This post is the next in a series dating back several years. In fact, it has been going on long enough that, as of this year, it would be more accurate to call it "60 Years of Science". But I am going to continue to stick with the old title. Chalk it up to nostalgia. And, as the title indicates, this is the thirteenth post in the series. Your can go to: http://sigma5.blogspot.com/2017/04/50-years-of-science-links.html for a post that contains links to all the entries in the series. I will update that post to include a link to this entry right after I post this entry.
I take Isaac Asimov's book "The Intelligent Man's Guide to the Physical Sciences" as my baseline for the state of the science when he wrote the book (1959 - 60). In these posts I am reviewing what he reported and what's changed since. For this post I am starting with the section he titled "The Nuclear Atom". I will then move on to the section he titled "Isotopes". Both are from the chapter he titled "The Particles".
The book was written at an interesting time in the evolution of our understanding of things subatomic. As Asimov notes "it was known by 1900 that the atom was not a simple, indivisible particle". By the time Asimov wrote the book the situation had reached maximum complexity. Roughly a hundred subatomic particles had been identified. This drove nuclear physicists nuts as there are only about a hundred different elements. The subatomic world was supposed to be simpler (i. e. composed of fewer parts and pieces) than the atomic world, not more complicated.
The impasse was broken a few years later by the introduction of "Quark theory". Quark theory made sense out of this large zoo of subatomic particles. One component of this idea was to organize them into families. Auto makers have developed "lines" of cars. Ford, for instance, used to have (it has now been discontinued) the Ford "Crown Victoria", the Mercury "Grand Marquis", and the Lincoln "Town Car".
To a great extend they were the same car. The Crown Victoria was the least expensive "base line" version for the economy end of the market. The Town Car was the most expensive "luxury" version for the carriage trade. And the Grand Marquis was midway between the two, both is terms of price and in terms of "trim level" and other features. It was fancier (and more expensive) than the Crown Victoria but not as fancy (or expensive) as the Town Car. But all three shared a lot of common design elements, parts, etc.
Nuclear physicists determined that there were similar familial relationships between subatomic particles. Particle families were grouped into "generations". In the case of one family of particles, the first generation was the Electron. It's second generation was the "Muon", originally called the "Mu Mason". Both particles shared a lot of attributes. The principal difference between the two was their mass. The Muon was much heavier and, therefore, held a lot more energy. The third generation was represented by the "Tau", originally called the "Tau Lepton". Again, the principal difference between it and the other two generations was a mass and, therefore, energy that was much larger than the other particles in the same family.
And with the introduction of the generations concept it became possible to line up various generations of one family of particles with the appropriate generational member of other families. So the cousin of the Electron that was a member of the Neutrino family ended up being named the "Electron Neutrino". Similarly, the second generation particle was eventually named the "Muon Neutrino". Unsurprisingly, the third generation ended up being named the "Tau Neutrino".
The second component of the new theory was the Quarks themselves. In the same way that atoms were composed of subatomic particles, some (but not all) of what had been thought to be indivisible subatomic particles like the Proton, turned out to be composites of new and heretofore unsuspected truly fundamental particles. And these newly discovered truly fundamental particles were called Quarks. And, cutting to the chase, Quarks could also be put into the same kind of "three generations" structure I have talked about above. But that's getting ahead of the story. Back to Asimov.
The Electron was identified by J. J. Thompson in about 1900. He was also the first to propose a model of the atom. It was like a cookie, specifically like an oatmeal raisin cookie. An atom consisted of some unspecified material playing the role of the oatmeal batter. Into it was stuck the Electrons, which played the role of the raisins. This model didn't last long but you have to start somewhere. Things quickly got complicated due to the study of radioactivity.
Becquerel did a lot of the early work. He quickly determined that in a lot of cases radioactivity looked like a particle shooting out of the atom. And some of there particles seemed to be Electrons. So far, so good. But another kind of emission was what he called an "Alpha" particle. It had a positive charge so was presumably a chunk of the oatmeal part of the atomic cookie. There were definitely other kinds of emissions. Following the convention he set up, he named a certain class "Beta" particles and another class "Gamma" particles. It didn't take long to determine that a Beta particle and an Electron were the same thing but the name "Beta" stuck and is still in use. And it also turned out that "Gamma" emissions looked like high energy X-Rays but the name "Gamma ray" also stuck and is still in use.
Good experimental work determined that Alpha particles were at least twice as heavy as Hydrogen atoms. More good experimental work soon determined that they were a form of Helium that weighed four times what a single atom of Hydrogen weighed. Other scientists followed up other clues and identified the Proton at about the same time the Alpha work was being done. Protons and electrons have equal but opposite charges. But a proton is roughly two thousand times as heavy as an electron. This large difference in masses was a puzzle that had no solution at the time of Asimov's book.
But the identification of the Proton led to the next iteration of the model for the atom. Now it consisted of Electrons orbiting a "nucleus" consisting of Protons. This was analogous to the solar system where the Sun is in the center (nucleus) and planets (Electrons) orbit it. This model led to a lot of questions. But it also led to some answers. The identity of an element was tied to the number of Protons in the nucleus. Hydrogen is Hydrogen because it has a nucleus containing one Proton. Helium is Helium because it's nucleus contains two Protons. Lithium is Lithium because its nucleus contains three Protons. And so on.
Also, chemistry is all about Electrons. They occupy the outer regions of the atom so when two atoms come close to each other, what they mostly see is the other's Electrons. Remove the Electron from a Hydrogen atom and it is still a Hydrogen atom. It just has a net positive electrical charge that attracts the electrons in the outer regions of other atoms. And that is the basis of how chemical bonds work. Similarly, a Beta particle is a Helium atom from which both outer electrons have been removed. It has a positive electrical charge that is twice as strong as that of a Hydrogen atom whose single electron has been stripped away. This was real progress.
One question that was quickly identified was the "mass" question. The Helium atom should weigh twice as much as a Hydrogen atom but it actually seemed to weigh roughly four times as much. Other, similar discrepancies popped up all over the place. One quick fix to this problem was to assume that a nucleus also contained Electrons. If a Helium nucleus contained four Protons and two Electrons then the mass would come out about right because the electrons weighed so little. And the charge would come out right because the two Electrons would cancel out two of the four Protons.
And there was another, more subtle version of this problem. According to this theory a Helium nucleus contained four Protons and two Electrons. But the weight of the Electrons could be neglected so the mass of the Helium nucleus should be exactly four times that of Hydrogen. But it was off by a bit. All masses for all atoms were off by a bit, a little bit in some cases, and a lot in others. What was going on? The next chapter is "what's going on". So let's move on to "Isotopes".
The obvious base for calculating the relative weights of the various elements is Hydrogen. But, as we have seen with Helium, that doesn't work very well. Helium does not end up having a weight that is exactly four times that of Hydrogen. Various things were tried and eventually it was decided to use Oxygen as the base. It seemed to be the least worst choice. (The reason for this will be explained below.) It was given a standard weight of 16. The weight of other elements then often fell close to an integer number. But not always. Chlorine, for instance, came in at 35.457 instead of a nice round 35. It took a while to figure out what was going on.
Becquerel found that if you purified Uranium, then left it lying around undisturbed for a while, it actually got more radioactive. He speculated that somehow a small portion of the not very radioactive Uranium was mysteriously transforming itself into highly radioactive "Uranium X". And if you carefully separated out the Uranium X then the remaining "regular" Uranium would, over time, just make some more Uranium X.
Rutherford found out that the same thing happened with Thorium. And it had already been determined that Radium, if left alone, would somehow create Radon gas. As this general phenomenon was further investigated it slowly dawned that elements were miraculously transforming themselves into other elements. And in every case radioactivity was involved.
Soddy in 1913 finally cottoned on to what was happening. If a radioactive transformation involved the emission of an Alpha particle then the source element was transformed into a different element that was down two places in the periodic table. What was happening was fission. An element broke into two pieces, One of them was an Alpha particle that carried off two Protons. The element that remained behind retained all of the other Protons but was now a different element due to the smaller number of Protons its nucleus now contained.
There were obviously multiple versions of elements. They all had the same number of Protons so they had to differ in some other way. He called these different versions "Isotopes" without worrying about what the difference was. An obvious "fix" was to assume that "the nucleus consists of a certain number of Protons and a certain number of Electrons". If we added extra Protons but also added the same number of Electrons to the nucleus at the same time then the atomic number stays the same. This trick allows us to account for all then known nuclear transformations.
We still ignore the masses of the nuclear Electrons as they are so light that their effect on the mass of the nucleus is what accountants call "not material". But we now have a new number, the "mass number". The mass number, according to our new theory is the total or "gross" number of Protons. The atomic number is the net Proton count, all nuclear Protons minus however many nuclear Electrons are present. Two isotopes of the same element have the same atomic number (net number of Protons) but different mass numbers (gross number of Protons).
