Is LL Bean Hastening the Decline of the USA?

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    LL Bean's fall mail order catalogue has just arrived in many households. The catalogue lists hundreds of items such as shirts, sleepwear, jeans, outdoor gear, duck boots, and winter clothing in its pages. The problem is that, with one exception, all of the products advertised are imported. Only one half a page advertises products made in the USA - rubber matts suitable for collecting pet droppings or boot storage. What has happened to LL Bean epitomizes everything that has gone wrong with the U.S. economy - a refusal by corporate moguls and the 1% to invest in American manufacturing and our workers driven by a relentless quest to find the lowest manufacturing costs, the long-term, adverse consequences be damned.

     Currently,  LL Bean manufactures 425 products in the USA that are available in its online store but that number is a very small percentage of LL Bean's entire product line and constitutes less than 10% of its overall portfolio.*  The company's  American made products include their iconic duck boots and several other popular items. Home goods - blankets, chairs, tables - compose the largest number of its American made products at over 47% while footwear represents a mere 21% of its  American made product lines. A majority of its American made items are manufactured at its factory in Brunswick, Maine.

    The overwhelming g proportion  of LL Bean products are made overseas at LL Bean factories in China, Vietnam, India, El Salvador, Turkey, Bangladesh, Mexico, and Korea.

    Is it any wonder that, for all of the clamor to purchase American -made products and to rebuild the economy, manufacturing in the U.S. - as a share of the total output of goods and services - has continued to decline?  As consumer choices become ever fewer, the flood of foreign imports rend will be hard to reverse. The consequences for a consumer -oriented economy such as ours are dire. Consumers are forced to wait ever longer for products because of an elongated supply claim that is increasingly vulnerable to disruptions in foreign trade caused by climate change, inventory shortages, wars and future pandemics. In the long run, because of  the continued loss of well-paying jobs, aggregate demand in the U.S. economy will also falter because families will earn less and have less to spend.                                                             
 
    How we collectively choose to spend our consumer dollars is  up to us. Each of us must take responsibility for the personal decisions that we make - whether as consumers or as voters. 
                                                           

 *All American Reviews. "Is LL Bean Made in the USA?"  April 17, 2021)
[The article below, since slightly revised, was first submitted to the Boston Globe shortly after the results of Boston's mayoral primary were announced. I thereafter re-submitted the proposed op-ed twice but the Globe's editors have never even acknowledged receipt. I am concerned that Boston's most influential newspaper has now also succumbed to identity politics and "political correctness" masquerading  as  "wokeness." The effect of the effort to view politics exclusively through the prism of race does not help to build progressive coalitions but, instead, alienates potential allies.I strongly recommend Todd Gitlin's 1995 classic,"The Twilight of Common Dreams: Why America Is Wracked by Culture Wars."]

    On September 2, 2021, the Globe's editorial board enthusiastically endorsed the candidacy of Andrea Campbell to become mayor of Boston. In its editorial, the Globe waxed rhapsodic that "she radiates a sense of urgency, a palpable hunger to confront Boston's hardest, most politically fraught  challenges - its uneven school system and a law enforcement system that has lost the trust of too many residents." While the Globe's editorial board spent considerable space criticizing former Mayor Walsh's failures, it said little about any significant experience or qualifications Ms. Campbell possessed that would prepare her to be chief executive of this city. Apparently, what mattered most to the Globe's editors was the fact that "No matter who wins, history will be made: Boston will elect a mayor who identifies as a person of color for the first time in its history."

    Before, during and after its endorsement, many of the Globe's columnists spent a significant amount of time chronicling the fate of minority candidates. In the Globe's September16th edition - two days after the primary - Stephanie Ebert lamented the failure of the electorate to nominate a black candidate. Columnist Shirley Leung complained about outside, "right-wing" money supporting Annissa Essaibi George, but not a word of criticism was spoken about the role of other outside PACS whose money  fueled the campaigns of the other mayoral candidates, presumably for less than altruistic purposes. In the letters to the editor in  that same edition, a non-Boston resident who lives in the lilly- white enclave of Weymouth was given space to vent about the disappointment of the black community and how racist Boston is.

    In that same edition, Jeneé Osterheldt opined about the difference between the Old Boston vs. the New Boston and remarked that Essaibi George "is the only the only candidate with a real sense of scandal in this campaign due to her husband's capitalistic slummy practice and questions surrounding her complicity."  If Osterheldt's ad hominem attempt to blame a woman for her spouse's behavior is  acceptable journalism, does that make Andrea Campbell somehow personally responsible for the fact her late father and two siblings were felons? I think not. The attempt to now depict Annissa Essaibi George, who spent fourteen years as a teacher in the Boston Public Schools and was a member of the generally progressive Boston Teachers Union, as a reactionary or some kind of troglodyte will do little to heel the racial divide. 
 
   The following day, in its  September 17th edition, Renée Graham observed, "On Nov. 2, voters will elect the first woman and first person of color as its 55th mayor. In a city where white men traditionally hoard political power, the significance of that should not be undersold. Yet the fact that three viable Black contenders went 0 for 3 in a five-person race will sit sour for a good long while."
 
   Throughout the primary and to the present, a number of Globe columnists have repeatedly emphasized the importance electing a person of color as if pigmentation were in any way correlated to progressive policy positions. Those who think so should consider the cases of U.S. Senator Tim Scott of South Carolina and radio bloviator Larry Elders of California. While it is also true that the past mayors of Boston were all white men, few who have studied Boston politics closely would contend that the municipal policies advocated and implemented by  administrations of  Kevin White  Raymond Flynn, Tom Menino and Marty Walsh did not differ substantially - and for the better - than those of John Hynes and John Collins.
 
   Finally, the emphasis of Globe's columnists upon  "blackness" as an essential political trait and the considerable space given to the  WAKANDA II effort smack of the kind of corrosive identity politics that has contaminated so much of today's American politics. What would be the reaction of the Globe's editorial board if a number of prominent  Boston residents publicly insisted that we needed to elect a white person as mayor?
 
   One wonders why it hasn't occurred to the Globe's editorial board or many of its columnists that there is an alternative,  perfectly reasonable, non-racist explanation why none of the three black candidates for mayor did not qualify for the final election: Outside of their respective communities, they were largely unknown. Two of the candidates, acting Mayor Kim Janey and Mayor Janey and Andrea Campbell, were district councilors who had held elected  for three and five years respectively and the third, John Barros, had never held elective office but had worked in the Walsh administration.  By contrast, the two finalists, Michelle Wu and Annissa Essaibi George, served as at-large councilors who had long track records of  participating in  community meetings and supporting local community initiatives as a result of which they gained favorable recognition and became known to voters in neighborhoods throughout Boston.

    I have been involved in progressive politics my entire life and remain a committed supporter of Senators Bernie Sanders and Elizabeth Warren but, as a veteran of many progressive movements, I know that one can't advance progressive polices without first building a broad-based coalition. Racially-divisive remarks - especially at a time when the black population of Boston is declining and not increasing because of outward migration-  is unlikely to help build that coalition.
 
  The Globe's editorial board and columnists - few, if any of whom, I suspect are residents of the City of Boston and therefore have chosen not to participate in the civic life of this cosmopolitan city - ought to be more circumspect about lecturing the rest of us about our politics. Many of us - including my wife, a retired Boston Public School teacher, and I  - chose  to make Boston our home and to raise our families here, despite having other options, because we recognize the value of living in a diverse, culturally- rich and  dynamic city. 

    Condescending comments by the Globe's editorial board and columnists who "do not have a dog in the game" inevitably create a backlash that is inimical to the idea of progress. Progressive ideas, untainted by racially-divisive calls to identity politics, abound. One  undeniably progressive policy that the Globe's editorial board ought to consider supporting, given its current professed concerns, is metropolitanization.

    The voluntary annexation of cities and towns such as Quincy, Newton,Milton,Brookline, Wellesley, Weston, Dover, Hingham and the other nearby suburbs would,over time, help to deliver death blows to NIMBYism, parochialism and reduce racial and economic inequality and segregation. It would also simultaneously expand Boston's tax base, allow for the development of comprehensive zoning laws and land use planning, enable the creation of broad-based public transportation and traffic policies, expand access to quality public education for every child, and provide valuable human and financial resources that would enable Boston to better confront the many challenges that are the collective responsibility of the entire metropolitan community.
The Trump administration - with the active support of and the then GOP-controlled Senate led by Mitch McConnell  - was able to appoint three right-wing judges to the Supreme Court. Given their well-documented ideological biases and relative youth, they will  likely continue to bedevil and distort this country's jurisprudence and further erode respect for the rule of law for many decades into the future.

It is this concern that has promoted Massachusetts Senator Markey and a number of House Democrats to advocate expanding  the size of the Supreme Court by four additional judges. This proposal - - as well as other suggestions such as the imposition of term limits  - could be accomplished by legislation that would require only a simple majority of both house of the U.S. Congress. Is this legislation necessary?  

