done easily by a simple majority of the House and Senate and a presidential signature. This would help redress the structural strength of the preponderance of small state Republicans. Pretty good move, I'd say. He said in a radio interview that he wouldn't do the same for Puerto Rico because of a substantial independence movement there, which I understand, but it seems to me a quick referendum in Puerto Rico could change that decision quickly. My hesitation would be more about the nature of a nation; language is important to carry culture, and Puerto Rico's language is Spanish.

#3 Abusive extension of presidential power. I think his hope here is that better people will be elected president. I have several suggestions here, including that the constitution be modified to require the presidential pardon to be cosigned by the Speaker of the House. That one would probably be dismissed by Frum as too long-term, but then again, if Trump really goes wild with it as expected, I would contend that it might not be so long-term at all. It could sweep the country like the wind.

#4 Department of Justice repair. Frum recognizes the importance of this problem and proposes that the assistant attorney general for the Criminal Division be changed from a political to a career job. He is deterred from seeking a fully nonpolitical criminal justice system at the federal level because of the bureaucratic constraint – career bureaucrats are not paid enough to attract the very best, and to change the pay structure of DOJ would wreck havoc with the rest of the bureaucracy.

I see his point. In fact, the point is applicable throughout the government, and the quality of government standards of work reflect it. It might be a good idea to start with DOJ, make it a hybrid of regular bureaucratic structure for regular staff, and make the top professional staff above supergrade (GS18) with the expectation that they would elect to stay for long periods of time, and make them dismissible by combined action of the White House and the congress. Then other governmental units could be looked at for a similar structure. But, this would take time. For the moment, some serious personnel housecleaning and restaffing would be necessary. Or, as I suggest in my post, find a completely new way to insulate the DOJ. This comes under the category of bringing norms into legislation.

#5 – Corruption. Frum suggests as I do that tax return transparency be mandated, with more extensive, explicit, and modern financial statements. He compares the bank mandate to “know your customer,” which seems like a valid comparison. We are on the same page here.

#6 Poor direction of governmental functions. Anne Applebaum calls this “a three-year assault on professionalism, loyalty, competence, and patriotism.” Frum sees this, too, of course, but his solution is find a better president, which is hard to argue with. My suggestions bear on increasing transparency and putting Congress on record as approving or disapproving current operations.

#7 Thuggish demeanor and tone. Frum certainly has an exquisite distaste for this vile aspect of Trump, but once again, he thinks Americans simply have to come to their senses. He's right, they do. My idea is that they need help to do so, which would be helped by extensive education in civics.

#8 Population ignorance of governmental processes and concepts. Frum doesn't deal with this. I think it requires a major effort of public education in the schools with three years of civics required.

I liked the book. Frum is smart and an excellent writer. His ideas on #2, the electoral process, are quite good. I would add those to our list of possible solutions to these important problems. Likewise on his suggestion on #4, how to fix DOJ. I think his ideas about how people should appreciate more what good government is like is right on, although I don't think he's got great ideas about how to get there. His analysis of the current situation is penetrating, better than he is on solutions. Read it to your profit.

Budd Shenkin

Friday, May 8, 2020

Post Trump Reforms -- Executive Summary

Planning For Post-Trump Reforms

Executive Summary

This paper examines what might be done to reestablish and solidify American liberal democracy and our system of checks and balances if Trump is defeated in November.

The tools for reform are:

  • Constitutional amendment
  • New Legislation
  • Presidential executive action
  • New interpretation or resuscitation of existing congressional power
  • Reassertion of norms or declaration of new norms
  • Efforts to affect public opinion

Problem #1 – Attacks on oversight
Possible Solutions – Strengthen laws for disclosure of materials and witness testimony, with specific instances and time limits, expedited review by SCOTUS in executive disputes, Congress declare intention to use Sergeant at Arms and imprisonment for witnesses who do not obey subpoena.

Problem #2 – Attacks on fair electoral processes
Possible solutions – New legislation detailing forbidden foreign interference acts with stronger penalties, rewards for whistle-blowers, penalties up to decertification of election. Federal standardization by constitutional amendment of state laws on gerrymandering, voter role purging, voting methods. Reinstate pre-clearance in Voting Rights Act, reform Federal Elections Commission. Increase sanctions for election violations by officials.

Problem #3 – Abusive extension of presidential powers
Possible solutions – Many measures are suggested, including constitutional amendment requiring Speaker of House co-signature for pardons; requiring IG firings be for cause; time limits for “active” status; legislation to protect judges from intimidation; specific legislation forbidding nepotism; putting teeth into the Hatch Act; and a constitutional amendment prescribing penalties for crimes against humanity and genocide. Invention is also called for to produce presidential sanctions north of censure but south of impeachment. This problem is so important that major efforts in public education and a high-level commission should be considered.

Problem #4 – Department of Justice has come under complete control of President
Possible solutions – DOJ's norm for independence and protection of the constitution should be regularized by law, perhaps constitutional amendment, making it quasi-independent. The 1973 decision that a President cannot be indicted should be reversed. A special commission would probably be warranted.

Problem #5 – Corruption and conflicts of interest are rife
Possible solutions – Very specific new laws are required, compelling submission of tax returns and financial statements, spelling out the details of forbidden emoluments, and ethics offices need to be strengthened and reorganized to represent both legislative and executive branches with much stronger investigative abilities.

Problem #6 – Extensive inattention and incompetence in directing basic governmental functions
Possible solutions – Transparency is the key. Reports need to be full from departments to congress, and response of congress needs to be public as well. Science based agencies might have senior semi-independent science boards to enforce that science not be compromised.