And this isotope business helped to explain why the weight of a particular element did not end up to be a round number. If a typical sample of, say, Helium, contained some Helium -3 (atomic number 2, mass number 3) and Helium-4 (atomic number 2, mass number 4) then the atomic mass of the sample could come out anywhere between three and four depending on the ratio of the two isotopes. Things became clearer when the "mass spectrometer" was invented.
You turn your sample into a gas, then you "ionize" it (strip one or more Electrons off of each atom so it has an electric charge). Then you make it fly through a magnetic field at a constant speed. The magnetic field will make the trajectory of each atom bend. How much will it bend? Well, that depends on the mass, the speed, and the electric charge. If we can keep the speed and electric charge constant then if the mass is higher the sample's trajectory will be bent by a smaller amount. If we can pull this trick off (which is very hard to do in lots of circumstances) then we can weigh each individual particle.
The mass spectrometer allowed many individual isotopes of many elements to be weighed. And by measuring how much of each isotope a representative sample contained the "isotopic composition" of various elements could be determined. And, as an interesting side effect of this work. it was determined that some isotopes of some elements were "stable", they never engaged in radioactive decay. And, of course, some isotopes were determined to be mildly radioactive (they "decayed" slowly into other elements and isotopes) and others were highly radioactive (they quickly decayed into other elements and isotopes).
And it turned out that even Oxygen, the standard against which other elements were weighed when Asimov wrote his book, was a combination of isotopes. It's just that it was 99.9% Oxygen-16 and only a tiny amount of other isotopes of Oxygen. Since Asimov wrote the book, the reference standard against which the relative atomic mass of each isotope of each element is compared, has been changed from "Oxygen" to "Carbon-12".
Carbon is carefully separated out and pure Carbon-12 is isolated. Then it is weighed and given an arbitrary "atomic mass" of 12. The relative atomic mass of other isotopes relative to that of Carbon-12 is determined and that ratio is used to determine that isotope's atomic mass. This resulted in a small change in the atomic masses assigned to other elements.
This change was made because it improved the situation. It brought a lot of atomic masses closer to being integral numbers once isotope ratios were accounted for. And each isotope was now handled separately for the purposes of determining its atomic mass. Most discrepancies are now small, but with the exception of Carbon-12, none of them is an exact integer. The reason for this had been solved by the time Asimov wrote his book. But that's something he gets into later.
So physicists were pretty happy at this point. The "nucleus is a mix of protons and electrons" theory worked very well. But then Rutherford came up with an experimental setup that allowed him to probe the nucleus in new ways. He figured out how to fire Alpha particles at a target. The target was made from Zinc Sulfide which would "scintillate" (throw off a spark of light that could be seen with the naked eye) when hit by an Alpha particle.
He then put a metal disk in the path to see what would happen. At first the scintillations stopped. But then he added Hydrogen to the mix and things changed. He concluded that single Protons, presumably from the Hydrogen, were now striking the target because they had enough energy to penetrate his metal disk. Very interesting.
He tried some different things before switching to what is now called a "Wilson cloud chamber". If you have air with a lot of water vapor in it then lots of things will cause the water vapor to condense into small droplets that are visible using just your naked eye. By carefully tweaking the apparatus you can see the path of ionized particles. If you then add a magnetic field the paths of the ionized particles will bend just like they do in a mass spectrometer. Because you can see the paths of ionized particles you can take the same kinds of measurements. This is a classic example of a better apparatus leading directly to better science.
A careful analysis of an Alpha particle striking the nucleus of a Nitrogen atom led to a determination that the Nitrogen nucleus could sometimes absorb the Alpha particle. It immediately threw off a Proton and transmuted into Oxygen. The Proton's path could be easily seen because at this point it was ionized.
This is the first example of a man-made process that could transmute one element into another. Alchemists had hoped to transmute "base metal", by which they meant lead, into gold. This can now be done. But the process is fantastically expensive. You are far better off just buying gold in the first place.
The method of viewing a cloud chamber as it made the paths of charged particles visible using a "mark one eyeball" was quickly replaced by taking photographs. Photographs could capture more detail and resulted in a permanent record that could be reviewed by others.
Asimov notes that the scientist who nailed down the Nitrogen to Oxygen transmutation had to take and examine 20,000 photographs to find 8 in which the event he was interested in occurred. By the time Asimov's book was published scientists were employing rafts of graduate students to examine hundreds of thousands of photographs looking for interesting events.
But the rate at which scientific instruments could churn out photographs, all of which had to be examined for events of potential interest, kept increasing. It soon reached a practical limit. Fortunately, at about the time the practical limit was reached solid state devices came along that were capable of replacing the cloud chamber.
Detectors capable of collecting the same kind of data (particle path, speed, mass, etc.) that had been extracted from cloud chamber photographs now exist. And they work pretty well for charged particles. But there is only a very limited capability to observe and measure the attributes of uncharged particles. In some cases it is possible to detect the presence of an uncharged particle. It is also sometimes possible to measure the energy it carries. But that's about it. Still, that's better than nothing. There is no doubt that the business of detecting and tracking uncharged particles doesn't work nearly as well as scientists would like.
But it is now possible to hook detectors up to computers and have them look for and measure events. That gets grad students out of the business of going blind by looking at zillions of photographs. It might sound like that puts them out of work, but don't worry. They still have lots to do.
Even after computers do a lot of preliminary work it is still necessary for a trained person to look at the result. The detectors at CERN, the home of the LHC, the largest particle detector in the world, can generate the equivalent of those 20,000 photographs in a small fraction of a second. Even with all the computer filtering the LHC can turn out hundreds of potentially interesting events per day. That's why the staff of each detector runs into the thousands.
We have now reached the point where we have an atom with a nucleus of protons and, as far as we know at this point, some electrons. The nucleus is surrounded by electrons in some mysterious configuration. This is just the beginning of the story. But there is where I must leave it in this installment. To be continued . . .
Monday, March 18, 2019
Saturday, March 9, 2019
From Ito to Ellis
Like a lot of my posts, this one builds on previous work. In my last post I suggested you NOT go back and read my previous work on the subject. This time around I can strongly recommend you do the opposite, that you reread my previous post. And the reason is simple. One of the two people I am featuring in this post is someone most people have forgotten about. His name is Lance Ito. Who? My point exactly.
Mr. Ito was the presiding judge in "the trial of the century". The century in question is not our current one but the one that immediately preceded it, the twentieth century. Specifically, the trial ran from November of 1994 to June of 1995. The trial was a murder case that was handled by the State of California and the defendant was one Orenthal Julius "OJ" Simpson. He was acquitted even though most observers, including myself, thought he was guilty.
The trial was "the trial of the century" on one sense. It was covered more extensively and more intensively than any other trial from any century. The cable news landscape was quite different at the time. CNN had been founded in 1980 but both MSNBC and Fox News only date back to 1996. There were a couple of "business news" channels around (CNBC, founded in 1989, and Bloomberg Television, founded just in time at the beginning of 1994). But the business news channels covered business, And the OJ trial had no "business" hook. And CNN considered itself a "serious news" channel at the time. They devoted a lot of coverage to the OJ trial but did not go "wall to wall".
But the trial, and the events leading up to it, were covered intensively, not only in southern California, where all the events happened, but nationally. All of the network affiliated TV stations in my market (Seattle) broke in to cover the infamous "Bronco chase" (see my previous post for details). This left the local stations no alternative so you could literally flip from channel to channel to channel and see roughly the same feed on all of them.
Okay. That should give you enough information to convince you that you should definitely read my previous post. So here's the link: http://sigma5.blogspot.com/2014/06/the-oj-trial.html. These events happened long enough ago that even people who were paying attention at the time have forgotten the details. In my previous post I covered many aspects of the trial. Here I want to focus on only one of them.
Judge Ito is still alive, although he retired from the bench a few hears ago in 2015. Going into the trial he had a good reputation. He emerged from the trial with his reputation in tatters. It never recovered. The OJ trial is a prime example of the influence, for good or ill, that a judge can have on judcicial proceedings.
And the OJ trial was unlike most trials in one aspect, an aspect that turned out to be critical. The state of California gives judges the option of letting proceedings be televised. Judge Ito okayed television coverage. So literally everyone could effectively sit in the courtroom and observe the proceedings.
Courts have been experimenting with TV coverage as long as TV has been around. A couple of early experiments led to a circus atmosphere. For one thing, the lights had to be extremely bright for the TV cameras of the time to work. For another, lots of people played to the cameras rather than observing standard courtroom decorum. That led to most courts banning TV cameras most of the time.
But by the time of the OJ trial those sorts of problems had been ironed out. TV cameras had gotten a lot better so lighting did not need to be especially bright for everything to work. And everybody had gotten used to the process. Judges had developed effective techniques for keeping everyone in line. So the presence of TV cameras did not have a direct effect on the proceedings.