The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al ,  574 U.S. ___ (2014) is compelling evidence that the self-proclaimed commitment of the American legal system to equal justice is little more than a sham embellished by platitudes.

The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt  employees - to be paid for time that they were required to undergo anti-theft security screenings before they were allowed to leave the warehouse in which they worked each day.

The record before the court showed that the class of employees who brought suit under the Federal Fair Labor Standards Act of 1938  (FLSA) were routinely required to submit  to security inspections  and screenings that amounted to "roughly  25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.

In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."

The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed. 

Inexcusably, the Obama administration - despite the consistent support that it received from organized labor - joined the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed. Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles," Thomas insisted that question was the sole question before the court.

The Court's holding was not surprising, given Justice Thomas' narrow definition of what he and the other eight judges agreed was the sole issue before the court. Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispensable"' to the employees' duties as warehouse workers. 

Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?

Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Walmart. 

For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly employees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy? 

The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century, most state and federal courts treated labor unions and strikes as illegal conspiracies in restraint of trade. In addition, during the later part of the nineteenth century - in an era dominated by the Social Darwinism espoused by William Graham Sumner and Herbert Spencer - U.S. courts created out of whole cloth the doctrine of employment-at-will. That doctrine was a legal fiction that repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year. 

Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.

The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefitted

In the latter part of the nineteenth century, the Supreme Court also chose to grant the equal protection of the laws to corporations long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886),  the Supreme Court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."

That decision was especially perverse in that the court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson,  163 U.S. 537 (1896).  Once again the protection of property rights was held to be more vital than the protection of living human beings.

At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905).  Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..." 

Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935),  and  Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation. 
 
Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.

Perhaps the most influential of these right-wing judges was Lewis Powell, Jr. who was appointed by President Nixon as an Associate Justice in 1972. Powell, who wrote over 500 opinions, was especially instrumental in helping to orchestrate the court's pro-corporate reconstruction of the First Amendment in the area of campaign finance law, which culminated years later in the 2010 Citizens United decision.  Months before his appointment, Powell wrote a confidential memorandum to his friend and neighbor,  Eugene Sydnor Jr.,  who  was the chairman of the U.S. Chamber of Commerce education committee. Powell's memorandum was entitled "Attack on American Free Enterprise System." In that memorandum he wrote, "No thoughtful person can question that the American economic system is under broad attack," Powell began his analysis. "There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism)." "But now what concerns us," he continued, "is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts." 

To respond to this crisis, Powell recommended a stealth agenda of incrementalism to roll back environmental and work place regulations, and to counter the civil rights and anti-war movements. His memorandum and  proposed agenda were enthusiastically embraced by the Charles and  David Koch and Richard Mellon Sciafe who, through their enormous, tax-free contributions to the Heritage Foundation and the CATO Institute, advanced Powell's policy goals and inspired a right-wing insurgence.

Other influential right-wing federal judges have used other forms of sophistry to rationalize their hostility to government regulation in the public interest. The late Antonin Scalia espoused an almost theological commitment to the legal fiction of "original intent." A recent invention, the doctrine of "original intent" is especially destructive. As articulated by its proponents, it attempts to impose a requirement that laws must be analyzed within the framework of an eighteenth century worldview.

In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, the doctrine of original intent is, in actuality, a most radical form of judicial activism since it ignores the explicit language of the "necessary and proper clause" of Article 1,§ 9, c.18 of the U.S. Constitution; and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since time of John Marshall, had been viewed as a living, evolving document. 

"Original intent" thus represents a kind of constitutional death-wish. It would, if routinely applied, induce rigor-mortis in the country's legal institutions and perpetuate the advantages which the advantaged already enjoy. Through the use of "original intent," apologists for the status quo have devised an analytical technique that is designed to emasculate this country's foundational document; it also condemns the federal judiciary to the role of a negative, obstructive partisans. The judges and legal scholars who espouse the "original intent" doctrine have thus forged a judicial hammer to batter down any legislative efforts to level the playing field or to promote equality of opportunity.

Although many of these right-wing jurists profess consternation about exercise of power by the federal government in a professedly democratic society, they appear to have few concerns about the exercise of political and economic power by private unelected interests. Rarely have Justices Thomas, Roberts, retired Justice Stevens, Alito, Kavanaugh nor Gorsuch ever expressed any qualms about oligopolies, the growing specter of monopoly capitalism, or their increasingly anti-competitive and predatory practices, nor have they demanded the vigorous enforcement of existing U.S. anti-trust laws. Witness the Court's extraordinary decision in Ohio v. American Express,  , 585 U.S. ___ (2018). In that five to four decision , the Supreme Court held that American's Express's anti-steering provisions - which, by contract, forbade merchants from attempting to  dissuade cardholders from using Amex cards at the point of sale-  a practice known as "steering" - did not violate federal antitrust laws.
resident Trump's selection of Neil Gorsuch, an ardent proponent of original intent, as Justice Scalia's successor, and Brett Kavanaugh, as Justice Kennedy's replacement, are vivid illustrations of the legal influence that the right-wing Federalist Society continues to exercise over federal jurisprudence. Their selections will, in all likelihood, over time seriously undermine the work of regulatory agencies such as the EPA, the FCC and the EEOC since they have questioned the legal precedent known as Chevron deference.

That doctrine stems from a 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), in which the Justice Stevens held, without any dissenting opinions,  that " If... the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute which suggests that courts  should defer to federal agencies when it comes to interpreting vague or ambiguous laws defining their responsibilities." 

n contrast to Justice Stevens and Kennedy, Judge Gorsuch and Judge Kavanaugh have well-documented difficulties reconciling their 18th century notions of  jurisprudence with the regulatory regime necessitated by the legal demands of the twenty-first century. Gorsuch is critical of the growing body of administrative because the Founding Fathers, who did not anticipate the evolution of administrative law, neglected to mention it in text of the Constitution. For his part, Judge Kavanaugh has been a vocal  critic of the Affordable Health Care Act and, true to his partisan roots as an unapologetic supporter of corporations and their prerogatives, has consistently voted as a judge D.C. Appeals Court to uphold challenges to environmental and labor laws.

Neither Justice Gorsuch nor Kavanaugh are alone in their hostility to the idea of government regulation, especially by the federal government, that is intended to protect and promote the public interest. As the editorial board of the New York Times warned, "The court's pro-corporation decisions are widening the chasm in power and wealth between the country's elite and everybody else." 

Over the past decades, a majority of the Supreme Court have chosen to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez,115 S. Ct. 1624, 131 L. Ed 2626 (1995).  In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, et al,  514 U.S. 779 (1995),  a case in which Justice Thomas came within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation. 

Despite their professed admiration for the Tenth Amendment, however, a majority of  Supreme Court judges since the 1970s have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.

As another case in point, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976), has severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster. In First National Bank of Boston v. Bellotti,  435 U.S. 765 (1978), authored by Justice Powell, held that corporations have a First Amendment right to support state ballot initiatives.

Thirty years after the Buckley decision, an even more reactionary court declared that any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In  Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010), Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents that  had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

Finally, the five member right-wing majority of the Supreme Court, after the appointment of fellow-traveler, Judge Gorsuch, in Epic Systems v. Lewis, , 584 U.S. ___ (2018), has gutted the ability of employees in private sector to engage in concerted activity to improve wages and the conditions of work free from individual compulsory arbitration agreements. In Janus v. AFSCME,   585 U.S. ___ (2018),  the five ideologues simultaneously delivered a body-blow to the ability of public sector to require non-union members - whom they must still represent - to pay for their fair share of costs of administration, collective bargaining and grievance procedures. As Justice Kagan noted in the dissent, the Court's five member majority were "weaponizing the First Amendment." 

Justice Kagan's observation is prescient for, in the long run, the continued elevation to individual rights to the detriment of the public interest will exacerbate the growth of anti-social individualism and further erode the bonds that have historically united Americans and hobble the ability of government, at all levels, to promote the general welfare. 

 Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients remind us that as citizens of a political community we are obliged to seek the summum bonum - i.e., the highest good, the ultimate end -  which is synonymous with justice.

As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas, quoting Isodore, reminds us that "Laws are enacted for no private profit, but for the common benefit of citizens."  Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

Jacques Maritain, the French Catholic philosopher who followed in the footsteps of  Thomas Aquinas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of  modern societies. As a result, the primary duty of the modern state is the enforcement of social justice." Measured by that exacting moral standard, the federal courts have failed to protect the public 

interest and have become pawns of the 1% and the flawed market ideology that promotes and advances their interests to the detriment of everyone else. 
The ancient Greeks and Romans embraced a concept of society and the political community that is conceptually different, and fundamentally at odds, with the  American political tradition. Aristotle taught that "man...is by nature a political animal, and a man that is by nature and not merely by fortune citiless is either low on the scale of humanity or above it...inasmuch as he resembles an isolated piece at draughts..."