Problem #7 – A coarse, mendacious, thuggish, racist, cynical and dictatorial demeanor and tone
Possible solutions – Make the Trump experience an educational opportunity to highlight the difference of democracy and autocracy, and the characteristics of a demagogue, while continuing to explore publicly the basis for the obvious resentments harbored by Trump supporters.

Problem #8 – Population of the United States widely ignorant of governmental processes and concepts
Possible solutions – Epic educational efforts required, with mandatory civics classes for three years in middle and high school, funded by federal government.

The Realities of Reform

The closest precedent for the Trump administration is probably Watergate. The strength of the Watergate reforms was their thoughtful changes of procedures and laws that have been lasting, and the fact that the perpetrators, except for President Nixon, received penalties of justice that included prison sentences. By contrast, Iran-Contra perpetrators received pardons that short-circuited the course of justice, and those transgressions have receded into memory with few consequences. Pursuing reforms with vigor, and allowing justice to take its course unimpeded, is certainly indicated, and would be more important than the risk associated with a precedent for persecuting the party out of power. We would be lucky if the post-Trump reforms were as significant as the Watergate reforms.

The longer article is here.

Wednesday, May 6, 2020

Planning For Post-Trump Reforms

It is hard not to think that the Trump administration represents a major inflection point in American history. If he is reelected, will anything ever be the same, either the specific policies (health, environment, immigration, tax, etc,), or the ability of government to act competently (COVID 19 being only the latest and most blatant example), or our very mode of government (liberal democracy vs. populist authoritarianism)? On the other hand, if he should be rejected, what steps will be necessary and possible to take us back from the brink?

Should Trump be defeated for reelection, it's not clear what steps the new administration would take. It would depend on the situation – what's happening with COVID-19 and the economy, for one thing; how the Democratic coalition shakes out, for another; and how big the Democratic victory is, for a third. But no matter what the unknowable future holds, it will be a good idea to be ready for it with plans to achieve reform.

Certainly, many, many substantive policies will need to be reversed, revised, rethought, and reestablished, and many new ones instituted. But as hugely important as that will be, I want to concentrate instead on what might be done to reestablish and solidify American liberal democracy and our system of checks and balances. Trump checks every box to qualify as a would-be populist authoritarian, so it is no exaggeration to say that what he has done is a threat to our system. (see Levitsky and Ziblatt).

We know, of course, that the constitution is really an outline, and that the functioning of our government evolved with laws and norms adopted through the years, as our people and conditions and understanding have changed. So as singular as this time feels, it's one of a series – think Civil War, Depression, Watergate. Maybe this time the adjustment won't be as big as those were, but it will quite possibly be significant.

One more point before we launch into examination of the Trump innovations and possible responses. If reforms are to be effected, it's a good idea to remember what tools are in the toolbox. I think these are the major ones:
  • Constitutional amendment
  • New Legislation
  • Presidential executive action
  • New interpretation or resuscitation of existing congressional powers
  • Reassertion of norms or declaration of new norms
  • Efforts to affect public opinion

Trump Transgressions and Possible Solutions 
Problem: Trump's attacks on oversight, by congress, Inspectors General, ethics units, and other bodies, has been devastating. He has ignored requirements to supply documents, has blocked testimony from employees and former employees, has retaliated against those who do testify, has dangled pardons for those who are non-compliant with law enforcement, has sought to publicly identify whistleblowers, has fired officials not compliant with his demand for loyalty to the person of the President, and has claimed immunity not only from indictment, but even from investigation. Congress has been hamstrung in enforcing its rights, partially because of Republican connivance, but more decisively because disputes between congress and the White House have been tied up in lengthy court proceedings, showing graphically that justice delayed is justice denied. Just the most recent incidence of escaping oversight has been his dismissal of legislative oversight on the corona virus rescue package, both by declaring he has no intention of abiding by the law, and then dismissing monitors who might be independent and replacing them with loyalists.

Possible Solutions: There are already laws on the books for disclosure of materials and witness testimony that Trump is flagrantly disregarding and contesting. These laws should be made even stronger, with time limits given along with concrete examples of what materials and witnesses congress is empowered to command, including grand jury testimony. Should there be a dispute, there should be mandatory rapid review of disputes by the Supreme Court. Congress could also declare its intention to use its power to compel directly, specifically including using its Sergeant at Arms to jail subpoena resisters. 
Problem: Trump has notoriously attacked the electoral process itself by allowing and soliciting foreign interference. A longer standing problem not directly attributable to Trump has been actions in the states to suppress the Democratic vote, such as purging voter rolls, gerrymandering, and limiting time and place for voting.