What did have an effect was that the audience could see and judge the behavior and effectiveness of the various players. And they did. And the score card had a profound effect on several of the key players. As I reported in my previous post, the reputation of F. Lee Bailey, up to this point considered a superstar lawyer, plummeted. He just didn't seem to have a good grasp of what an effective defense strategy would be. The person who did was Johnny Cochran. He went from being someone that no one had heard of to having the kind of superstar reputation that Bailey lost.
Bailey lost the most but Judge Ito was also a big looser. Again, as I laid out in my previous post, Ito received a failing grade from most observers for the way he managed his courtroom. Rather than rehash my previous post let me make two observations. The key prosecution witness was a cop named Mark Furman. It turns out Ito's wife had been his supervisor at one point and Furman was on record as having said derogatory things about her.
Th other observation I want to make is that Ito's behavior had a substantial negative effect on the prosecution's case and a substantial positive effect on the defense's case. This is probably a good thing in many cases as the prosecution has substantial resources and most defendants have few or none. The prosecution should be forced to make their case. On the other hand, if the prosecution has s solid case they should be allowed to put it on. Ito really didn't let the prosecution do this.
And that's not the worst of it. Furman entered Simpson's property even though it was secured by citing a combination of "probable cause" and "exigent circumstances". It is likely that they didn't exist. If the evidence obtained this way had been thrown out then it is not clear that the prosecution had a case. In my opinion, ruling that the evidence, and all evidence that followed from it, was inadmissible, would have resulted in the prosecution losing fairly.
Finally, Mr. Simpson was not a normal defendant. He was well known, had many powerful friends, and had substantial financial resources. In these cases there is no justification for the judge being anything but even handed.
Now let me move on to the second person named in my subject line, Mr. Ellis. He is Federal Judge Thomas Selby Ellis III. He is a "Senior" judge, which means he is semi-retired. This is appropriate because he is close to eighty years in age and has been a Federal judge for more than thirty years. What has brought Judge Ellis to my attention is that he was the presiding judge on one of two cases recently brought against Paul Manafort. It turns out that there are a surprising number of similarities between the Manafort and the OJ cases.
In both cases the Judge was much harder on the prosecution than on the defense. In both cases the defendant had the wealth and power to mount a substantial, well resourced, defense. And in both cases the prosecution was burdened with putting on a complicated case while the defense had a much easier time of it.
The venue in which Judge Ellis serves is notorious as being the home of the "rocket docket". Judges try hard to move cases through quickly. They try hard to get both sides to pare their cases down to a few key items in dispute and to provide a minimum of support for their view of the issue.
Again, in the abstract, this is a good thing. It is unjust to force defendants to wait long periods of time, often in jail, simply waiting for their case to come up. If cases are short then more cases can be heard in a year and the backlog can stay short and cases spend minimal time in scheduling limbo.
But again it is incumbent on the Judge to let the prosecution prove their case if they can. In the OJ case a serious argument can be made that the prosecution did not make their case. This is definitely not true in the Manafort case. The prosecution presented substantial and compelling evidence to support each and every aspect in their case. And, unlike in the OJ case, the Manafort team provided little or no reason to call any of the prosecution's case into question.
In the OJ case, Judge Ito was a fan of Johnny Cochran, the eventual lead defense attorney. In the Manafort case, the Judge regularly expressed the opinion that the crimes Manafort was being charged with were "chicken feed" (not his characterization but equivalent to what he did have to say). He also opined that the only reason Manafort was in front of him was because he was as a stepping stone to bigger fish. And not all of this happened out of the hearing of jurors.
And a case can be made that the Judge was right. It has long been the case that white collar crimes, anything illegal perpetrated by men in suits and not using violence, does tend to result in a light sentence. It is probably true that the Judge could find earlier cases prosecuted in his district that had resulted in sentences being handed down that were roughly in line with the sentence Manafort received.
But that's the problem. Lots of people have received far harsher sentences than Manafort's for crimes most of us would characterize as far less serious, There are lots of people serving hard time in the Federal Prison system for non-violent drug crimes. But that just makes it worse.
And the decades long effort to make sure that sentencing is uniform and appropriate is a response to this. That's why the federal sentencing guidelines exist. They can get it wrong. But this only comes about if there is something in a particular case that is not appropriately handled by the guidelines. There was nothing like this in Manafort's case.
The guidelines start with the "type" of each crime the defendant has been convicted of and assigns a score. The scores are added up to produce a preliminary sentencing range. Then adjustments are made based on "mitigating" and "aggravating" circumstances. This is an entirely mechanical process of so much for this and so much for that.
If a defendant does this (i. e. enter into and execute a "cooperation agreement" with the authorities, demonstrate an understanding of his crime and show true remorse, etc.) then then based on the type of mitigation, the sentencing range is adjusted down. If a defendant does that (i. e. is a repeat offender, attempts to tamper with a witness, etc.) then a similar process is used to adjust the sentencing range up.
This process was done in the Manafort case. In short, there were several aggravating factors and no mitigating factors. The defense team did not challenge any of the findings that went into the sentencing recommendation. The Judge had spent the entire trial haranguing the prosecution to speed things up and don't take any detours. So the prosecution kept is short and said "we agree with the sentencing guidelines as is" rather than spending a lot of time on the subject.
So what did the Judge do? He in effect threw the sentencing guidelines out the window and, on his own, issued a sentence that was roughly 20% as long as the guidelines. Judges are given wide discretion to reduce sentences but they are expected to provide justification. Technically, the Judge did provide a justification. But the justification was wholly inadequate.
The first thing he did was ignore or grossly mischaracterize facts entered into the record as the case proceeded. He characterized Manafort as having led a "blameless" life. The trial record says differently. Evidence was introduced of Manafort engaging in various criminal activities over at least a decade. These crimes were perpetrated solely to increase the wealth and power of Mr. Manafort. In short, they were the kinds of things a Mafia kingpin would do.
He made a lot of money promoting the activities of various thugs and criminals who spent a lot of time and effort in opposing the interests of the United States. So Manafort was manifestly anti-American. These people also spent a lot of time undermining and subverting the institutions on which civilization depends, things like the very court system that Judge Ellis is a key part of. This is hardly the behavior of a blameless man.
And then there is all the lawlessness he engaged in after he was convicted of eight crimes and pled guilty to a slew of others. He then chose to enter into a cooperation agreement with the authorities and violate it repeatedly.
On the other hand, the Judge assigned heavy weight to a number of routine letters of support. Anyone as rich, powerful, and well connected as Manafort would have no trouble wrangling such letters. I'm sure Mafiosi could too. And they would be similarly effusive. And similarly meaningless.
The only thing that sticks in this whole sorry mess is the Judge's contention that white collar crimes usually result in light sentences. This, unfortunately, is true. Horrible damage was done to the economy and the lives of many thousands of people by the wretched excesses of Wall Street that led to the crash of '08. Nobody, with the possible exception of a single low level flunky, went to jail. There were almost no prosecutions.
And that means that there is little reason for the people who perpetrated that great disaster and similar other lesser disasters have any reason to change their behavior. And they get paid outrageous sums to keep doing the same thing. We should not be surprised that rich and powerful people often engage in bad behavior. They have every reason to do so and, thanks to people like Judge Ellis, there is little likelihood that they will pay a heavy price for their bad behavior even if they are caught and convicted.
The reforms that led to the sentencing guidelines that the Judge ignored were one feeble attempt to put things right. And the Manafort case is the poster child for why prosecutors are reluctant to bring these kinds of cases. They are hard to develop. They take a lot of hours of work by skilled people to put together. They require the prosecution to place a complicated case before jurors, keep them from getting confused, and prove all the elements.
That is very hard to do. It is particularly hard if a Judge Ito is permitting the defense to throw in interruption after interruption. Or if a Judge Ellis is disparaging the fact that you even brought the case in the first place while simultaneously saying "move things along" and " stick only to the essentials".
And you have the results in these cases. OJ gets off completely. Manafort gets a ridiculously light sentence. And the Manafort case in particular was a slam dunk. The prosecution had extensive documentation (which they were repeatedly told to keep to a minimum) and compelling witnesses like "salt of the earth" employees of small businesses that Manafort did business with. The OJ case could have been a slam dunk if the LAPD had done high quality police work. But they didn't. Even so, that case was still pretty compelling.
In many cases white collar crimes are much messier. Multiple bad actors can be blamed. This is definitely true in the crash of '08. It wasn't caused by a single individual but by a whole corrupt system. But cases normally need to be brought individual by individual. The Manafort case involved substantial, voluminous, and substantially complete documentation. (Manafort's number two, Rick Gates, flipped and was able to provide invaluable assistance). In white collar crimes the record is often far from complete.