In fact, the root of the English word civilization is derived from the Latin civitas. The Roman notion of the civitas was endowed with the same mystical meaning which the Greeks attributed to the polis: As a member of the civitas, the Romans, like the Greeks before them, believed that a man fulfilled himself and achieved his destiny - which was to discharge his responsibilities in the life of the republic - as a citizen. Through the civitas, therefore, one became a sociable, functioning human being and thus distinguished oneself from lower forms of life or from barbarians, who because of their lack of knowledge of politics could not create political institutions that would enable them to emerge from their servile state.

 Because the classical conservative tradition emphasized obligation as a correlative of right and insisted that citizenship required conscious and willing deliberation and participation in the political process, it was not uncommon that all of the male citizens of ancient Athens often spent days as members of the Assembly deliberating issues of war and peace and the merits of proposed laws. 

More than two millennia later, here in the twenty-first century United States, notions about politics, citizenship and the obligations of citizens in an ostensibly democratic society stand in stark contrast to the ideas of the ancients. In 2016, a mere 60.1% of this country's citizens were able to find the time or summon the effort to even cast a vote in the presidential election. In the 2021 election,  the number of U.S. voters increased only slightly to 66.3%. The numbers were even worse in the two most recent off-year Senate and Congressional elections: 36.4 % cast votes in 2014; that figure was down from the 37.8 % of voters who cast ballots in  2010. In  53.4% of eligible voters chose to cast ballots in the 2018 elections. Voter turnout in the United States was thus among the lowest in the developed world.

As a result of the failure of young voters, women and minorities to vote in those off year in the 2014 election, the control of the United States Senate and House of Representatives reverted to the GOP.  A similar result might occur in the 2022 election cycle, given citizen apathy and low-information voters who have historically tended to support candidates whose  policies have bee shown to be inimical to their best interests . 

 At the state level, the figures are even more daunting.  As of April 8, 2021, Republicans controlled 54.27% of all state legislative seats y, while Democrats held 44.91%. Republicans composed a majority in 61 chambers, and Democrats held the majority in 37 of those chambers while the Alaskan legislature's house  was organized under a bi-partisan, power-sharing arrangement.  As of the same date, the GOP controlled  27 of the state governors' offices.  
 
 The indifference of so many Americans to the political process only underscores the observation that politics - whether through active participation or abstention - has consequences. Absent serious reform of existing Senate rules that perpetuate grid-lock and minority-control, and the need to reign-in the current  right-wing, activist U.S. Supreme Court, President Biden and the Democratic Congress will be essentially neutered during remainder of his presidency. Simultaneously,  the GOP will be  empowered to continue to wage unremitting war at the state and federal level against women, the LGBT community, minorities, the poor, labor unions, voting rights, regulatory reform, student debt, economic inequality, climate change and a host of other issues.
  
Compounding low voter turnouts, a recent Gallup poll reports that, as of March, 2021,  41% of those Americans who are registered to vote have declared themselves be Independent or unenrolled. The effect of that decision is that these unenrolled voters are unable to participate in the formulation of party platforms and issues. In addition, because they are unwilling to participate in party politics at the ward, county and state levels, they have ceded the power to choose candidates for public office and to advocate for policies to those voters who are enrolled and do participate actively in either of the two political parties.

There are a number of plausible explanations for the current gridlock and dysfunction that characterize current American politics. Undoubtedly, the torrent of private money unleashed  by the Citizens United decision of the U.S. Supreme Court, the suppression of voting rights, and the continued success of wedge issues to divide a very low information and distracted electorate have all contributed to the trivialization of U.S. politics. So, too, has the disappearance of journalism as a serious, independent profession and its replacement by pundits and talking heads who endlessly prattle on about who is up or down without any effort to seriously analyze the underlying issues. But they bare only a share of the responsibility.
 
The French Catholic philosopher Jacques Maintain, echoing Thomas Aquinas, argued that  that  "the primary purpose of which men, united in political society, need the State is the order of justice. On the other hand, social justice is the critical need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."

 Social justice can never be achieved in a political culture where voters are so preoccupied with their own private needs and the acquisition and accumulation of things that they are unable to find any time to participate in the political process. U.S. politics has devolved into to a food fight that is devoid or substance or any acknowledgment of the real problems that bedevil this country. 

Right-wing politicians and interest-groups - aided and abetted by" dark money" - are now engaged in a far-reaching campaign  to further suppress voter turn-out.  Americans who refuse to perform their civic duty, to become informed about the issues and to actively participate in the political process have no one to blame but themselves.

Justice Scalia's Sad Legacy

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This morning's mass shooting in Indianapolis reminds us again of the continuing epidemic of gun violence that ur Congressmen and Supreme Court jurists refuse to address.  As of April 16, 2021, the Gun Violence Archive reports that  147 mass shootings have occurred so far in 2021.Every day, 342 people in the United States are victims of gun violence in murders, assaults, suicides and suicide attempts, unintentional shootings, and police intervention, according to the Brady Campaign to Prevent  Gun Violence. 

Between  1968 and 2017, more than 1.5 million Americans  died in gun-related incidents, according to data from the U.S. Centers for Disease Control and Prevention. That number exceeds the approximately 1.2 million service members who have been killed in every war in U.S. history, based upon estimates from the Department of Veterans Affairs.

The emotional and economic losses caused by these gun deaths and injuries, as well as the emotional travail and suffering inflicted upon the families, friends and neighbors of the victims, are incalculable and the cumulative effects of this violence upon our entire society are pervasive. After the mass shooting in Las Vegas that left 59 dead and hundreds wounded, CBS Moneywatch's Aimee Picchi wrote that, "gun violence in the U.S. also has an enormous financial cost, rippling through the economy in the form of lost wages, medical bills, higher taxes for law enforcement and lower property values, among other factors. Some estimates put the total annual tab of shootings at well over $100 billion, while others put it even higher." A senior staff attorney at Giffords Law Center to Prevent Gun Violence, Michael McLively, was quoted by Picchi, "The usual discussion is: There's a mass shooting, we talk about political inaction, and then everyone turns to the next thing that's happening or next disaster. The cost of gun violence goes undiscussed, and it's super important because it's silently affecting everyone." According to the Law Center, researchers conservatively estimate that gun violence costs the American economy at least $229 billion every year, including $8.6 billion in direct expenses such as for emergency and medical care. 

The inability of this country's political and judicial institutions to address this problem has been exacerbated by the U.S. Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Prior to the Supreme Court's 5-4 decision in Heller, the Second Amendment had always been held by the federal courts to  grant to the people--and not to individuals--the right to keep and bear arms as members of a well-regulated militia (today's National Guard) as previously confirmed by the U.S. Supreme Court. See,  for example,  U.S. v. Miller, 307 U.S. 174 (1939). 

Sadly, the late Justice Scalia's tortured constitutional analysis and his inability to comprehend the grammatical interconnection between a subordinate clause in a sentence --"A well-regulated Militia, being necessary to the security of a free State..."--and the main clause--"... the right of the people to keep and bear Arms, shall not be infringed"--were an unfortunate consequence of the eighteenth-century ideological bias in which his legal analysis was mired.  In the name of an abstract right of the individual and his putative right to own a gun, Scalia denied the right of concrete human beings--who have died and will continue to die because of handgun violence--to be safe from harm: "We are aware of the problem of handgun violence in this country," Scalia piously intoned, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

 Scalia's unbridled defense of anti-social individualism has since given license to gun nuts and Second Amendment absolutists to thwart every rational effort to control the continuing slaughter of innocent citizens. While most GOP legislators at the federal, state and local levels have enthusiastically embraced the mantra of the NRA that "guns don't kill people, people do," too many Democratic legislators have been cowed into submission.

 How does one explain this insanity?  Part of the problem undoubtedly stems from the liberal ethos of the country in which the Founders intentionally constructed a constitutional system that emphasized the rights of solitary individuals over those of the community and, by means of checks and balances, separation of powers, and a diffusion of political power across a porous, largely unaccountable federal system, signaled a permanent distrust of government and its ability to act as an positive instrument for the public good.       
            
Protecting the lives and safety of innocent citizens the paramount duty of any democratic government. The right of citizens to live meaningful and productive lives without the fear or threat of senseless violence perpetrated by sociopaths and the deranged is a basic human right that trumps any narrow, inflexible interpretation of the Second Amendment.   

 Unless the problem of gun violence is addressed honestly, openly and courageously by judges and politicians, the number and severity of incidents of senseless gun violence will continue to increase. Will this country then descend into the kind of dystopia described by Hobbes, in which the "life of man is poore, nasty, brutish and short?"  If  that dark, future world should come to pass, those jurists and politicians who now oppose all rational forms of gun control will ruefully be remembered as craven cowards who spawned a culture of dearth,

 As citizens of a putative democracy we, too, now have a solemn responsibility. We must demand  through collective action, that local officials, law enforcement, including police  departments and their unions, support sensible  gun control. In addition, we should support all legislative efforts by Democratic candidates for Congressional office and for President to increase the size of the U.S. Supreme Court to eleven or thirteen judges.  Such a change would help to ensure that the Heller decision is reversed and that the Supreme Court would become more responsive to the will of the American people rather than  than the right-wing ideological  agenda of the Federalist Society. 