Possible Solutions: Legislation should supply clarifying and precise language for the constitutional prohibition on foreign interference, and sanctions other than impeachment should be prescribed for violation, including fines and jail for perpetrators, rewards for whistle-blowers, and possibly even including decertification of the election. Stronger laws and probably a constitutional amendment are needed for the federal government to intercede on state-run elections and set standards. New evidence and arguments need to be brought to the Supreme Court to reinstate pre-clearance established by the Voting Rights Act. The Federal Elections Commission needs to be resuscitated, with steps taken for appointment of commissioners with long terms, high ethics, and a new process of appointment. Sanctions for election law violations by officials or those associated with officials need to be increased, including jail terms. 
Problem: Trump's concept of presidential powers is so extreme, even in the era of the Imperial Presidency, as to constitute a qualitative change that many have rightly judged to bring the powers of the office close to those of a king. Typical has been his misuse of the pardon; his use of demotions, transfers or dismissals of Inspectors General and those who testify against his will; transfer of monies illegally from one intended use to another (from defense to the wall); overuse of the “acting” status; tolerance of violations of the Hatch Act; not to mention blatant nepotism. These are just examples. 
Possible Solutions: Many individual acts of reform, bolstering the clear intent of the constitution, are possible. For instance, reforming the presidential pardon by requiring a cosignature from the Speaker of the House is an attractive option. Requiring that demotions, transfers, or dismissals for IG and other posts to be “for cause” would be protective, as well as giving fired IG's a private right of action to sue for reinstatement, which would force the President to show cause for the action in court. Putting a time limit on officials serving with “acting status” should be considered. Legislation on Presidential intimidation of judges and suborning defiance of judicial decisions should provide a basis for indictment. Forbidding federal employment of relatives of the President and high officials unless they were in place beforehand could be enacted. The Hatch Act should be strengthened with significant penalties prescribed. Adding prohibition of crimes against humanity (children in cages, defying international law on asylum) and genocide, and making that a basis for both impeachment and indictment in the United States and in the International Court of Justice, would be an admirable constitutional amendment.

More generally, it seems that we need to invent penalties for presidential infractions north of censure but south of impeachment in an era when “name and shame” cannot deter the shameless. An example might be that, should a president be found culpable of a significant deviation from law, but one that did not reach to the level of meriting removal from office, that a monitor be appointed who would have real time access to the actions in question and real time ability to transmit this information to congress, which would then have the ability to suspend the President's authority in that field. This would be an extreme change from the present, and might not work out, but something has to be invented to provide something more forceful than shaming and less extreme than impeachment. We don't know now what that something might be. 
This issue of abuse of power, however, is one where extensive individual repairs and bolsters might not be enough. Beyond individual fixes lies the more general issue of the gestalt of the Presidency and the gestalt of the interactions of the branches of government. Maybe a commission is needed to highlight how things should work, to make the norms very clear. A high-level commission with a report to the nation, then endorsement by both houses of congress and the President, might have a lasting effect. Commentaries on basic documents and prescriptions for action based on those documents has precedent in many religions.

Problem: The Department of Justice has become a political arm of the President to excess. Especially since the appointment of William Barr, it has misrepresented the Mueller Report and discredited its findings, it has dismissed long time high career employees for fabricated reasons, and it has opposed and ignored House of Representatives notices and requests in a most political way. It has acted increasingly and startlingly as a personal arm of the President, and indeed both Trump and Barr have expressed sentiments indicating that that is the way it should be.

Possible solutions: Although it is a relatively modern innovation for DOJ to be regarded as non-political, the new post-Watergate norm of DOJ's working for the constitution and the people rather than the President should be institutionalized, maybe even by establishing it as a quasi-independent body. Legislation rejecting the 1973 DOJ finding that the sitting President cannot be indicted would be an essential step. This matter of the norms of DOJ attitudes and actions is so important that it, too, could well be the subject of a special commission, which would then produce a document that would guide actions in the future, although not by specific rules.

Problem: Out and out conflicts of interest and corruption are rife in the Trump administration, many of them abetted by nepotism. Financial documents such as tax returns have not been submitted as is customary, financial statements have been so lax as to have necessitated innumerable filing of additions (with no penalties for the “incompleteness”), relationships with foreign entities with extensive prior and current relationships with the President and his family and other officials have been extensive and secret. Presidential properties have benefited from US government payments, and staying at Trump properties has apparently been de rigueur for those who would do business with the government. Ethics violations have been rife, and ethics officials have been summarily replaced by loyalists. The Department of Justice has been inactive in this sphere. 
Possible Solutions: Tax returns and detailed financial statements need to be required on an ongoing basis of all top officials, and then be available publicly. High public officials in all branches should be forbidden from trading in individual stocks. Other activities need to be specifically delineated as prohibited, with illustrative examples, many of which would be available from this administration. Stronger investigative efforts independent of the President need to be institutionalized. Ethics officials are now spread out among agencies, many can be dismissed at the President’s pleasure, and the President is insulated by having a White House ethics operation that, if staffed by loyalists, insulates the President from true investigation. Legislation might instead establish two separate Commissions on Ethics, one in the Department of Justice and the other in Congress, with a strong liaison between them, and with connections to the IG’s and independent means of enforcement. Independence and transparency would be key.

No doubt investigations will find illegal activities in the Trump administration. But just as important are those activities that are legal but shouldn’t be. This would be a perfect time to attack this issue head-on, and to pass very specific laws making illegal specific acts and practices, and prescribing financial and incarceration penalties. It would seem that many younger members of the House might be perfect members of a committee with this mission.

Problem: Beyond disagreeing with prior objectives of governmental officials, the Trump administration has often simply declined to do its duty in operating them (see The Fifth Risk by Michael Lewis). The simple ability and will to operate the functions of government has been deficient as never before.

Possible solutions: Transparency might help with this: all cabinet departments report their activities to Congress each year. Congress might be compelled to issue a responding document where they must go on the record as accepting some and rejecting other contentions, and the documents would be public property. Furthermore, the departments dealing with science might be required to have professional panels of senior respected officials who would sit in scientific judgement on the department and be able to accept information from internal personal on an anonymous basis, with public disclosure of their findings, and powers of inquiry. 
Problem: The coarse demeanor, unbridled mendacity, elevation of thuggish behavior, racism and support of white supremacy, and preference for dictators as friends and preferred allies is informal, not illegal, but very destructive. The moral ideals of a nation are important, even when we know that hypocrisy is a frequent companion. Cynicism is the enemy of good government and a progressive future. The problem here is that the Trump base often thrills to this rebellious quality of Trump, and many of them feel that his posturing embodies many of their own resentments of their life’s frustrations.