But white collar crimes are often more damaging to society than other types of crimes that are routinely dealt with far more harshly. And the Manafort case brought the dual nature of our justice system into sharp focus. There is one system of justice for Manafort and others with wealth, power, and a network of well connected friends. Then there is an entirely different system of justice for the poor, marginalized, and powerless.
Those people do not have the resources to mount the kind of defense Manafort did. His defense was incredibly weak. They did not seriously challenge a single aspect of the government's case. They certainly had the resources to locate and exploit any weaknesses. The only thing I can conclude is that there were no weaknesses in the prosecution's case.
But in the end what they did do was effective. They said Manafort was a nice, well educated, and successful man who had not been caught before and who knew a bunch of people who would attest to the fact that he was a family man and the kind of guy they liked to be associated with. That turned out to be enough to get 80% of Manafort's sentence to go away.
Ultimately the OJ case accelerated the change in the "news" away from news and toward sensationalism. It had no impact on how the LAPD did business or how courts, either at the state level or anywhere else, operated. OJ is out of jail, finally, but he is now an old man.
It remains to be seen what impact this particular case will have. I think it will not have much. Manafort was convicted of crimes in two jurisdictions. The sentencing phase has not yet taken place in the second jurisdiction. More importantly, "Manafort" is only a small star in the much larger galaxy of scandals that is the Trump Administration. If substantial change is going to occur, it will most likely be a consequence of the gravitational pull of the black hole that is at the center of this large assemblage.
Finally, both cases make even more clear that "justice" is in the eye of the beholder. There are lots of people that feel that the OJ case was decided correctly. There are lots of people that feel that the Manafort case was decided correctly. It no longer matters much what the facts in either case are. All too often today beliefs are held not because of the facts but rather in spite of the facts. That, more than anything else, needs to change.
Mr. Ito was the presiding judge in "the trial of the century". The century in question is not our current one but the one that immediately preceded it, the twentieth century. Specifically, the trial ran from November of 1994 to June of 1995. The trial was a murder case that was handled by the State of California and the defendant was one Orenthal Julius "OJ" Simpson. He was acquitted even though most observers, including myself, thought he was guilty.
The trial was "the trial of the century" on one sense. It was covered more extensively and more intensively than any other trial from any century. The cable news landscape was quite different at the time. CNN had been founded in 1980 but both MSNBC and Fox News only date back to 1996. There were a couple of "business news" channels around (CNBC, founded in 1989, and Bloomberg Television, founded just in time at the beginning of 1994). But the business news channels covered business, And the OJ trial had no "business" hook. And CNN considered itself a "serious news" channel at the time. They devoted a lot of coverage to the OJ trial but did not go "wall to wall".
But the trial, and the events leading up to it, were covered intensively, not only in southern California, where all the events happened, but nationally. All of the network affiliated TV stations in my market (Seattle) broke in to cover the infamous "Bronco chase" (see my previous post for details). This left the local stations no alternative so you could literally flip from channel to channel to channel and see roughly the same feed on all of them.
Okay. That should give you enough information to convince you that you should definitely read my previous post. So here's the link: http://sigma5.blogspot.com/2014/06/the-oj-trial.html. These events happened long enough ago that even people who were paying attention at the time have forgotten the details. In my previous post I covered many aspects of the trial. Here I want to focus on only one of them.
Judge Ito is still alive, although he retired from the bench a few hears ago in 2015. Going into the trial he had a good reputation. He emerged from the trial with his reputation in tatters. It never recovered. The OJ trial is a prime example of the influence, for good or ill, that a judge can have on judcicial proceedings.
And the OJ trial was unlike most trials in one aspect, an aspect that turned out to be critical. The state of California gives judges the option of letting proceedings be televised. Judge Ito okayed television coverage. So literally everyone could effectively sit in the courtroom and observe the proceedings.
Courts have been experimenting with TV coverage as long as TV has been around. A couple of early experiments led to a circus atmosphere. For one thing, the lights had to be extremely bright for the TV cameras of the time to work. For another, lots of people played to the cameras rather than observing standard courtroom decorum. That led to most courts banning TV cameras most of the time.
But by the time of the OJ trial those sorts of problems had been ironed out. TV cameras had gotten a lot better so lighting did not need to be especially bright for everything to work. And everybody had gotten used to the process. Judges had developed effective techniques for keeping everyone in line. So the presence of TV cameras did not have a direct effect on the proceedings.
What did have an effect was that the audience could see and judge the behavior and effectiveness of the various players. And they did. And the score card had a profound effect on several of the key players. As I reported in my previous post, the reputation of F. Lee Bailey, up to this point considered a superstar lawyer, plummeted. He just didn't seem to have a good grasp of what an effective defense strategy would be. The person who did was Johnny Cochran. He went from being someone that no one had heard of to having the kind of superstar reputation that Bailey lost.
Bailey lost the most but Judge Ito was also a big looser. Again, as I laid out in my previous post, Ito received a failing grade from most observers for the way he managed his courtroom. Rather than rehash my previous post let me make two observations. The key prosecution witness was a cop named Mark Furman. It turns out Ito's wife had been his supervisor at one point and Furman was on record as having said derogatory things about her.
Th other observation I want to make is that Ito's behavior had a substantial negative effect on the prosecution's case and a substantial positive effect on the defense's case. This is probably a good thing in many cases as the prosecution has substantial resources and most defendants have few or none. The prosecution should be forced to make their case. On the other hand, if the prosecution has s solid case they should be allowed to put it on. Ito really didn't let the prosecution do this.
And that's not the worst of it. Furman entered Simpson's property even though it was secured by citing a combination of "probable cause" and "exigent circumstances". It is likely that they didn't exist. If the evidence obtained this way had been thrown out then it is not clear that the prosecution had a case. In my opinion, ruling that the evidence, and all evidence that followed from it, was inadmissible, would have resulted in the prosecution losing fairly.
Finally, Mr. Simpson was not a normal defendant. He was well known, had many powerful friends, and had substantial financial resources. In these cases there is no justification for the judge being anything but even handed.
Now let me move on to the second person named in my subject line, Mr. Ellis. He is Federal Judge Thomas Selby Ellis III. He is a "Senior" judge, which means he is semi-retired. This is appropriate because he is close to eighty years in age and has been a Federal judge for more than thirty years. What has brought Judge Ellis to my attention is that he was the presiding judge on one of two cases recently brought against Paul Manafort. It turns out that there are a surprising number of similarities between the Manafort and the OJ cases.
In both cases the Judge was much harder on the prosecution than on the defense. In both cases the defendant had the wealth and power to mount a substantial, well resourced, defense. And in both cases the prosecution was burdened with putting on a complicated case while the defense had a much easier time of it.
The venue in which Judge Ellis serves is notorious as being the home of the "rocket docket". Judges try hard to move cases through quickly. They try hard to get both sides to pare their cases down to a few key items in dispute and to provide a minimum of support for their view of the issue.
Again, in the abstract, this is a good thing. It is unjust to force defendants to wait long periods of time, often in jail, simply waiting for their case to come up. If cases are short then more cases can be heard in a year and the backlog can stay short and cases spend minimal time in scheduling limbo.
But again it is incumbent on the Judge to let the prosecution prove their case if they can. In the OJ case a serious argument can be made that the prosecution did not make their case. This is definitely not true in the Manafort case. The prosecution presented substantial and compelling evidence to support each and every aspect in their case. And, unlike in the OJ case, the Manafort team provided little or no reason to call any of the prosecution's case into question.
In the OJ case, Judge Ito was a fan of Johnny Cochran, the eventual lead defense attorney. In the Manafort case, the Judge regularly expressed the opinion that the crimes Manafort was being charged with were "chicken feed" (not his characterization but equivalent to what he did have to say). He also opined that the only reason Manafort was in front of him was because he was as a stepping stone to bigger fish. And not all of this happened out of the hearing of jurors.
And a case can be made that the Judge was right. It has long been the case that white collar crimes, anything illegal perpetrated by men in suits and not using violence, does tend to result in a light sentence. It is probably true that the Judge could find earlier cases prosecuted in his district that had resulted in sentences being handed down that were roughly in line with the sentence Manafort received.
But that's the problem. Lots of people have received far harsher sentences than Manafort's for crimes most of us would characterize as far less serious, There are lots of people serving hard time in the Federal Prison system for non-violent drug crimes. But that just makes it worse.
And the decades long effort to make sure that sentencing is uniform and appropriate is a response to this. That's why the federal sentencing guidelines exist. They can get it wrong. But this only comes about if there is something in a particular case that is not appropriately handled by the guidelines. There was nothing like this in Manafort's case.