Has the U.S. Become a Country of Illiterates ?

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Words are the vehicles through which we, as humans, express thoughts. Without attention to the meaning of  words and the manner in which  which they are expressed, ur thoughts become unfocused and our ability to distinguish between that which is true and that which is untrue becomes unmoored.

When language is used imprecisely - or in a slovenly or cavalier  manner - the underlying quality of thought is similarly compromised. The link between language and thought is explored in George Orwell's profound novel, 1984. In that seminal book, the central character, Winston Smith, works in the  Ministry of Truth. His job is to help to create for the omnipresent tyranny which governs Oceana a new language, Newspeak. Newspeak is the ultimate language of control: Each year in the Ministry of Truth, thousands of words are  eliminated. In addition, antonyms are collapsed into synonyms. Hence,  "Freedom is slavery, "Ignorance is strength, "War is peace." 

As Orwell reminds us in the appendix to that novel, when one loses the capacity to use words correctly, one loses the capacity to think; when one loses the capacity to think,  the ability to rebel or to imagine alternatives to the status quo is irrevocably  extinguished. 

On an individual level, it is a sad fact that too many of American citizens lack the basic skills in reading, writing and comprehension to use language to communicate effectively or  coherently. Few can read a newspaper such as The New York Times with good  comprehension; fewer still read any newspapers or books at all. Hence, ungrammatical, vulgar and vernacular expressions are commonplace as the reliance upon often unverified and false  information conveyed by social media has exploded . Even Across the class divides, one detects a decline in literacy. Pervasive illiteracy among large segments of the American population has been widely documented, quantified and continues to be chronicled. 

By almost every indicator - whether measured by linguistic, scientific, historic, economic, geographic or legal literacy - Americans, as a people, fare  poorly. We have become a "sound-bite" culture. The consequence of this pervasive illiteracy is that many American citizens cannot distinguish between a fact and an opinion, or distinguish myth from reality. In addition, the illiteracy of the American population creates a docile and easily manipulated public. At the  political level, the inability to understand and to use language properly has created a vacuum into which slogans and cant have become substitutes for serious public discussion or analysis of issues.

The misuse of words impairs our ability to reason and to understand social reality. The deceptive or imprecise use of words denotes fallacious or imprecise thinking. Sometimes, when words are used as epithets for the purposes of ad hominem attacks, the intent of the author of the words is to elicit  an emotional reaction and to thus foreclose the possibility of serious reflection or consideration by appealing to the listener's prejudices. Thus, during the past six decades go cite one example,  the words "liberal," "government" and a panoply of related synonyms such as "tax and spend," "death tax" and "government mandates"  have been used by various right-wing politicians and media outlets to convey something sinister, while slogans such as "free enterprise," "individual rights" and the  "American way" have been invoked to convey something wonderful and patriotic. 
The calculated use of these words has been to persuade citizens to acquiesce to the roll-back of government regulation and programs in the public interest, and to thwart efforts to regulate heretofore unregulated entities such as hedge funds, financial instruments such as collateralized securities and debt obligations. Since Supreme Court's ill-fated 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010),  "dark money" has inundated our political system at all levels and turned American politics into little more than a Moroccan bazaar controlled by the highest bidders and the wealthiest donors.   

By 2008, under the political cover provided by this linguistic subterfuge, the unrestrained pursuit of self-aggrandizement precipitated a severe and prolonged fiscal crisis in the United States and throughout the world. By 2016, that same flawed process enabled an unabashed prevaricator, misogynist and barely literate sociopath to become President of the United States.

Because so many Americans are unable to describe with any kind of precision scientific, economic or political concepts, the range of  discourse and the limits of what it is possible for us to achieve collectively - as a society - has become pathologically narrowed. What are essentially "food- fights" among competing interests are accorded a gravitas far in excess of their due. At the same time, what is accepted as  conventional wisdom is designed to protect the status-quo on behalf of the 1% while impoverishing the rest of us. The relentless repetition of emotionally-charged and hysterical  arguments that continually warn of government over-reach by the Republican "noise machine" has become a form of "group-think" that  animates our anxieties, wards off meaningful debate or careful reflection, and vitiates our ability to  to entertain or imagine alternative solutions to existing social or political problems. 

We have become a politically passive and increasingly illiterate society. Unless we can overcome - quickly - our increasing, dismal state of ignorance, the prognosis for all of us and our descendants is not hopeful. 

An Easter Message, 2021

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For Christians throughout the Christian world, Easter is the apex of the liturgical calendar. In the iconography of the Christian Church, the Risen Christ symbolizes the redemption of mankind; its new hope and its new possibilities. The words of the Gospel of  Matthew continue to resonate two millennia later: "He is not here; he has risen, just as he said. Come and see the place where he lay." 

      The hope for redemption that is epitomized by Easter is the common legacy of all men and women, whether believers or non-believers, no matter their stations in life or their geographic locations. In our own way, each of us yearns to build a better life for ourselves, our children, our grandchildren. But each of us also knows that the quest will too often exact a very personal toll, as witnessed by the crucifixion. William Butler Yeats, perhaps better than most, grasped the secular implications the Easter message: the possibilities alongside the peril and uncertainty:       

Easter, 1916 

I have met them at close of day
Coming with vivid faces
From counter or desk among grey
Eighteenth-century houses.
I have passed with a nod of the head
Or polite meaningless words,
Or have lingered awhile and said
Polite meaningless words,
And thought before I had done
Of a mocking tale or a gibe
To please a companion
Around the fire at the club,
Being certain that they and I
But lived where motley is worn:
All changed, changed utterly:
A terrible beauty is born.

That woman's days were spent
In ignorant good-will,
Her nights in argument
Until her voice grew shrill.
What voice more sweet than hers
When, young and beautiful,
She rode to harriers?
This man had kept a school
And rode our winged horse;
This other his helper and friend
Was coming into his force;
He might have won fame in the end,
So sensitive his nature seemed,
So daring and sweet his thought.
This other man I had dreamed
A drunken, vainglorious lout.
He had done most bitter wrong
To some who are near my heart,
Yet I number him in the song;
He, too, has resigned his part
In the casual comedy;
He, too, has been changed in his turn,
Transformed utterly:
A terrible beauty is born.

Hearts with one purpose alone
Through summer and winter seem
Enchanted to a stone
To trouble the living stream.
The horse that comes from the road.
The rider, the birds that range
From cloud to tumbling cloud,
Minute by minute they change;
A shadow of cloud on the stream
Changes minute by minute;
A horse-hoof slides on the brim,
And a horse plashes within it;
The long-legged moor-hens dive,
And hens to moor-cocks call;
Minute by minute they live:
The stone's in the midst of all.

Too long a sacrifice
Can make a stone of the heart.
O when may it suffice?
That is Heaven's part, our part
To murmur name upon name,
As a mother names her child
When sleep at last has come
On limbs that had run wild.
What is it but nightfall?
No, no, not night but death;
Was it needless death after all?
For England may keep faith
For all that is done and said.
We know their dream; enough
To know they dreamed and are dead;
And what if excess of love
Bewildered them till they died?
I write it out in a verse -
MacDonagh and MacBride
And Connolly and Pearse
Now and in time to be,
Wherever green is worn,
Are changed, changed utterly:
A terrible beauty is born.

         The Eastern Rebellion, chronicled by Yeats, was, at the time, ridiculed as amateurish and folly, but within a short time, owing to the brutality of the oppressors, a new Ireland was born. So today, throughout the world, amidst the suffering caused by economic inequality and the rise of autocratic regimes, the hopes of a multitude are often met with derision and violent oppression, but their dreams too will be vindicated if they persevere. 

      In his inaugural address, John Kennedy reminded Americans  that "here on earth God's work must truly be our own." The creation of a better, more just world will not be achieved by solitary acts alone, for the power of the status quo is always too great. Meaningful, substantial change will only be achieved when each of us of recognizes our shared potential as part of a broader public effort to insist that the voices of all of us - including the poor, the bedraggled, the dispossessed, the ill - be heard and addressed by those whom we have entrusted to govern us. 

To bring about meaningful and lasting change, we must learn to work together.  Toward that end, we need to understand that freedom is not a negative, wholly personal right that can be exercised by oneself alone regardless of the consequences to others. Rather, it carries with it reciprocal obligations and depends upon societal recognition. In the T.H. Green, freedom is a shared right, a positive power to do something worth doing or enjoying in concert with others. 