Possible solution: It would be a mistake to bless the election and move on without examining this phenomenon. It should be taken as a learning and educational opportunity, rather than simply a chance to condemn and boast that “we won.” Finding a way to examine and meet the grievances directly, finding a way to respond to those who represent these issues in a less-threatening and more decorous way, and strengthening laws that prevent intimidating and hateful behaviors and supporting them with fines and arrests, would be an admirable pincer movement. 

Problem: Large parts of the public are either ignorant of the basics of civics education, or are inattentive. Democracy requires that voters have information on which to base their votes, and that they be educated to know how to judge this information. They need to know what a President is required to do and how he or she might be prepared to do that, and they need to know how our liberal democracy works in theory and practice. They need to know how a democracy differs from an autocracy, and the definition of a demagogue. 
Possible solution: In a country where perhaps a majority of citizens cannot name the three branches of government, and where civics education has drastically declined, nothing short of a major effort at civics education is necessary. This effort might include a requirement of civics and American history classes for three years in middle school and high school, with the Department of Education leading the efforts to produce the necessary materials and supplying generous funding, national awards for excellence, and special teacher stipends.. There are a myriad of programs that can be imagined. The project needs to be made a high priority and acted upon.

The Realities of Reform

These are just ideas of what might be the elements of a Post-Trump reform. Who knows what will be possible and which items will receive the highest priority when conditions change? Reforms will be dependent on the will of the people as expressed in the November election, and events as yet unforeseen.

It’s always a good idea to visit “the last time this happened.” The most obvious analogy to our present situation might be Watergate. There are obvious similarities in both the flouting of laws and norms, as well as Presidents with deeply flawed and aggressive personalities. In both cases, the Republican party stuck with their chief, until the endgame in Watergate, and we don’t know the endgame yet with Trump. 
Trump’s deviations from a “normal” President, however, are more extreme than with Nixon, both in the extent of the official violations and the extremity of the personal qualities. Whereas Nixon was highly capable and experienced, and accepted the game as it was generally played, Trump has no basic abilities beyond that of a showman, and is acquisitive to the extreme, as Nixon was not.

In addition, the times are different. In Nixon's time the United States was much stronger internationally than now, still rising in power and wealth, and the palpable sense of decline of preeminence was not present. In Nixon's time children could still expect to do better than their parents as a matter of course. In Nixon's time the Republican party was more moderate, dark money was not so much of a factor then, and Nixon's world didn't have a rise of authoritarians who celebrate their form of government as superior to the stodgy old liberal democracy of the United States and the West. And in Nixon's time, white people were still a strong majority in virtually all parts of the country.

Despite these differences, Watergate is probably the most useful guide our thinking. The effort to reform after Watergate was profound.
(The Watergate reforms) sought to restore faith in the U.S. political system by combating the corrupting influence of money in politics; promoting ethics and transparency in government; protecting people against abuses of government power; and limiting certain extraordinary exercises of presidential authority.” Berger

In addition to the strength of these reforms – which included the establishment of the IG system, by the way – the imprisonment of so many of the Nixon officials was shocking and impressive, even though the course of justice for Nixon personally was diverted by President Ford's pardon. Nothing says “wrong” like jail. The image of Watergate still reverberates, the headlines are still striking, the stench is still in the air. And the reforms, by and large, have stuck.

A cautionary object lesson in the opposite might be how Iran-Contra was resolved when George H. W. Bush accepted the suggestion of Attorney General William Barr and preemptively pardoned the conspirators, thus also exculpating himself. The shame and the lesson were lost as an example to the public, and the illegal usurpation was not even mentioned when President Bush died. The difference in how Watergate and Iran-Contra were handled and what their impact was, is striking and informative.

Will there be active reforms that contradict the trends of the Trump era? Will there be a V-bottom, and will liberal democracy rebound even more robustly? Will active investigations and pursuit of miscreants of the Trump era resemble those of Watergate, if not for prison sentences, then at least for claw-backs of ill-gotten gains? While some say we don’t want to be a Banana Republic where political opposition is jailed, immunity for miscreants would be a worse message. Given the extent of the Trump depredations, this is likely to be a full employment program for investigators and lawyers, but it is hard to think of a just alternative to intense discovery, reparative actions, and very active reform.
Or, possibly, will a new coalition in power decide that they like the system Trump has instituted, and find the new executive freedom to act congenial? In that case they might concentrate on reversing policies, instituting new ones, and going easy on reverting to checks and balances. It seems unlikely, but it's possible.
They say that history doesn’t repeat itself, but it rhymes. Or, as Marx said about the 18th Brumaire of Louis Bonaparte in perhaps his most cited quotation: “History repeats itself, the first time as tragedy, the second time as farce.” Farce may be funny and ironic, but it can also be very, very sad.

We shall see.

Budd Shenkin

With the help, corrections, and suggestions of David Levine, who is not responsible for deficiencies, of course.

Monday, May 4, 2020

Do You Need To Pay For Health Care To Value It?

I had an exchange of opinions (respectful, I think) on Twitter with a Georgia-based consultant who says he has run many practices. He's very pro High Deductible Health Plans, and talks about how patients only value what they pay for, along with advancing the old "skin in the game" argument.

It then struck me -- so many of my patients were Medicaid and didn't have "skin in the game."  Yet I think we had an excellent relationship and I have no doubt about their appreciation.