The guidelines start with the "type" of each crime the defendant has been convicted of and assigns a score. The scores are added up to produce a preliminary sentencing range. Then adjustments are made based on "mitigating" and "aggravating" circumstances. This is an entirely mechanical process of so much for this and so much for that.
If a defendant does this (i. e. enter into and execute a "cooperation agreement" with the authorities, demonstrate an understanding of his crime and show true remorse, etc.) then then based on the type of mitigation, the sentencing range is adjusted down. If a defendant does that (i. e. is a repeat offender, attempts to tamper with a witness, etc.) then a similar process is used to adjust the sentencing range up.
This process was done in the Manafort case. In short, there were several aggravating factors and no mitigating factors. The defense team did not challenge any of the findings that went into the sentencing recommendation. The Judge had spent the entire trial haranguing the prosecution to speed things up and don't take any detours. So the prosecution kept is short and said "we agree with the sentencing guidelines as is" rather than spending a lot of time on the subject.
So what did the Judge do? He in effect threw the sentencing guidelines out the window and, on his own, issued a sentence that was roughly 20% as long as the guidelines. Judges are given wide discretion to reduce sentences but they are expected to provide justification. Technically, the Judge did provide a justification. But the justification was wholly inadequate.
The first thing he did was ignore or grossly mischaracterize facts entered into the record as the case proceeded. He characterized Manafort as having led a "blameless" life. The trial record says differently. Evidence was introduced of Manafort engaging in various criminal activities over at least a decade. These crimes were perpetrated solely to increase the wealth and power of Mr. Manafort. In short, they were the kinds of things a Mafia kingpin would do.
He made a lot of money promoting the activities of various thugs and criminals who spent a lot of time and effort in opposing the interests of the United States. So Manafort was manifestly anti-American. These people also spent a lot of time undermining and subverting the institutions on which civilization depends, things like the very court system that Judge Ellis is a key part of. This is hardly the behavior of a blameless man.
And then there is all the lawlessness he engaged in after he was convicted of eight crimes and pled guilty to a slew of others. He then chose to enter into a cooperation agreement with the authorities and violate it repeatedly.
On the other hand, the Judge assigned heavy weight to a number of routine letters of support. Anyone as rich, powerful, and well connected as Manafort would have no trouble wrangling such letters. I'm sure Mafiosi could too. And they would be similarly effusive. And similarly meaningless.
The only thing that sticks in this whole sorry mess is the Judge's contention that white collar crimes usually result in light sentences. This, unfortunately, is true. Horrible damage was done to the economy and the lives of many thousands of people by the wretched excesses of Wall Street that led to the crash of '08. Nobody, with the possible exception of a single low level flunky, went to jail. There were almost no prosecutions.
And that means that there is little reason for the people who perpetrated that great disaster and similar other lesser disasters have any reason to change their behavior. And they get paid outrageous sums to keep doing the same thing. We should not be surprised that rich and powerful people often engage in bad behavior. They have every reason to do so and, thanks to people like Judge Ellis, there is little likelihood that they will pay a heavy price for their bad behavior even if they are caught and convicted.
The reforms that led to the sentencing guidelines that the Judge ignored were one feeble attempt to put things right. And the Manafort case is the poster child for why prosecutors are reluctant to bring these kinds of cases. They are hard to develop. They take a lot of hours of work by skilled people to put together. They require the prosecution to place a complicated case before jurors, keep them from getting confused, and prove all the elements.
That is very hard to do. It is particularly hard if a Judge Ito is permitting the defense to throw in interruption after interruption. Or if a Judge Ellis is disparaging the fact that you even brought the case in the first place while simultaneously saying "move things along" and " stick only to the essentials".
And you have the results in these cases. OJ gets off completely. Manafort gets a ridiculously light sentence. And the Manafort case in particular was a slam dunk. The prosecution had extensive documentation (which they were repeatedly told to keep to a minimum) and compelling witnesses like "salt of the earth" employees of small businesses that Manafort did business with. The OJ case could have been a slam dunk if the LAPD had done high quality police work. But they didn't. Even so, that case was still pretty compelling.
In many cases white collar crimes are much messier. Multiple bad actors can be blamed. This is definitely true in the crash of '08. It wasn't caused by a single individual but by a whole corrupt system. But cases normally need to be brought individual by individual. The Manafort case involved substantial, voluminous, and substantially complete documentation. (Manafort's number two, Rick Gates, flipped and was able to provide invaluable assistance). In white collar crimes the record is often far from complete.
But white collar crimes are often more damaging to society than other types of crimes that are routinely dealt with far more harshly. And the Manafort case brought the dual nature of our justice system into sharp focus. There is one system of justice for Manafort and others with wealth, power, and a network of well connected friends. Then there is an entirely different system of justice for the poor, marginalized, and powerless.
Those people do not have the resources to mount the kind of defense Manafort did. His defense was incredibly weak. They did not seriously challenge a single aspect of the government's case. They certainly had the resources to locate and exploit any weaknesses. The only thing I can conclude is that there were no weaknesses in the prosecution's case.
But in the end what they did do was effective. They said Manafort was a nice, well educated, and successful man who had not been caught before and who knew a bunch of people who would attest to the fact that he was a family man and the kind of guy they liked to be associated with. That turned out to be enough to get 80% of Manafort's sentence to go away.
Ultimately the OJ case accelerated the change in the "news" away from news and toward sensationalism. It had no impact on how the LAPD did business or how courts, either at the state level or anywhere else, operated. OJ is out of jail, finally, but he is now an old man.
It remains to be seen what impact this particular case will have. I think it will not have much. Manafort was convicted of crimes in two jurisdictions. The sentencing phase has not yet taken place in the second jurisdiction. More importantly, "Manafort" is only a small star in the much larger galaxy of scandals that is the Trump Administration. If substantial change is going to occur, it will most likely be a consequence of the gravitational pull of the black hole that is at the center of this large assemblage.
Finally, both cases make even more clear that "justice" is in the eye of the beholder. There are lots of people that feel that the OJ case was decided correctly. There are lots of people that feel that the Manafort case was decided correctly. It no longer matters much what the facts in either case are. All too often today beliefs are held not because of the facts but rather in spite of the facts. That, more than anything else, needs to change.
Thursday, February 28, 2019
Metaeconomics - Wrap Up
I did three posts in early 2015 on what I called "Metaeconomics". I just felt that Economics, as practiced, lacked something fundamental. Generally, there was Micro-Economics, the study of the small and specific, and Macro-Economics, the study of the large and more general. But neither of them seemed to have anything approaching a "big picture" view of the economy as a whole. So I coined Meta-Economics in an effort to supply a truly big picture.
The effort was a failure. I am only now, roughly four years later, returning to the subject. Normally, I recommend going back to my older posts because I think they generally hold up well. I can't do that in this case. But, if you want to check them out anyhow, here are links to those earlier posts:
http://sigma5.blogspot.com/2015/01/metaeconomics-introduction.html,
http://sigma5.blogspot.com/2015/02/metaeconomics-panic-of-08.html,
http://sigma5.blogspot.com/2015/03/metaeconomics-markets.html.
The basic problem with Economics is that there has been no major breakthrough in more then 50 years. For a long time "Keynesian" Economics (named after John Maynard Keynes) dominated the field. The major ideas date back to the '30s. For a few decades "Friedman" Economics (named after Milton Friedman) supplanted it. It came to the forefront in roughly the '70s. And in the last few years, roughly since the crash of '08, Keynesian Economics has come back into style, and is again the most popular economic theory. There is no post-Keynes/Friedman economic theory that has been able to supplanting either or both of these old theories.
These theories contribute modestly to our understanding of the economy and have modest predictive power. In some periods Keynesian Economics has a better predictive track record. In other periods Friedman Economics has a better predictive track record. Both have suffered major misses. Both are only good for making predictions or providing explanations for the behavior of the economy as a whole. There mechanisms for keeping the economy on track are "raise taxes substantially" or "cut taxes substantially". These remedies are one step removed from operating some kind of simple on/off switch.
To provide a clearer picture of the dismal state of the "Dismal Science", a common nickname for the study of Economics, I am going to compare it with weather prediction.
A couple of hundred years ago weather prediction consisted of folk wisdom like "red sky at night, sailor's delight [good weather], red sky at morning, sailor's take warning [bad weather]". To this was added the dependence of the general state of the weather on the calendar. In the northern hemisphere it is generally colder in the winter and warmer in the summer. Events like the monsoon season tended to start and end at roughly the same time in the calendar year.
Slowly that situation improved. People studied and categorized clouds. They noticed that weather patterns tended to move from one area to another following roughly the same path. As they moved they tended to evolve in predictable ways. Things slowly evolved to the point where a one day forecast was pretty reliable in the '60s.