    The Catholic philosopher Jacques Maritain, inspired by the teachings of Thomas Aquinas, reminds us, "...the primary reason for which men, united in political society, need the State, is the order of justice...social justice is the crucial need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."  These words have special meaning today in the  grip of a current world pandemic that has caused us to question our basic assumptions about what we owe to one another, our duties as citizens, and the responsibility of governments in democratic societies to eschew partisan agendas and to act in the public interest.
       
            There can and must be a place at the table for all of God's children. In the quest to achieve that goal, we redeem and fulfill ourselves as human beings when we work together. This is the message of Easter that all of us - believer and non-believer alike - should embrace, especially as we begin to emerge from this pandemic that has altered all of our lives for the past year. 

The future is upon us and is ours to grasp with its myriad of possibilities. 

The War against Workers

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    On March 9, 2015, Wisconsin Gov. Scott Walker signed into law a measure that prohibited unions from requiring non-union members for whom they bargained to pay agency fees, striking another blow against organized labor four years after the state effectively ended collective bargaining for public-sector employees. The new law, effective immediately, made Wisconsin the 25th right-to-work state and the first to do so since Michigan and Indiana enacted similar laws that were intended to hobble the ability of employees to bargain collectively for wages and for better working conditions. 

Image result for cartoons about the war against workers

Mark Mix, president of the National Right to Work Committee, claimed the action then put pressure on other Midwest states to follow suit.  "Every worker deserves freedom of choice when it comes to union membership and dues payment, and if states like Michigan and Wisconsin can pass Right to Work then Illinois, Minnesota, Missouri and Ohio can too," Mix stated.

            Mix's professed concern for the freedom of workers is little less than disingenuous propaganda since the economic evidence and historical record show that "right-to-work laws" have significantly weakened unions, and that the decline of a viable labor movement is  inextricably linked to rising economic inequality among Americans. As employers inevitably engage in a collective "race to the bottom" the ability of employees to negotiate and demand higher wages and better conditions for work declines. 

As of 2018, twenty-four states had agency fee requirements for public employees. While 28 states have so-called right-to-work laws that prohibit mandatory agency fees, Wisconsin and Michigan had exceptions for police officers and firefighters that permit agency fees covering those workers. In those right-to-work states, unions still represented workers but membership rates were significantly lower. Agency fees, paid by public-sector workers who decline to formally join their unions, provided millions of dollars annually to unions. The loss of that revenue further weakens the power of unions to create better working conditions and to improve the standard of living for employees. 

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The unremitting war against unions and the right of employees to bargain collectively for better compensation and working conditions has remained under attack by a well-funded and orchestrated cabal of right-wing pro-business groups since the end of the New Deal. In 1977, the U.S. Supreme Court decided Abood v. Detroit Board of Education. In a unanimous decision, the Court affirmed that the union shop, legal in the private sector, was also legal in the public sector. The Court held that non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.  

In the 2018 term of the U.S. Supreme Court that decision was contested anew. In Janus v. American Federation of State, County and Municipal Employees, the Supreme Court agreed to consider - for the second time in two years -a suit brought by anti-union groups. The nominal plaintiff, a disgruntled social worker in Illinois, challenged the legality of fees that workers who are not members of unions representing teachers, police, firefighters and certain other government employees must pay to help cover the costs of collective bargaining with state and local governments. Janus' lawsuit was funded by The National Right to Work Foundation which  is part of a right -wing network funded by corporate billionaires and ideological opponents of unions. 

In Abood as well as in Janus, the plaintiffs argued that requiring them to pay agency fees to unions whose views they may not share, violated their rights to free speech and free association under the First Amendment to the U.S. Constitution. Ironically, two prominent conservative law professors, Eugene Volokh and William Baude, had previously debunked that argument as nonsensical. In an amicus brief that they submitted on behalf of the AFSCME, they argued that even Abood was wrongly decided: "Where Abood truly went wrong... was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of  others' speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services--like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment's Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association." 

For their part, the unions contended that mandatory agency fees were needed in order to eliminate the problem of what they call "free riders" - non-members who enjoy the benefits of union representation i.e. - such as increased compensation and better working conditions obtained in through collective bargaining -  while simultaneously refusing to pay for the costs of that representation. In addition, depriving unions of agency fees could thwart their ability to spend money in political races. Historically, because of the long-standing antipathy of the GOP to unions, unions have endorsed and supported  Democratic candidates.

In 2016, the Supreme Court considered a similar case, and after hearing arguments appeared poised to overturn a 1977 Supreme Court precedent, but the death of conservative Justice Antonin Scalia the following month left the court with an even split of conservatives and liberals, and its 4-4 ruling in March 2016 did not resolve the legal question. Republican President Donald Trump's appointment of Justice Neil Gorsuch in 2017 restored the Supreme Court's 5-4 conservative majority. In the spring of 2018, after the appointment of Neil Gorsuch, by a vote of five to four, the Supreme Court's reactionary majority sided with the plaintiff and, in reversing the Abood decision, held that even the collection of agency fees by public sector unions violated the First Amendment rights of employees who opposed unions.   

"This case is about power," American Federation of Teachers President Randi Weingarten said. "The funders of this case want a new Gilded Age, this time on steroids," Weingarten added, referring to a period in the late 19th century known for its concentration of wealth among industrialists.

The union membership rate among public-sector workers was nearly 35 percent in 2017, more than five times higher than the unionization rate for workers in the private sector, U.S. Bureau of Labor Statistics figures show. Taking away mandatory agency fees could have profound implications for public-sector union coffers. Unions in New York state, for example, 
would lose an estimated $110 million per year without mandatory fees from non-members, according to the business-backed Empire Center for Public Policy.  The loss of this revenue to unions would be especially damaging since unions have historically been the agents that have promoted a higher standard of living, income equality, job security, and equal treatment of all employees in the workplace.  

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The private sector analogue to Janus v. AFSCME is Epic Systems v. John Lewis, a series of cases that U.S. Supreme Court also decided in its 2018 term. The employees in the Epic cases complained that their employers underpaid them in violation of the wage and hour provisions of the Fair Labor Standards Act of 1938,  and that, under §7 of the National Labor Relations Act,  they were entitled to engage in concerted action - such as class action arbitrations -  to vindicate their rights.

Supported by the U.S. Chamber of Commerce and a virtual smörgåsbord of right-wing funded institutions and "public interest" groups with deliberately deceptive names such as the Equal Employment Advisory Council, as well as by the Trump administration, the plaintiffs in Epic argued that the Federal Arbitration Act - that was passed in 1925 - should be construed to ignore and override the statutory provisions of the National Labor Relations Act. 

The NLRA, which was passed in1935 during the New Deal, was enacted to counter widespread strikes and labor violence between employees  - who were denied the right to organize and to bargain collectively - and business owners. These workers and their families were also often the victims of thugs and special police hired by employers. Many others were required as a condition of their employment to sign "yellow dog" contracts - agreements between workers and employers in which the employees - who lacked equal bargaining power - agreed not to join or support a union.  
 
The NLRA, at 29 U.S.C.  §151 -"Findings and declaration of policy" - explicitly states "[I]t is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions of the free flow of commerce ...by encouraging  the practice and procedure of collective bargaining..." In response to the plaintiffs' claims, the unions replied, "The right to engage in  concerted protected activity is ' a bedrock principle of federal and policy' that has repeatedly been invoked by the Board and the courts over the past eight decades....Just as an employer cannot deprive its workers of that substantive statutory right by insisting that they agree to arbitrate all workplace disputes instead of picketing, striking, or engaging in any other form of legally protected protest activity, neither can it opt out of the core, substantive worker-protected right established by Norris-LaGuardia and the NLRA by requiring workers to prospectively waive their statutory right to improve workplace conditions through collective adjudication."

At issue in Epic was the question of whether employers could, as a condition of employment, require employees to sign arbitration agreements that require them to submit all work-related disputes to individual arbitrations, contrary to §7 of the National Labor Relations Act; irrespective of whether they belonged to unions; and irrespective of whether existing negotiated collective bargain agreements required that work-related disputes be adjudicated between the unions, as the freely -chosen agents of the employees, and the employers through the grievance and collective arbitration process.  

In another five-to-four decision, writing on behalf of the Court's reactionary majority, Justice Gorsuch ignored the well-established canons of judicial interpretation, the unambiguous legislative history of both acts , and the plain wording of the Federal Arbitration Act. As Justice Ginsberg noted in her dissent, the Federal Arbitration Act was explicitly passed to provide a forum to resolve disputes among merchants, not disputes involving workers who are explicitly excluded from the act. By contrast, the National Labor Relations Act and its immediate predecessor, the Norris-LaGuardia  Act, were passed to guarantee the rights of all employees to organize unions, to bargain collectively to improve wages and working conditions, and to engage in collective actions to achieve those and related ends.   
     
The decision in Epic Systems may very well spell the death of organized labor in the private sector and will harm millions of Americans who work for wages, whether they belong to unions or not since they would now be reduced to the status of indentured servants.