It seems to me that it's the relationship, and the patient's understanding that you care, and that you are trying, and that you have respect for them, that is the crucial element.  The patient's paying is like another way of attacking it, that substitutes for that relationship.  Because if you pay for it, there's a cognitive incentive for you to value something, because you figure if I paid for it I had better value it or it's wasted money.

So looked at that way, the skin in the game argument is taking advantage of the cognitive error of sunk costs (I think that's what it's called) in lieu of establishing a caring relationship.

I don't know, maybe gets at part of the truth some of the time.  Certainly doesn't work for everyone and every relationship.

Budd Shenkin

Saturday, April 18, 2020

More Disrespect For Primary Care Docs - NEJM Article On PSA Screening

I don't get no respect!

Thanks for that mantra, Rodney Dangerfield. Primary care doctors, regarded as the heart of the health care system by the enlightened, still get no respect from their specialist brethren, and the New England Journal of Medicine editors allow it to continue.

Screening for prostate cancer with a PSA test is a difficult and contentious issue. Opponents have several issues, but I have always gotten the test personally, on the recommendation of my urologist, because we think we can handle the results intelligently, not leaping blindly to unwarranted biopsy and other measures. In short, my urologist Joel is smart, I am smart and a doctor, and we can handle it. Most of the objections center around poor decisions made by those less informed, so we just go ahead and get the test, which has always had a reassuring result. Simple reassurance has its own value.

The NEJM article, Reconsidering Prostate Cancer Mortality -- The Future of PSA Screening, considers what doctors should do if they insist on getting the PSA test. It is here that they stumble into insult. Here's my letter I sent in the NEJM:

The authors of this well-reasoned article perhaps inadvertently impugn the abilities of primary care physicians when they patronize them in searching for an “approach … (that) is simple and easy to remember,” suggesting that they refer the patient when the PSA gets to 10. Specialists are more capable, they imply, so they can pay attention to the rate of increase of the PSA, the age of the patient, and perhaps even order a free PSA and an MRI.

How insulting to generalists! The authors should be reminded that all primary care is not (yet) dispensed by unsupervised PA's at CVS.

It looks to me as though advocates for primary care still have a long way to go.

Budd Shenkin

Thursday, April 16, 2020

Reforming the Presidential Pardon - a favorable review

Readers might remember the suggestion (here) that we pass an amendment to the constitution requiring that presidential pardons be cosigned by the Speaker of the House. This reviewer, happily, calls this solution “elegant.” He is so kind!

David Levine and Budd Shenkin on Presidential Pardons

Published on: April 16, 2020 Author: Zach Price
The President’s pardon power has received renewed attention and controversy during the Trump Administration. Those interested in a useful survey of controversial presidential pardons from this administration and others, as well as an interesting proposal for reform, should check out a new article in the Hastings Constitutional Law Quarterly, “Should the Power of Presidential Pardon Be Revised?,” by my colleague Professor David Levine and co-author Dr. Budd Shenkin.
Professor Levine and Dr. Shenkin argue that the pardon power has always carried risks of abuse, as evidenced by many presidential pardons across American history that served to protect presidents and their friends or associates from embarrassing investigations. Salient examples include Ulysses Grant’s pardoning of colleagues involved in the “Whiskey Ring” scandal, Gerald Ford’s pardoning of Richard Nixon, and President George H.W. Bush’s pardoning of some Iran-Contra conspirators.
Professor Levine and Dr. Shenkin argue that risks of abuse are getting worse. They point to President Trump’s various controversial pardons, including those of Arizona Sherriff Joseph “Joe” Arpaio, right-wing pundit Dinesh D’Souza, and author Conrad Black. They also note his promises to pardon others, including federal employees who break laws to build Trump’s border wall, military officers who violate the laws of war, and even Trump himself if necessary to prevent prosecution for official acts.
After considering and rejecting various alternative solutions, Professor Levine and Dr. Shenkin propose an elegant remedy: The Constitution should be amended to require the Speaker of the House’s assent to any presidential pardon. This solution, they argue, would introduce a valuable check on abusive pardons without bogging the pardon process down in bureaucratic rigmarole or imposing conditions on pardons that may prove difficult to enforce. They point out that similar constraints have worked well in some state constitutions.
The proposal is well worth considering. At present, the pardon power gives the president an absolute prerogative that sits uneasily with modern notions of bureaucratic regularity and the rule of law. Pardons are a lightning strike, dispensed from the ruler as a matter of grace with no burden of justification or requirement of consistency across other cases.
Pardons also implicate a pervasive problem of constitutional law and separation of powers: Who will guard the guardians? The pardon places a check on Congress’s power to enact criminal laws, but the pardon power itself is then unchecked (except perhaps by other retaliatory actions on Congress’s part). Imposing a further check, however, risks abuse on the part of the one doing the checking, which could warrant still further checks—and on ad infinitum, with paralyzing effects on governance.
Professor Levine and Dr. Shenkin make a strong case that one further check on the pardon power is warranted in this moment, when political constraints on self-serving presidential pardons seem to have weakened. They recognize that the check they propose could create risks of gamesmanship and hold-ups: a hostile speaker might reject pardons for political reasons or bargain with the president for other pardons in exchange. Professor Levine and Dr. Shenkin make the case that even with these costs the new equilibrium would be preferable to the current one. Anyone interested in the health of the nation should consider their points carefully.