A contributing factor was the study of fluid dynamics, the way fluids like air behave, and the study of atmospheric chemistry. This led to a theoretical ability to predict the weather. The problem was that using "first principles" (the underlying chemistry and physics of the atmosphere) to predict the weather was impractical. It might take a hundred years on the fastest computer then available to perform the calculations necessary to accurately predict tomorrow's weather.
There was also a severe shortage of data. Sparse ground observations were available. A few readings from perhaps a thousand points in the US were available. The situation was even worse at sea. Many merchant ships collected basic weather data as they went about their business. But data was only available for the places the ship went and it was subject to delays sometimes measured in months.
Since then, two things have happened. First, satellite data collection has resulted in the availability of large amounts of data for all parts of the earth. And the data is available in near-real-time (a delay of perhaps an hour). And the most powerful computers have become very much more powerful that those available in the '60s. The super-computers now available can perform the exact same forecast calculation that would have taken a hundred years back then in something like a second.
So weather forecasts are now pretty good stretching out several days. And forecasts of seasonal (or longer) weather trends are remarkably good. And one of the things that has happened is that the "surprise factor" has been almost completely eliminated. In the '60s a major storm swept into my area with zero warning. More recently "Superstorm Sandy" was not accurately predicted (at least in the US) until it was almost upon us. But in both cases improvements have been made that make a repeat of either event unlikely.
Back then there was little satellite coverage of the Pacific Ocean off the Washington Coast. So the storm was invisible until it made landfall. Now satellite coverage is much better. But the key thing is that a weather radar has been installed on the Washington Coast that is capable of scanning out a hundred or so miles into the Ocean.
In the case of Superstorm Sandy, the biggest contributing factor was that the US only had access to wimpy super-computers in the Weather Bureau. The Europeans had a much better super-computer (and a somewhat better software). The US has since installed bigger super-computers and improved their software. Superstorm Sandy drove home the message that the US needed to up its game.
The situation in my neck of the woods is actually pretty good now. Forecasts are still off. But usually what is going on is that the forecast errs slightly in its prediction of when or where something is going happen. Completely missing a big storm, like what happened in the '60s, look to be a thing of the past. Still, small errors in location or timing can make a tremendous difference in people's lives.
In the recent snowfall in my area my sister, who lives a few tens of miles from me, got about five times as much snow as I did. I was able to get around in my four wheel drive Subaru if I really needed to. My sister, who owns a similar car, couldn't. The snow in her area was just too much for her car to handle. So a "small" difference in location translated to a large difference in the impact the storm had on people.
Tornados are small events. The touchdown area is perhaps a few hundred yards wide and a few miles long. The conditions that cause a tornado to form are little different from the conditions where no tornado forms. Small errors in distance, time, or conditions,can make the difference between life and death, or between being completely wiped out or suffering no damage at all. The same is true when it comes to predicting the time and place of landfall for a Hurricane. So getting it exactly right can be critically important. But still, getting it really close to right is a big improvement over "I have no clue".
Now consider the situation when it comes to Economics. There is no "big data" when it comes to economics. An economist can run the latest state of the art model on a five year old PC and get the result almost immediately. The models are relatively simple and the quality and quantity of data they have access to is similar to what weather forecasters had access to two hundred years ago.
If you gave the weather forecasting people a supercomputer that was a thousand times as fast as the ones they currently have access to they would have no problem keeping it busy. More importantly, they would use the massive increase in computing power to turn out noticeably better forecasts.
Weather forecasters have to hobble their software because they only have about eight hours to turn out a forecast for what's going to happen a day out. This forces them to make simplifications that substantially reduce the calculation's ability to get it right. They have to do this in order to keep the run time of the forecast acceptable.
With a supercomputer that was a thousand times faster, fewer simplifications would be necessary. That would make the forecast more realistic. And that would make it more accurate. An accurate forecast of what the weather will look like tomorrow that takes a week to run is useless.
Economists do not have this problem. They don't have to hobble their models to get them to finish in a timely manner. "Fast", in economic terms, is measured in days. Anything that can turn out a result in a few hours is fast enough. And pretty much any PC made in the last five years can do this for pretty much any economic model currently in use.
The problem is that there is little data to put into the models. So even performing an elaborate and complex analysis of this data doesn't take very long. This, coupled with economic models that are no more sophisticated than weather models of a couple of hundred years ago, results in economic forecasts that are not very reliable and don't tell you much.
Economies tend to evolve in a modestly predictable manner. The economy of one country has some influence on other countries. That's it. That's all. The result is that the crash of '08 was every bit as big of a surprise to economists as the storm that hit my part of the country all those decades ago. There is no Economics equivalent of the satellite data that forecasters use. There is no Economics equivalent of the "first principles" understanding of the economic equivalent of the chemistry and physics that undergirds weather models.
People who study the weather can calculate the average temperature for the US for a given year. It is useful in tracking Global Warming and for not much else. But they can also drill down to days and locations and tell you in great detail what happened. In fact, they generate the "US average temperature" by, in effect, summing up all those detailed numbers.
The Economists equivalent of this one number is the GDP (Gross Domestic Product - a commonly used measure of the size of the economy as a whole) for the entire US for a particular year. The difference is that's pretty much all Economists can tell you about the economic "weather". They can't drill down and tell you what's happening in this small piece of the economy on this specific day. Like average temperature for the year, GDP for the year tells you something useful. But it doesn't tell you anywhere near as much as having the economic equivalent of a daily weather forecast for each small piece of the economy would.
But, whereas pretty reliable daily forecasts of the weather in a relatively small area are available, economists have pretty much no clue as to what is happening on a day by day basis or for small parts of the economy. They can perhaps provide economic data for a state for a given month or quarter but finer grained data is just not available.
And if you don't have that kind of fine grained data, you can't do fine grained economic forecasts. And, since you can't do these kinds of forecasts you can't test various models to see what works best.
Everybody has been "scoring" weather forecasts for accuracy since before any of us were born. That feedback, this forecast got the right answer, that forecast got the wrong one, is the key to developing and testing competing theories of how weather works and, more importantly, how to forecast what it is going to do next. Weather theories that work poorly get discarded in favor of theories that work better. Sometimes "crazy" theories work better than sensible ones. In the absence of competitive testing, "sensible" economic theories persist even when it is pretty obvious that they have major problems.
Keynesians have been battling with the people who follow Friedman for many decades now. Both theories have major problems. Why haven't both been discarded in favor of a theory that works better than both? Because the ability of Economists to carefully test theories is so poor that both factions have insufficient reason to abandon their theory.
All each side knows is that the theory championed by the other side is "fatally flawed". There may be some looney sounding theory that works better than either. But it tends to get laughed out of the room without getting a serious test. And that's because a serious test, one that is truly convincing to all the experts, does not exist. There is always "sufficient reason" to not discard a theory. On the other hand, the evidence supporting a new theory is always judged to be insufficient. So little or no progress is made.
The economic equivalent to satellite weather data actually exists. Banks and bank-like entities process billions of money transactions each day using computers and databases. There is no technical reason why all this data can't be swept up and deposited into a central repository. If such a central repository existed, and if economists had access to it, this would be a game changer.
It would finally be possible to accurately and reliably report what the "economic" weather was on a certain day and in a certain small part of the economy. That, in and of itself, would be a massive change from the present state of affairs. Economists would finally have access to big data.
With accurate and reliable data for small parts of the economy and spanning small periods of time, it would be possible to start creating forecasts and testing them against the data. There would finally be a compelling reason to discard one economic model in favor of another. The criteria would shift from "is it sensible or not?" to "does is work or not?"
It would also provide the data on which "first principles" could be developed that serve a purpose similar to the fluid dynamics, chemistry, and physics, understanding that is possible with the weather. We could develop a theory of "money physics".
Various "money physics" theories have been developed at one time or another. But it has not been possible to subject them to the kind of credible and rigorous testing that is immediately convincing to a large majority of people in the field. It would be possible to shift the debate from "which theory do I like?" to "which theory works?" That's an environment in which real progress becomes possible.
What I am talking about here is a theoretical possibility. In theory, the data is available, but only in theory. No one has seriously proposed that somehow all this data be made widely available to scientists in a way analogous to the treatment of weather data. There are a whole host of reasons why it is presently inconceivable that such a thing would be allowed. I am not going to bother listing them.
But the economy is like the weather in the sense that a bunch of small scale events combine to create the big picture. People spend money, or not. People buy this and not that. Companies and governments behave similarly. The aggregate of all of these financial decisions is then combined according to "money physics" rules that we currently don't understand very well. The result is the amount of aggregate economic activity we see or don't see.
If you just say "tomorrow's weather is going to be exactly the same as today's" you will have about an eighty percent success rate at predicting the weather. Predicting economic activity is slightly more complicated. People's pattern economic activity depends on whether it's a "work" day or a "weekend" day, for instance. But if you make a couple of small adjustments to account for things like workday/weekend, then you can achieve a very accurate forecast of tomorrow's economic "weather". Unfortunately, professional economists are capable of little better than that. They often don't even do that well.