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              The labor history of the United States in the nineteenth century and the first three decades of the twentieth century was often violent and bloody. Most state courts treated labor unions and strikes as illegal conspiracies in restraint of trade and labor organizers and striking union members were regularly arrested, imprisoned and often shot by Pinkerton detectives,private militias raised by employers, and National Guard soldiers who were mustered into service by business-friendly governors in many states.

              Ever so slowly, the tide began to turn. In the 1930s, as the effects of the Great Depression became more pronounced, industrial unionism, organized under the auspices of the Congress of Industrial Organizations (CIO), emerged. With the enactment of the National Labor Relations Act in 1935, the right of all workers "to organize and bargain collectively through representatives of their own choosing" was pronounced for the first time to be national public policy. Other New Deal legislation included the Walsh-Healey Government Contracts Act, which required the payment of prevailing wages on government contracts in excess of $10,000; the Railroad Retirement Act; and the Fair Labor Standards Act of 1938, which provided for the first time, with certain exceptions, a nationwide minimum wage floor and maximum workweek of 40 hours per week within three years of its enactment date.

            Courageous individuals such a Bill Haywood, Mother Jones, Eugene Debbs, John L. Lewis, and Walter and Victor Reuther, among thousands of others, struggled to secure social and economic justice for American workers. Organized labor brought to America the right to grieve mistreatment in the workplace, "just cause" termination standards, the eight hour day, weekends off, overtime and rest break regulations, workers' compensation, unemployment insurance and pensions. 

            Since the 1940s, the American labor movement has been forced into retreat. After the death of Franklin Roosevelt and the election of a Republican Congress in 1946, right-wing liberalism and laissez-faire economics one again became resurgent. The first great success of New Deal critics was achieved with the enactment of the Taft-Hartley Act in 1947, that was passed over President Truman's veto. The effect of this legislation was to outlaw "closed shops" and to permit individual states to allow "open shops"--i.e. shops in which elected unions could not require all of the employees to belong to the unions, irrespective of whether the non-union employees also received and enjoyed the benefits of collective bargaining.

            As a result of that legislation, corporations began an inevitable migration to the South where welcoming state legislatures hastily enacted "right-to-work" laws. The migration of these manufacturing companies away from the unionized urban centers of the Midwest and North left hundreds of mill towns impoverished and desolate, and the union movement, over time, has been effectively eviscerated.

            By January, 2018, the number of wage and salary workers belonging to unions stood at  14.8 million in 2017, which was an slight increase of 262,000 from 2016. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent and there were 17.7 million union workers.  

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Many non-union employees still do not seem to understand that their ability to influence working conditions and wages, as solitary individuals who lack comparable bargaining power with managers and owners of business, is virtually nil. Apparently, however, the myth of the autonomous, self-made individual who can receive recognition, remuneration and advancement solely by dint of one's own hard work continues to resonate in the workplace to the present, notwithstanding all of the evidence to the contrary. 

This myth now resonates at the top level of the federal government as Andrew Puzder, a fast food executive and opponent of minimum wage and other labor laws, was chosen by Donald Trump to become the Secretary of Labor. A fierce critic of government regulation and an Ayn Rand enthusiast, Puzder has expressed a preference for automation in the workplace. As he noted, machines are much easier to deal with than humans: "They're always polite, they always 
upsell, they never take a vacation, they never show up late, there's never a slip-and-fall, or an age, sex, or race discrimination case."

            Even among the few unionized workers still employed in manufacturing, downward economic pressures have forced many unions to acquiesce to a two-tier pay system imposed by management: younger workers now make substantially less per hour than more senior employees who perform the same work. The effect of this two-tier system denies younger workers upward mobility and divides workers based solely upon dates of hire: "The changing job market is undercutting entry-level wages for those who do not go to college. In the 1960s and 1970s, you saw high school graduates getting good jobs at Ford and AT&T, jobs that in inflation-adjusted terms were paying $20 or $25 in today's wages," said Sheldon Danziger, a professor of public policy at the University of Michigan. "Nowadays most kids with just high school degrees will work in service-sector jobs for $10 or less..."
                                          
                                                   ***
The decline of unions explains in large part why wages have remained stagnant for  decades. As the power of unions has eroded, companies have gained the upper hand and are able to unilaterally dictate to individual employees the terms and conditions of their employment. A survey conducted by Evan Starr, a management professor at the University of Maryland, found that one in five employees in the U.S. were subject to non-competition agreements in 2014.   Matthew Marx, a professor at M.I.T's Sloan School of Management, found that employers typically present  workers with  non-compete contracts when the employers lacked negotiating leverage. The use of  non-competition agreements has been expanded to restrict the ability of even low-wage workers to accept successor employment at "competitors" for higher wages in a wide range of jobs from sales to technical services.

Besides non-competition agreements, many companies have increasingly used their economic clout to impose non-poaching agreements that eliminate or severely restrict the ability of franchisees to hire workers from other locations within the same franchise. The "non-oaching"  agreements are widespread among franchises as diverse as  Burger King, H.R. Block and Jiffy Lube, among others. 

Eric Posner and Alan Krueger have pointed to the existence of  non -competition and anti-poaching agreements as evidence of  "monopsony power." The term is used by economists to describe the ability of an employer to suppress wages below the efficient or perfectly competitive level of compensation. This is done  through the use of non-compete clauses and non- poaching agreements that are aimed at the most vulnerable workers.

As Posner and Krueger note, "The studies show that common features of the labor market give enormous bargaining advantages to employers. Because most people sink roots in their communities, they are reluctant to quit their job and move to a job that is far away. Because workplaces differ in terms of their location and conditions, people have trouble comparing them, which means that one cannot easily 'comparison shop' for jobs. And thanks to a wave of consolidation, industries are increasingly dominated by a small number of huge companies, which means that workers have fewer choices among employers in their area." They conclude that, ''When employers exercise monopsonistic power, wages are suppressed, jobs are left unfilled, and economic growth suffers. Unions used to offset employer monopsony power, but unions now represent only 7 percent of the private sector."

             Harold Meyerson has described the correlation between union membership and economic equality in article in the American Prospect in 2012. He observed that "From 1947 through 1972, productivity in the United States rose by 102 percent, and median household income rose by an identical 102 percent. In recent decades, as economists Robert Gordon and Ian Dew-Becker have shown, all productivity gains have accrued to the wealthiest 10%. In 1955, near the apogee of union strength, the wealthiest 10 percent received 33 percent of the nation's income. In 2007, they received 50 percent."  

            Colin Gordon, a Professor of History at the University of Iowa, has argued that "One hallmark of the first 30 years after World War II was the 'countervailing power' of labor unions (not just at the bargaining table but in local, state, and national politics) and their ability to raise wages and working standards for members and non-members alike. There were stark limits to union power--which was concentrated in some sectors of the economy and in some regions of the country--but the basic logic of the postwar accord was clear: Into the early 1970s, both median compensation and labor productivity roughly doubled. Labor unions both sustained prosperity, and ensured that it was shared."

The pervasiveness of anti-union bias remains so potent in right-to-work states and so ingrained in the false consciousness of its citizens that, as recently as February 2017, Boeing employees in South Carolina voted against their own best interests. The National Labor Relations Board announced  that 74 percent of the 2,828 workers cast ballots voted against joining the International Association of Machinists and Aerospace Workers (IAM).  In a statement, IAM lead organizer Mike Evans said: "We're disappointed the workers at Boeing South Carolina will not yet have the opportunity to see all the benefits that come with union representation."    

                                                       *** 
          The mythology behind "right-to-work" laws and companion efforts have largely succeeded in gutting this country's labor laws but they have produced results quite different from the economic theory their proponents endorse. As Isaiah Berlin sagely noted, "Freedom for the wolves has often meant death to the sheep."  In a world of unrestrained competition, only the few, the wealthier, the more powerful, the more resourceful, the better educated, the more mobile, will be able to maximize their opportunities; everyone else gets left behind or becomes "road kill."

If unregulated market economies are the answer to economic progress, as corporate CEOs and their lobby of sycophants and enablers insist, how then does one explain the implosion of Wall Street and the related financial scandals that destroyed trillions of dollars of wealth possessed by ordinary Americans?  Conversely, if government regulation of the economy is the problem, how do we explain the growing economic inequality in the U.S? Why is it that, despite what right-wing libertarians claim is a confiscatory tax code, the wealth of the top 1% continues to grow exponentially?

  Massachusetts Senator Elizabeth Warren has been criticized by the Republican noise machine and its right-wing media outlets for stating the obvious: that each of us has depended for our success, to some degree, upon the help, assistance and inspiration that we received from others. Further, she has emphasized the obvious: that public goods - rail, road and airport infrastructure, public education, government support for R&D, public health, food and safety regulation, environmental regulation,  civil rights protection, consumer protection, anti-trust regulation, protection of intellectual property - are essential  prerequisites for economic success. Consider, for example, the rewards reaped today from the government funding and research to create satellite/GPS technology and the internet.