Saturday, April 11, 2020

COVID-19 Impels Paradigm Shift In Public Health And Medicine

We all know that a crisis is a terrible thing to waste.  COVID-19 is certainly a major crisis. There will be changes all over the world in medicine, public health, government, financing, social relations, and certainly art. What will those changes be?
Capitalism is a very potent tool to use in conceptualizing what changes are afoot. Thinking like an investor is a great way to envision the future. Nothing like thinking "how could I make money off this” to impel serious effort.
Health and medicine is my field, and it's a little known fact that, besides being a pediatrician, I am also a board certified specialist in preventive medicine, and I am an investor of long standing. So let me just write a short note using that background to opine on changes I see right now stemming from the pandemic.
I think there could well be several paradigm shifts in health care. Think of it first in the very short term. Think of hospitals needing to open up to do “elective” surgery and other traditional services. What do they need? They need to ensure that the operative areas are safe for patients and staff. How to do that? Real time testing - everyone coming in is certified free of virus at that very time. It may mean a nasal swab every day - the Abbott testing system might work for this purpose. Other tests will be developed. As an investor, I would really like to know who's close on this - a small company with a dynamite real time test would be very valuable. 
Now think a little bigger. Won't every company want to do the same thing? Think about going into the stadium and going through the security line. That's the way to think of it, imho. Testing for germs will be more important than testing for knives and guns. Who's going to supply the equipment for the security line testing? That's the company I want to own.
Then let's think about schools as well. Schools are the traditional incubators for winter viruses – want to know who's going to get sick during the winter? Figure out who has kids in school. It seems to me that, when flu season comes up, the winter time, even when COVID-19 has a vaccine and has receded from being a pandemic, we're still going to have the usual culprits circulating, like flu, and maybe new ones. There will be enhanced utilization of flu vaccine, no doubt. But early detection will always be key.

How are we going to detect illness in order to isolate it? Security lines will get old fast. Instead, new technologies will have to emerge – in fact, they're already emerging – that sense signs of illness. Think about wearing a watch that tells you that you are about to get sick, you need to be tested to see what it is. Eric Topol is always all over this kind of thing: 

In medical care, telehealth will now undoubtedly take off. Outpatient health care providers were already starting to employ telehealth, and now they are all in. I think that very soon more than 50% of doctor visits will be virtual. See here for what Israel is doing:

Telehealth needs all these sensing devices and all the communications. It will be a complete paradigm shift. I want to own those communication and sensing device companies!

Yours for profit in making the world a safer and better place,

Budd Shenkin

Monday, April 6, 2020

Maui and COVID-19

Maui is an island. Maui has control of its borders that would be the envy of many communities on the mainland. Maui is also apparently not overrun with COVID-19. On the other hand, Maui is far from self-sufficient; Maui's economy is tourist-dependent.

What Maui needs is a vision and a plan.

My vision is this: Maui comes to be seen as a haven of health. All we need to do is test, test for current infection and test for past infection. Test, test, test. If we can test, we can control the spread of the virus. We can make Maui CPVID-19 free. Then we can advertise to potential visitors – come to paradise where the days are long and warm, and the island is COVID-19 free.

How can we get to that vision?

First, we need an epidemiologist in charge, someone who really knows what he or she is doing, someone who has experience like that gained by having been a member of the Epidemic Intelligence Service of the CDC, someone who has chased disease, someone who has the executive experience to command a team. Get that person to Maui, give them a job, and give them a $5-10 million budget to get supplies and hire staff.

Then, get the tests, lots of them.

Then, test widely on Maui to find those with the disease, isolate them, find their contacts and test them, and isolate those who are positive. Wipe out the disease.

Then set up testing at the airport. Make it mandatory that everyone who comes on the island gets tested. That way, we can ensure that the island stays COVID-19 free. There will still have to be widespread testing to make sure the disease doesn’t sneak in, but with this regimen, guests can feel relatively safe – probably safer than they would be at home.

I don't know what the time line would be, but I would bet this would be achievable by late fall or certainly winter – peak tourist season.

That's my vision, and I'm sticking with it.

Budd Shenkin

Thursday, April 2, 2020

Sweden Vs. USA on COVID-19

From my friend Annika in Stockholm comes this article. Then there is my response, which is really a rebuttal, I guess.