This ignorance costs us all. We all know that it should be possible to do better. Economics that works would allow us to discard economic policies that are harmful and replace them with policies that are helpful. The problem is that there is no way to convincingly rate economic policies on a harmful/helpful scale. So people get invested in one economic theory or another without having any real idea if the theory they favor is better or worse than the alternatives.
To the extent that we can tell, there are a lot of harmful policies being pursued. But the supporters of those policies can persuasively argue for their retention because the argument that the policy is harmful is on shaky ground. That's because the arguments for or against any particular economic policy are on shaky ground. So which policies are implemented and which are discarded depends more on the political power of supporters and detractors than anything else.
I'm out of ideas. More importantly, the profession seems to be out of ideas too. And this is in spite of the fact that the current "state of the art" in Economics is pretty bad. As a result, progress is unlikely. So, there isn't a good reason to continue the discussion of this subject. So, for the moment I am wrapping it up. If the situation changes, I'll reopen the subject.
If you want a ray of hope, geology was in bad shape in the '60s. Then Plate Tectonics came along "out of left field" and revolutionized things from top to bottom almost overnight. Geology has been an active field that has seen tremendous forward progress since. The thing about a "Plate Tectonics" type idea is that no one sees it coming. Economics could be revolutionized by a similar "no one saw that coming" idea at any time. I don't know what such an idea would look like but that's exactly the point.
The effort was a failure. I am only now, roughly four years later, returning to the subject. Normally, I recommend going back to my older posts because I think they generally hold up well. I can't do that in this case. But, if you want to check them out anyhow, here are links to those earlier posts:
http://sigma5.blogspot.com/2015/01/metaeconomics-introduction.html,
http://sigma5.blogspot.com/2015/02/metaeconomics-panic-of-08.html,
http://sigma5.blogspot.com/2015/03/metaeconomics-markets.html.
The basic problem with Economics is that there has been no major breakthrough in more then 50 years. For a long time "Keynesian" Economics (named after John Maynard Keynes) dominated the field. The major ideas date back to the '30s. For a few decades "Friedman" Economics (named after Milton Friedman) supplanted it. It came to the forefront in roughly the '70s. And in the last few years, roughly since the crash of '08, Keynesian Economics has come back into style, and is again the most popular economic theory. There is no post-Keynes/Friedman economic theory that has been able to supplanting either or both of these old theories.
These theories contribute modestly to our understanding of the economy and have modest predictive power. In some periods Keynesian Economics has a better predictive track record. In other periods Friedman Economics has a better predictive track record. Both have suffered major misses. Both are only good for making predictions or providing explanations for the behavior of the economy as a whole. There mechanisms for keeping the economy on track are "raise taxes substantially" or "cut taxes substantially". These remedies are one step removed from operating some kind of simple on/off switch.
To provide a clearer picture of the dismal state of the "Dismal Science", a common nickname for the study of Economics, I am going to compare it with weather prediction.
A couple of hundred years ago weather prediction consisted of folk wisdom like "red sky at night, sailor's delight [good weather], red sky at morning, sailor's take warning [bad weather]". To this was added the dependence of the general state of the weather on the calendar. In the northern hemisphere it is generally colder in the winter and warmer in the summer. Events like the monsoon season tended to start and end at roughly the same time in the calendar year.
Slowly that situation improved. People studied and categorized clouds. They noticed that weather patterns tended to move from one area to another following roughly the same path. As they moved they tended to evolve in predictable ways. Things slowly evolved to the point where a one day forecast was pretty reliable in the '60s.
A contributing factor was the study of fluid dynamics, the way fluids like air behave, and the study of atmospheric chemistry. This led to a theoretical ability to predict the weather. The problem was that using "first principles" (the underlying chemistry and physics of the atmosphere) to predict the weather was impractical. It might take a hundred years on the fastest computer then available to perform the calculations necessary to accurately predict tomorrow's weather.
There was also a severe shortage of data. Sparse ground observations were available. A few readings from perhaps a thousand points in the US were available. The situation was even worse at sea. Many merchant ships collected basic weather data as they went about their business. But data was only available for the places the ship went and it was subject to delays sometimes measured in months.
Since then, two things have happened. First, satellite data collection has resulted in the availability of large amounts of data for all parts of the earth. And the data is available in near-real-time (a delay of perhaps an hour). And the most powerful computers have become very much more powerful that those available in the '60s. The super-computers now available can perform the exact same forecast calculation that would have taken a hundred years back then in something like a second.
So weather forecasts are now pretty good stretching out several days. And forecasts of seasonal (or longer) weather trends are remarkably good. And one of the things that has happened is that the "surprise factor" has been almost completely eliminated. In the '60s a major storm swept into my area with zero warning. More recently "Superstorm Sandy" was not accurately predicted (at least in the US) until it was almost upon us. But in both cases improvements have been made that make a repeat of either event unlikely.
Back then there was little satellite coverage of the Pacific Ocean off the Washington Coast. So the storm was invisible until it made landfall. Now satellite coverage is much better. But the key thing is that a weather radar has been installed on the Washington Coast that is capable of scanning out a hundred or so miles into the Ocean.
In the case of Superstorm Sandy, the biggest contributing factor was that the US only had access to wimpy super-computers in the Weather Bureau. The Europeans had a much better super-computer (and a somewhat better software). The US has since installed bigger super-computers and improved their software. Superstorm Sandy drove home the message that the US needed to up its game.
The situation in my neck of the woods is actually pretty good now. Forecasts are still off. But usually what is going on is that the forecast errs slightly in its prediction of when or where something is going happen. Completely missing a big storm, like what happened in the '60s, look to be a thing of the past. Still, small errors in location or timing can make a tremendous difference in people's lives.
In the recent snowfall in my area my sister, who lives a few tens of miles from me, got about five times as much snow as I did. I was able to get around in my four wheel drive Subaru if I really needed to. My sister, who owns a similar car, couldn't. The snow in her area was just too much for her car to handle. So a "small" difference in location translated to a large difference in the impact the storm had on people.
Tornados are small events. The touchdown area is perhaps a few hundred yards wide and a few miles long. The conditions that cause a tornado to form are little different from the conditions where no tornado forms. Small errors in distance, time, or conditions,can make the difference between life and death, or between being completely wiped out or suffering no damage at all. The same is true when it comes to predicting the time and place of landfall for a Hurricane. So getting it exactly right can be critically important. But still, getting it really close to right is a big improvement over "I have no clue".
Now consider the situation when it comes to Economics. There is no "big data" when it comes to economics. An economist can run the latest state of the art model on a five year old PC and get the result almost immediately. The models are relatively simple and the quality and quantity of data they have access to is similar to what weather forecasters had access to two hundred years ago.
If you gave the weather forecasting people a supercomputer that was a thousand times as fast as the ones they currently have access to they would have no problem keeping it busy. More importantly, they would use the massive increase in computing power to turn out noticeably better forecasts.
Weather forecasters have to hobble their software because they only have about eight hours to turn out a forecast for what's going to happen a day out. This forces them to make simplifications that substantially reduce the calculation's ability to get it right. They have to do this in order to keep the run time of the forecast acceptable.
With a supercomputer that was a thousand times faster, fewer simplifications would be necessary. That would make the forecast more realistic. And that would make it more accurate. An accurate forecast of what the weather will look like tomorrow that takes a week to run is useless.
Economists do not have this problem. They don't have to hobble their models to get them to finish in a timely manner. "Fast", in economic terms, is measured in days. Anything that can turn out a result in a few hours is fast enough. And pretty much any PC made in the last five years can do this for pretty much any economic model currently in use.
The problem is that there is little data to put into the models. So even performing an elaborate and complex analysis of this data doesn't take very long. This, coupled with economic models that are no more sophisticated than weather models of a couple of hundred years ago, results in economic forecasts that are not very reliable and don't tell you much.
Economies tend to evolve in a modestly predictable manner. The economy of one country has some influence on other countries. That's it. That's all. The result is that the crash of '08 was every bit as big of a surprise to economists as the storm that hit my part of the country all those decades ago. There is no Economics equivalent of the satellite data that forecasters use. There is no Economics equivalent of the "first principles" understanding of the economic equivalent of the chemistry and physics that undergirds weather models.
People who study the weather can calculate the average temperature for the US for a given year. It is useful in tracking Global Warming and for not much else. But they can also drill down to days and locations and tell you in great detail what happened. In fact, they generate the "US average temperature" by, in effect, summing up all those detailed numbers.