  Market economies are affected by the frailties and foibles of human actors. Many of these actors are motivated by selfish, short-sighted concerns; but the consequences of their actions harm everyone. It is for that reason that regulation in the public interest and investment by the government - as the agent of the people in a democracy - are essential antidotes to the temper the excesses of capitalism and to create the foundations for a truly just society.

The continued clamor to reduce public regulation and investment is a siren call that is orchestrated by corporations and the wealthy elite who want free reign to continue to game the system. Ordinary citizens need to resist that clamor and to understand that their true, long-term interests have little in common with the interests of the top 1%.  As Nicholas Kristof reminds us "If you're infatuated with unfettered free markets, just visit Waziristan." 


Work Until Dead: The Pension Crisis

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During Superbowl LII, on February 5, 2018, E-Trade ran a commercial that depicted elderly life guards, fire fighters and disc jockeys' struggling on the job and singing, "I'm 85 and I want to go home" to the tune of Harry Belafonte's "Banana Boat."  The ad correctly noted that over one third of Americans aren't saving any money for retirement. 

Image result for Cartoons about the pension crisis

Roberta Gordon is a case in point. In an interview with The Atlantic, she stated that she never thought that she would still be alive at age 76 and, if she were, she didn't think that she would still be working. Now, she spends every Saturday at a grocery store and hands out samples for which she is paid $50 a day. She states that she needs the money. Throughout her life, Gordon worked dozens of odd jobs  -  as a house cleaner, a home health aide, a telemarketer, a librarian, a fund raiser. Often, however, she didn't have steady job with an employer that  paid into Social Security and she doesn't receive a pension. Gordon states that she earns $915 a month through Social Security and through Supplemental Security Income, or SSI, a program for low-income seniors. Her rent is $1,040 a month and she's been forced to take on credit-card debt to cover the gap, and to pay for utilities, food, and other essentials. She often goes to a church food bank for supplies. 

  Ms. Gordon plight is typical of many Americans who have struggled throughout  their lives to make ends meet, but E-Trade's invitation to invest with it is no solution to their travail. 

From 1940 to 1960, the number of American workers in the private sector by traditional pension plans increased from 3.7 million to 19 million, or to nearly 30 percent of the labor force, according to the Employee Benefit Research Institute, or EBRI, and by 1975, 103,346 plans covered 40 million people.  By the early 1970s, many of those retired workers in the United States who were the beneficiaries of traditional pension plans were able to enjoy a comfortable retirement for themselves and their spouses in contrast to the impoverished experiences of previous generations of retirees. Their pensions were supplemented by Social Security benefits that were enacted in the New Deal, and were greatly augmented  by the medical coverage provided by Medicare which was enacted as part of President Lyndon Johnson's Great Society legislation.  

By 2014, only 15% of retired workers in the private sector were enrolled in defined benefit plans. By contrast, many of the defined contribution plans that the Employee Retirement Income Security Act of 1974 [ERISA} permitted employers to create provide retirees with benefits are based on the amount and investment performance of contributions made by the employee and/or employer over a number of years. Many of those401K plans make minimal contributions to their employees and opt to pay benefits in a  lump sum rather than as a lifetime pension. 

The key event that precipitated a clamor for pension reform occurred in 1963 when the pension plan of the South Bend, Indiana-based car manufacturer Studebaker Corporation  collapsed because of the company's bankruptcy. That event led in a 10-year Congressional effort to enact federal legislation to regulate pension plans. That effort - which was largely shaped by  the lobbying efforts of banks and money managers  -  culminated in the passage of , ERISA. ERISA, amended several times since, ostensibly requires companies to adequately fund their pension plans and mandates that workers vest their pension benefits after a minimum number of years.


Ostensibly, ERISA was enacted to create minimum national standards for pension plans in the private sector.  At the time it was enacted,  a majority of employees were enrolled in traditional pension plans - aka defined benefit  plans. Under those plans, many of which were joint union-employer pension plans, the trustees and administrators were held to a fiduciary duty to exercise prudent judgment to protect the assets invested on behalf of the covered employees.

At the behest of the financial industry, ERISA permitted the creation of defined contribution plans - individual  retirement plans - e.g. 401Ks, etc. Such plans are ultimately controlled by plan administrators and asset managers whom ERISA conveniently exempted from any fiduciary duty to act in the best interests of the employees whose assets they managed.  As a result of ERISA, a majority of American companies abandoned traditional pension plans during the past five plus decades and opted to create defined contribution plans, most of which significantly reduced the employers' financial responsibilities to contribute to their employees retirement plans.  

Subsequent legislation amended ERISA and increased the responsibilities of Employee Benefits Security Administration ( EBSA), including the creation of the Pension Benefit Guaranty Corp. In 2009, that agency guaranteed payment of basic pension benefits earned by 33.6 million workers and retirees participating in about 27,650 single-employer pension plans, according to the EBRI. And in 2010, the agency was paying benefits to 1.3 million workers from 4,140 terminated plans.

The overall effect of ERISA has been an unmitigated disaster for ordinary employees and their families. Historically,  long-term employees in the United States who retired after 30 or 40 years at a company received pensions with a guaranteed lifetime income stream.   By contrast, those who own 401(k)s and individual retirement accounts - defined contribution plans - are burdened by two impossible-to-control risks: stock market volatility and uncertainty about their own longevity.

As the 2018 E-Trade television commercial correctly noted, about one-third of Americans really don't have anything saved for retirement, according to a 2016 survey by the finance website GoBankingRates.  Other studies, such has one produced by the Economic Policy Institute, a left-leaning think-tank, have documented similar results. Prior to ERISA employer-sponsored pension plans, combined with Social Security benefits and, more recently, defined contribution plans, had truly turned retirement into the "golden years" for millions of 
workers. So until the past decade, workers didn't put much thought into saving for retirement, much less worrying about it.
Since the passage of  ERISA, corporate America has opting out of defined-benefit pensions for decades, and many experts agree that is a major cause of our retirement security crisis Jerry Gazelle, in an article for Workforce reported that, as of June 30, 2012, only 30 percent of Fortune 100 companies still offered a defined benefit plan to new salaried, a figure that was down from 33 percent at the end of 2011, 37 percent in 2010 and 43 percent in 2009.  Gazelle noted that, as recently as 1998, defined benefit plans were the norm among the nation's argest employers, at a time when 90 percent of those Fortune 100 companies offered traditional pension plans to new salaried employees.


By 2017, the future retirement benefits of employees held in union pension plans were at also at risk.  One financial analyst described as it as an "emerging financial crisis among multi employer pension plans in America. These plans are a subset of private sector defined benefit pensions covering 10 million workers and retirees. Most critical are the projected bankruptcies of the Teamsters Central States and the United Mineworkers of America plans, making front page news for the last several months. These plans and many others were undermined by two financial market crashes between 2000 and 2009, corporate bankruptcies, de-regulation, and over-regulation."

Whether even those few, long-term, unionized employees who remain in traditional defined benefit plans will enjoy then pensions for which they worked throughout their lives 
remains an open question. Increasing corporate debt and a lack of pension oversight have exacerbated the problem. 

Tops Super Market chain is one such sad example. In March, 2018, as reported by The New York Times, the chain was cutting prices even though it had filed for bankruptcy the previous month.  In March, 2018, the parent company of the Southern stores, Winn-Dixie and Bi-Lo, announced that it too would file for Chapter 11 protection by the end of that month, and would close 94 stores. 

The private equity firm Lone Star distributed  $980 million in dividends from Winn-Dixie's parent company since 2011, according to Moody's Investors Service. Most of the payments were made by taking out debt on the chain, leaving less money to invest in stores. Marsh Supermarkets, an Indianapolis regional grocer that had also been backed by private equity, laid off more than 1,500 workers and required a federal takeover of its pension plan in 2017.

  Amid the intense competition, the number of supermarkets around the country increased from 2010 to 2015, but the number of supermarket operators declined slightly.  The collapse of many retail supermarket chains implicates the fate of thousands of cashiers, cake decorators and meat cutters, many of whom belong to labor unions and are owed pensions when they retire. Tops, for example, employs more than 12,000 unionized employees at about 160 stores in New York, Pennsylvania and Vermont. 

  The international food giant Ahold acquired Tops in 2001. The company was sold to Morgan Stanley's private equity team six years later.  Under the firm's ownership, Tops loaded up on debt and paid out roughly $300 million in dividends to its investors, according to Moody's. Even though Morgan Stanley no longer owns the company, Tops never overcame the debt burden. And like other unionized supermarket chains, Tops has had to deal with steep pension expenses. 

When it filed for bankruptcy, Tops said it expected to operate "as normal'' throughout the bankruptcy, but union officials are bracing for closings. "I have never seen a bankruptcy that doesn't lead to closing stores," said Frank DeRiso, president of U.F.C.W. Local 1, which represents Tops workers in New York.