What Sweden Has Done Right on Coronavirus

– March 31, 2020

Until last week, only three European countries had still not closed their schools as a result of the coronavirus outbreak. Then followed Britain’s sharp reverse-course and lockdown policy where Prime Minister Boris Johnson finally gave in to pressure, leaving only Iceland and Sweden with a strongly diverging policy.
Iceland, a miniature country that could probably test its entire population in an afternoon should it wish to do so, is a scarcely populated country with fewer inhabitants than Staten Island such that its experience (2 deaths) might not have that much to tell the rest of the world.
On the other hand Sweden might, at about twice the size of Minnesota with roughly twice the number of the North Star State’s inhabitants.
Let me share some observations of the remarkable impact this crisis has had on Swedish society.
All here is definitely not well. Sweden, like most other countries, experiences its fair share of this uncontrolled pandemic. As of Monday night, over 4,000 cases had been confirmed, with the death toll approaching 150 and another 300 in intensive care. In per-capita terms, that’s about the same number of confirmed cases that the CDC reports for the U.S., but with over twice as many dead (I refer anyone interested in the weeds of the statistics to Our World in Data).
Swedish hospitals, businesses and households are facing the same ills everyone else is facing. What’s so striking is that this Scandinavian country seems to deal with its burden with more serenity and pragmatism than elsewhere – no panic or mania; just Work The Problem, People.
Instead of locking people in their homes or spreading fear and mania of various flavors, politicians – and more so scientists and civil servants in charge – have been surprisingly sensible. From officials at press conferences to scientists on prime-time TV, the prevailing notion has not been to shove official rules down a subversive population’s throat or boast about all the marvelous new things My Party did, but to provide the populace with enough information. To present the risks we are facing individually and collectively, and let normal people weigh their own risks and benefits, guided by common sense.
Contrary to the U.S., where President Trump and Governor Cuomo and countless other political figures compete for the attention of their constituents and populace and underlings, the Swedish experience has been one of decentralized decision-makers and arms-length officials calling the shots. So far, there has been very little politicking – very few special interests seem to have pushed their Very Special Interests during these critical times. Instead, politicians have by and large taken a step back and trusted that the responsible agencies – the epidemiologists, the universities, the civil servants, the doctors and nurses and hospital workers who put their lives on the line – have the know-how to do their job and the common sense to act properly.
Folkhälsomyndigheten, its closest American equivalent being the CDC, has simply worked the problem. Their chief epidemiologist, Anders Tegnell, has become a well-recognized face as he’s conducting interviews, press briefings, and organizing what is probably an impressive team for testing and monitoring the best-available data.
Swedish television, both publicly and privately run channels, have professors and WHO scientists every evening answering viewers’ questions, matter-of-factly explaining the latest news and admitting ignorance and uncertainty when appropriate. No presidents bragging or secretaries meddling with business they are wholly unqualified for. The prime minister did address the nation, something Swedish prime ministers almost never do, with a short non-partisan speech about getting through this together.
Dr. Emma Frans of Karolinska, Sweden’s world class medical school, has probably been on TV every night for two weeks straight. Agnes Wold, another media-famed professor the public has taken to heart, shares her advice in most major news outlets. In contrast to Trevor Noah of The Daily Show who now smugly runs his show isolated in his apartment, Skavlan, the most viewed talk show in the Nordics, runs on Friday evenings as usual – but in order to mitigate disease spread it no longer has a studio audience. When Wold visited last week, she didn’t just explain the scientific state of the virus to millions of viewers, but she practiced what she preached by demonstrably sitting about four meters away from her fellow talk show guests. Keep distance, don’t panic.
Many Q&A sessions with experts have included mundane doubts by concerned citizens about whether they should still hold family dinners, get married or visit their elders. In contrast to politicians’ one-size-fits-all restrictions for the number of people allowed to meet in public – Germany and Australia, 2 people; America, 10 people; Britain, no people – Swedish policy-makers and scientists made sure that the public understood the seriousness of the situation, but properly left such decisions to those best able to make them: people themselves.
American politicians of all persuasions have dabbled in things they know very little about: making promises their officials had to correct, botching the testing procedures by pulling regulatory rank to stop workable tests. While Swedish politicians have enacted fiscal and monetary stimulus packages that have been far from perfect (too little, too late, and too much of much too expensive debt packages), they have mostly done the country a service by not interfering.
The few times they have, they have done so prudently. A few weeks ago – lifetimes in this corona era – the government prohibited public events with more than 500 people, clearly communicated not as a fixed limit below which everything was safe, but as a guideline for safety. When that limit was reduced to 50 this weekend – much higher and much later than other countries – it was again presented as a rough limit, exempting private functions like corporate events and commercial activity, leaving final decisions in the hands of individuals.
When the government on the advice of epidemiologists finally closed universities and high schools – primary schools remain open – the relevant minister, pragmatically and matter-of-factly, answered journalists’ questions about what took them so long: the scientists say it probably doesn’t make a difference – and the youngsters are likely to hang about in coffee shops or at each other’s houses anyway, completely thwarting the purpose of the policy.
No political grandstanding, no “I’m the Big Boss,” no typically American swankiness. Just plain old pragmatic, Nordic calmness, letting the system do the work it was set up to do.
When instructed by the relevant public agency, the military built an emergency hospital outside of Stockholm. When hospitals called out for more personnel, regional politicians and the hospitals they are in charge of temporarily waived entry requirements for soon-to-be nurses and doctors, boosting the hospitals’ workforce. Where needed, hospitals have hired back recently-retired health care professionals. And behind the scenes, thousands upon thousands of other health care workers, food delivery services and civil servants do their job splendidly, partly because politicians and regulators are not interfering with their work. The government has made additional fiscal resources available and quickly covered sick pay for vast sways of the population – very easy when your government-debt-to-GDP ratio is 35% – but has not made an arduous public spectacle out of its legislative procedure as did American representatives.
The remarkable behavior and resilience of Swedish society is not limited to the public sector.
Like across the U.S., Swedish vodka companies started making hand sanitizers for distribution to hospitals and the general public. Scania, a major producer of trucks now unable to source components from China, have placed their logistics and distribution teams at the disposal of Getinge, a medtech company churning out ventilators for hospitals all over the world. Toilet paper factories, of which there are plenty in a major exporter of paper products like Sweden, have ensured that toilet paper shortages have been few and far between.
Indeed, Essity, the world’s second largest supplier of toilet paper has ramped up their production and added mask production to assist hospitals. In an example that well illustrates the Work The Problem mentality, Essity’s media relations manager, Henrik Sjöström, tweeted a picture of the company’s delivery trucks and mentioned the 3 million toilet paper rolls one factory churns out every day: “Here at the factory,” he wrote, “we call this special day ‘Tuesday.’” Just keep on working, guys.
Supermarkets (with only very occasional shortages of a handful of items) opened their doors an hour earlier exclusively for people above 70, such that they too can get groceries under comparatively safe circumstances. The demand for food delivery services has absolutely exploded. When the news broke a couple of days ago that Skansen, the iconic zoo outside of Stockholm, was close to bankruptcy for a lack of visitors, thousands of people bought annual passes and stuffed animals from their online shop – and even Venmo-ed their gifts. The manager had expected the government to come to its aid but, as usual, the private sector was there faster.
Like everywhere else, fewer people are seen on the streets of Sweden’s major cities – partly as a result of high school students taking online classes and companies (on public advice) asking their employees to work remotely. Concerned with the survival of their local pubs, cafés and small businesses, healthy Swedes without symptoms have ventured out to support their regulars, maintaining safe distance from others: balancing the need for infectious disease control with economic damage control.
To a certain extent different rules apply: an authoritarian Chinese state can clamp down on its citizens, going to extremities to quarantine infected people; a low-density country is by geography alone much less vulnerable to a disease that spreads by proximity. But Sweden isn’t an authoritarian state that treats its citizens as unruly children. Neither is it a remote and sparsely populated place: its population density is about two-thirds that of the U.S., mirroring America in that most of its population is concentrated in urban areas. Stockholm has the population density of Chicago or Miami and is only slightly less dense than Boston.
Not exactly holed up in their homes, Swedes are out and about, shopping and exercising almost as if nothing was going on – though not entirely so: there’s a new unwritten rule among runners and dog-walkers in my local park. Whenever we pass each other, we keep a good 3-meter distance; people literally walk in wide circles around strangers. Shaking hands is out of the question, and people are comfortably maintaining distance even between neighbors and acquaintances.
Nobody policed this behavior; no politician passed a law or issued a command for it to emerge. Sensible, well-informed, and respectful citizens did so. Nobody drew a line in supermarkets such that people could keep their distance – our natural sense of personal space did that, amplified by a commonly-felt urge to limit risks, but without shutting down commerce or society in the process.
There’s no mayhem, but plenty of fear and anxiety. We don’t know where this is going. This isn’t over, and this isn’t a joke.
The major difference between Sweden and many other places is the trust Swedes place in their institutions, the public agencies tasked specifically with events like this and private enterprise that produce and distribute the goods we need – the employers, factories, and brands that work to see a future beyond corona.
The response of Swedish society has been pretty remarkable: do your part. Help your loved ones and your local business owners. Trust those who know what they’re doing. Be mindful of others – and don’t sacrifice economic well-being at the altar of extreme disease control. Work The Problem, people.