These changes have exacted a toll on unions. Membership in United Food and Commercial Workers, the largest grocery union, decreased by more than 9 percent between   2002 and 2016 to about 1.2 7million members, according to the Labor Department.  "The private equity owners try to drain every last ounce of blood from these companies," said John T. Niccollai, president of Local 464A of the U.F.C.W., which represents grocery workers in New York and New Jersey. "Their feeling is if it goes bankrupt, so be it." 

When Mr. Niccollai started working at the union in the late 1970s, the A & P grocery chain had about 7,000 stores. By the time A & P had filed for its second bankruptcy, in 2015, it was down to about 125. Mr. Niccollai found jobs elsewhere for 3,500 workers who had been displaced by the bankruptcy, but 1,500 of his members were out of work. He recently added membership by organizing some of the warehouse workers at the Peapod grocery delivery 
service, but it is challenging when the industry is increasingly dominated by nonunion employers like Walmart and Amazon."We are fighting hard," Mr. Niccollai added.
***
Not surprisingly, financial planners and investors have waxed ecstatic about the impact of ERISA: "ERISA had an effect on traditional pension plans and killed some of them, but overall it was good legislation," according to James van Iwaarden, consulting actuary with Minneapolis-based Van Iwaarden Associates. "When defined contribution plans were first introduced in the late '70s, they were never intended to replace defined benefit plans, but to supplement them." Today, "Defined benefit plans are dead," says Bob Pearson, CEO of Pearson Partners International in Dallas. "No company I know offers them even as a means to attract senior executives."

As a result of the  demise of traditional pension plans, Wall Street financiers and their enablers have reaped billions of dollars in fees from "administering" and churning 401k plans since the passage of ERISA. The losers have been the ordinary people who work and live on Main Street. Equally indefensible has been the failure of federal oversight to ensure that traditional pension plans are adequately funded and that pensioners are paid before investors. Lastly, corporations should not be permitted to renege on their obligations to employees through the ruse of bankruptcy, the effect of which is to transfer many of the pension obligations to the Federal Pension Benefit Guaranty Corporation which is subsidized by the taxpayers of the United States. These continuing abuses show that, in our current political and economic system, the concerns of ordinary citizens ring hollow while voices of the 1% sound loudly.   

The Myth of the Free Market

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The mythology of capitalism and the market economy that it has spawned have been successfully invoked by critics to emasculate unions and to compromise the ability of workers in the private and public sectors to demand higher wages and better working conditions. Yet that mythology continues to exert a bizarre intellectual stranglehold over so many Americans who should know better. 

The question that needs to be asked about this orthodoxy - as with all other orthodoxies - is, does it, in fact, explain existing social reality? If the markets for goods and services, absent public regulation, naturally seek to move into equilibrium, as advocates of unbridled market economics assert, why then have the annual median incomes of Americans, as of 2018, fallen precipitously since 1999?  

Why have "fair trade" policies, despite increasing levels of education in the U.S., caused a net migration of millions of U.S. jobs overseas during the past four decades, while the U.S. has continued to accumulate ever increasing balance of payments deficits caused by ever increasing purchases of foreign-made goods that were previously made and still could be made in this country?  

  Charles Duhigg and Keith Bradsher reported in the New York Times that nearly all of the 70 million iPhones, 30 million iPads and 59 million other assorted products sold by Apple sold in 2011 were manufactured overseas, primarily in China by third-party vendors with whom Apple contracted for services and products. Apple employs only 43,000 people in the United States and 20,000 overseas but, as a result of its exploitation of workers through third-party 
vendors, Apple made a profit of $400,000 per each of its actual employees, a sum greater than that made by Goldman Sachs, Exxon Mobil and Google. 

Despite the hyperbole, there is one question that is rarely asked in the popular media.  Is Apple, Inc. a model of corporate efficiency and success that should be praised and emulated in business schools throughout the U.S., or is it a corporate pariah that should be roundly condemned and criticized for its unconscionable greed?

      At a White House dinner in February of 2011, President Obama reminded the late and much heralded Apple CEO Steve Jobs that, once upon a time, Apple boasted that its products were made in America and he asked, "Why can't that work come home? Mr. Jobs's reply, according to other guests present, was terse. "Those jobs aren't coming back," he replied.
 That same year, Apple earned in excess of $400,000 in profit per employee - a sum that was vastly greater than the per employee profits of Goldman Sachs, Exxon Mobil or Google.

             In March of 2013, Apple announced that it held $40.4 billion in untaxed earnings outside of the United States as of September 29, 2012, and should it repatriate that cash, the company estimated it would owe $13.8 billion in taxes, or slightly under the federal 35 percent tax rate.

  The company also disclosed a worldwide annual revenue in 2013 in the amount of  $171 billion. In addition, during the five quarters prior to March 1, 2014, Apple officially reported total acquisition investments of $11.12 billion, in addition to the $1.02 billion in cash "business acquisition" payments.

  All of these grim statistics were called to mind again in the light of a fawning and uncritical article by Rebecca Ruiz that appeared in the Business Section of The New York Times on March 4, 2014.  The purported news story informed readers that Peter Oppenheimer,  Apple's senior vice president and chief financial officer, announced his plans to retire this coming in September, after an 18-year career with Apple.

            Ruiz's article was effusive in her characterization of Oppenheimer's performance as senior vice-president of Apple. She noted that "As chief financial officer for the last decade, Mr. Oppenheimer, who started in 1996 as controller for the Americas, helped oversee a shrewd global financial strategy, with Apple garnering record profit and building a significant pile of cash."

            Ruiz also found it a sign of Oppenheimer's business acumen that "As part of the strategy, Apple set up a web of subsidiaries around the world, allowing the company to legally avoid billions of dollars of taxes in the United States. In 2013, Apple raised $17 billion to fund a shareholder payout, a move that potentially helped the company save on taxes."

            Ruiz quoted Lawrence Isaac Balter, chief market strategist at Oracle Investment Research, who stated that Oppenheimer's "done a fantastic job building the war chest," and repeated a statement by Timothy D. Cook, Apple's current chief executive, who credited Mr. Oppenheimer with "managing the company's finances during a period of significant international expansion and revenue growth."

            At the end of Ruiz's column, we discovered that in fiscal year 2012, Mr. Oppenheimer was lavishly rewarded for his success in having helped to devise Apple's multifarious and ingenious schemes for corporate tax-evasion, and in his having enabled Apple to garner obscene 
profits for its shareholders on the backs of an exploited third work-force: Oppenheimer earned $68.6 million in total compensation package. Not surprisingly, Mr. Oppenheimer stated "I love Apple and the people I have had the privilege to work with and after 18 years here, it is time for me to take time for myself and my family," and it was announced that he had been named to the board of Goldman Sachs.

Apple is only one example of why the United States is no longer a net-exporter of goods and services. U.S. trade and tax policies since the 1970s have incentivized the out-sourcing of goods and services. By the end of 2017, China's trade surplus with the United States rose to a record  $347 billion deficit. The U.S. trade deficit with Canada amounted to $11 billion; with Mexico, a $63 billion deficit; with Japan, a $69 billion deficit; and with Germany, there was a 
$65 billion deficit. The data showed that the U.S. imported $2.2 trillion. Automobiles, petroleum, and cell phones were the largest categories. 

The U.S. is a consumption-driven economy. For that reason, in the long run, the migration of jobs to China and other third-world countries will prove to be self-defeating: An increasingly impoverished middle class here in the U.S. will eventually be unable to purchase the high-end goods that out-sourced manufacturers such as Apple and other U.S. based corporations import and try to sell to domestic consumers.

Inevitably, over time, as economic inequality continues to grow and purchasing power erodes, the life-styles of perhaps a majority of Americans will be reduced to that of most Chinese and Indians today. The problem is that, by and large, entrepreneurs and the boards of directors of corporations don't care about the long-run consequences of their behaviors, no matter how 
ill-advised or self-defeating. Perhaps they have accepted too blithely, as a corporate credo, John Maynard Keynes' observation that in the long-run we will all be dead.

            The sole goal of most corporations is to maximize profits to please their shareholders. In distinct contrast to their own employees, almost all of whom as at-will employees may be discharged from employment for no reason or any non-discriminatory reason at all, the shareholders' interests are protected by the boards of directors and, unlike employees, have a seat at the corporate table. To further protect the interests of shareholders,  the laws of the fifty 
states and the federal government  impose a fiduciary duty upon corporations to their  shareholders. 

An increasing body of evidence suggests that the traditional model of the market economy no longer behaves in the way that its most ardent proponents have predicted. As competition has given way to consolidation, and equal opportunity to plutocracy, the anomalies have now begun to overwhelm the paradigm. Whatever comes next, more of the same is not the answer. Given a mindset that sincerely believes that the pursuit of self-interest is somehow a public good, entrepreneurs and the other vaunted Masters of the Universe remain utterly uninterested in problems such as poverty and pollution, and they have no idea of how to reconcile basic principles of social justice with their desire to make a living.