Joakim Book

Joakim Book is a writer, researcher and editor on all things money, finance and financial history. He holds a masters degree from the University of Oxford and has been a visiting scholar at the American Institute for Economic Research in 2018 and 2019. His writings have been featured on RealClearMarkets, ZeroHedge, FT Alphaville, WallStreetWindow and Capitalism Magazine, and he is a frequent writer at Notes On Liberty. His works can be found at and on the blog Life of an Econ Student;

On Thursday, April 2, 2020, Budd Shenkin <> wrote:
Thanks so much for this, Annika. This guy is very opinionated! As you know, I'm predisposed to support Sweden in most everything. But I have to say that this guy has painted the US with a broad brush. The US has done poorly, but I think the weakness is pretty easily pinned on Trump and Trumpists. If Obama, or Bush, or maybe anyone else had been in charge, the difference would have been immense. We can't forget that two years ago Trump disbanded the pandemic response team that Obama had constructed, saying he didn't like the idea of people sitting around when there was no need. The primary contagion is Trump.
It's also true that the American health bureaucracy acted, and continues to act, poorly. I'm not quite sure why this is, because the CDC used to be a great institution that led the world. Organizations decline for many reasons, and I'm not sure why this happened to the CDC. Also the FDA has been exceptionally bureaucratic, but I think you can pin that on the lack of that leadership group that Obama had assembled. Trump is a destroyer, and he has done a very destructive job.
As to political posturing, there are many governors in the US who have done exemplary jobs, mostly Democrats but also some Republicans. Cuomo of New York has become a god.  The contrast to Trump could not be more stark.  I imagine that people abroad don't have the full picture of how bad the Republican party has been throughout the US. I know I must sound very partisan, but the Republican party is the party of destruction and stupidity, bowing down to Trump, and destructive and stupid even before Trump got there.  I don't think you can judge a country comparatively without realizing that.
I doubt the efficacy of the author's reliance on the natural good sense of the people.  People are not naturally all sensible, and you need lots of direction when it comes to public health and habits.  People are practicing social distance, but that's because most people are scared shitless about this vicious virus. It's really helpful that the supermarkets have painted suggested distances to establish in a checkout line.  People don't understand intuitively what 6 feet of distance means.  It's just helpful.  They are scared because of effective transmission of facts by the media and public officials - other than Trump.  There are some stupid states and governors that are behind the times on this, and their states will suffer, like Florida and Mississippi.
As to closing schools - not sure this is the right step, but the idea of not collecting children together is sound.  Anyone with kids knows how they are agents bringing home viruses all the time.  Many are utilizing on-line learning, and that in itself will probably lead to a permanent change -- necessity is the mother of invention.
I think it will be interesting to see what the post-infection changes in government will be. I'm predicting that the health structure will change significantly. Some of this is barring the door after the horse has already escaped from the barn, but some of it will simply be adjusting to the new reality of a world of interconnectedness, and a world beset by ecological change and the mass erasure of many species, with unpredictable results, but the need for increased wariness, and less confidence that things will always remain the same.
Anyway, this guy sounds like a prig.  Far too self-satisfied!  They exist everywhere.
Much love as always,