The Economists equivalent of this one number is the GDP (Gross Domestic Product - a commonly used measure of the size of the economy as a whole) for the entire US for a particular year. The difference is that's pretty much all Economists can tell you about the economic "weather". They can't drill down and tell you what's happening in this small piece of the economy on this specific day. Like average temperature for the year, GDP for the year tells you something useful. But it doesn't tell you anywhere near as much as having the economic equivalent of a daily weather forecast for each small piece of the economy would.
But, whereas pretty reliable daily forecasts of the weather in a relatively small area are available, economists have pretty much no clue as to what is happening on a day by day basis or for small parts of the economy. They can perhaps provide economic data for a state for a given month or quarter but finer grained data is just not available.
And if you don't have that kind of fine grained data, you can't do fine grained economic forecasts. And, since you can't do these kinds of forecasts you can't test various models to see what works best.
Everybody has been "scoring" weather forecasts for accuracy since before any of us were born. That feedback, this forecast got the right answer, that forecast got the wrong one, is the key to developing and testing competing theories of how weather works and, more importantly, how to forecast what it is going to do next. Weather theories that work poorly get discarded in favor of theories that work better. Sometimes "crazy" theories work better than sensible ones. In the absence of competitive testing, "sensible" economic theories persist even when it is pretty obvious that they have major problems.
Keynesians have been battling with the people who follow Friedman for many decades now. Both theories have major problems. Why haven't both been discarded in favor of a theory that works better than both? Because the ability of Economists to carefully test theories is so poor that both factions have insufficient reason to abandon their theory.
All each side knows is that the theory championed by the other side is "fatally flawed". There may be some looney sounding theory that works better than either. But it tends to get laughed out of the room without getting a serious test. And that's because a serious test, one that is truly convincing to all the experts, does not exist. There is always "sufficient reason" to not discard a theory. On the other hand, the evidence supporting a new theory is always judged to be insufficient. So little or no progress is made.
The economic equivalent to satellite weather data actually exists. Banks and bank-like entities process billions of money transactions each day using computers and databases. There is no technical reason why all this data can't be swept up and deposited into a central repository. If such a central repository existed, and if economists had access to it, this would be a game changer.
It would finally be possible to accurately and reliably report what the "economic" weather was on a certain day and in a certain small part of the economy. That, in and of itself, would be a massive change from the present state of affairs. Economists would finally have access to big data.
With accurate and reliable data for small parts of the economy and spanning small periods of time, it would be possible to start creating forecasts and testing them against the data. There would finally be a compelling reason to discard one economic model in favor of another. The criteria would shift from "is it sensible or not?" to "does is work or not?"
It would also provide the data on which "first principles" could be developed that serve a purpose similar to the fluid dynamics, chemistry, and physics, understanding that is possible with the weather. We could develop a theory of "money physics".
Various "money physics" theories have been developed at one time or another. But it has not been possible to subject them to the kind of credible and rigorous testing that is immediately convincing to a large majority of people in the field. It would be possible to shift the debate from "which theory do I like?" to "which theory works?" That's an environment in which real progress becomes possible.
What I am talking about here is a theoretical possibility. In theory, the data is available, but only in theory. No one has seriously proposed that somehow all this data be made widely available to scientists in a way analogous to the treatment of weather data. There are a whole host of reasons why it is presently inconceivable that such a thing would be allowed. I am not going to bother listing them.
But the economy is like the weather in the sense that a bunch of small scale events combine to create the big picture. People spend money, or not. People buy this and not that. Companies and governments behave similarly. The aggregate of all of these financial decisions is then combined according to "money physics" rules that we currently don't understand very well. The result is the amount of aggregate economic activity we see or don't see.
If you just say "tomorrow's weather is going to be exactly the same as today's" you will have about an eighty percent success rate at predicting the weather. Predicting economic activity is slightly more complicated. People's pattern economic activity depends on whether it's a "work" day or a "weekend" day, for instance. But if you make a couple of small adjustments to account for things like workday/weekend, then you can achieve a very accurate forecast of tomorrow's economic "weather". Unfortunately, professional economists are capable of little better than that. They often don't even do that well.
This ignorance costs us all. We all know that it should be possible to do better. Economics that works would allow us to discard economic policies that are harmful and replace them with policies that are helpful. The problem is that there is no way to convincingly rate economic policies on a harmful/helpful scale. So people get invested in one economic theory or another without having any real idea if the theory they favor is better or worse than the alternatives.
To the extent that we can tell, there are a lot of harmful policies being pursued. But the supporters of those policies can persuasively argue for their retention because the argument that the policy is harmful is on shaky ground. That's because the arguments for or against any particular economic policy are on shaky ground. So which policies are implemented and which are discarded depends more on the political power of supporters and detractors than anything else.
I'm out of ideas. More importantly, the profession seems to be out of ideas too. And this is in spite of the fact that the current "state of the art" in Economics is pretty bad. As a result, progress is unlikely. So, there isn't a good reason to continue the discussion of this subject. So, for the moment I am wrapping it up. If the situation changes, I'll reopen the subject.
If you want a ray of hope, geology was in bad shape in the '60s. Then Plate Tectonics came along "out of left field" and revolutionized things from top to bottom almost overnight. Geology has been an active field that has seen tremendous forward progress since. The thing about a "Plate Tectonics" type idea is that no one sees it coming. Economics could be revolutionized by a similar "no one saw that coming" idea at any time. I don't know what such an idea would look like but that's exactly the point.
Sunday, February 10, 2019
Perry Mason - part 2
In 2016 I posted an article entitled "Perry Mason - part 1". Here's a link to it: http://sigma5.blogspot.com/2014/10/perry-mason-part-1.html. In it I argued that the "Perry Mason" stories are second only in their influence to the "Sherlock Holmes" stories. I think that statement still stands up. I also argued that, while the Mason stories did a lot of good, they also did a lot of harm.
For this post I want to expand on that latter conclusion, that they did a lot of harm. I will do so by examining a single Mason story in some detail. I have chosen "The Case of the Counterfeit Eye". The story was published in 1935, two years after Erle Stanley Gardner published his first Mason story, and well before Mason reached the peak of his popularity and influence. It is also the first story to feature District Attorney Hamilton Burger, Mason's most frequent courtroom adversary.
I am going to start by laying out a great deal of the plot and highlighting many of Mason's actions. I will then analyze these actions and indicate why I think this has caused a lot of harm. Here goes.
***** Start of the Summary of "The Case of the Counterfeit Eye"
A new client, Peter Brunold, appears in the office of Los Angeles based lawyer Perry Mason. He has a very fishy sounding story. He owns a set of high-quality glass eyes. One of them has been replaced by a cheap knockoff. He is worried that the theft will end up wrongly involving him in a crime. This is because the high-quality eye can be traced back to him.
He pays Mason a retainer of $1,500. In 1935 that represents the annual salary of an ordinary person, so it would be equivalent to $50,000 in today’s money. He has that much on his person in cash.
Perry offers to fix his problem by introducing two or more low quality glass eyes into the investigation in such a way as to confuse things and mislead the police. In other words, he offers to interfere with a legitimate police investigation.
In service of that he instructs Paul Drake, owner of the Drake Detective Agency, and for the entire series, Mason’s “go to” guy for investigative work and much else, to hire a hotel room under a false name and buy some cheap glass eyes in a manner that can’t be traced back to either Drake or Mason. Drake does so.
Brother and sister Harry and Bertha McLane next enter Mason’s office requesting his assistance. Their request at first seems completely unrelated but, as is common in Mason books, everything will end up all connected together by the end. They (they often operate as a tag team) request Mason’s assistance. They accuse another person, who we later learn is Hartley Basset, of blackmail, extortion, usury, and financing a smuggling operation. We later learn that the accusations are true.
Harry then confesses to the embezzlement of over $3,000 (we later learn the exact amount is just under $4,000) from Hartley (later murder victim number one). Harry also implicitly admits to gambling, then completely illegal. (This was before Las Vegas, for instance.)
Mason initially advises them to go to the authorities but changes his mind and decides “I’m going out . . . and compound a felony”.
Later Silvia Basset (wife of Hartley) asks Mason to assist her in committing bigamy. She also asks for help in suborning perjury in furtherance of the bigamy scheme.
Along the way Mason is threatened with assault, I believe by Dick Basset, son of Sylvia (but not by Hartley).
Still later Sylvia tells Mason over the phone that someone has been assaulted in her house. When that fails to get Mason to come running, she says that a murder is about to take place. If not stopped, Dick will murder Hartley. Mason comes running.
Mason breaks many traffic laws on the way to her house.
Upon his arrival a “38” revolver is brandished. The gun turns out to be unloaded but shells, including one that has been fired, are produced. Mason confiscates the gun and ammunition, but Sylvia eventually ends up with them.
The fact of the assault is confirmed. Hazel Fenwick, secretly the wife of Dick, has been assaulted by a “person unknown”. Mason phones the police asking them to send some officers. He identifies himself as “Richard Basset”, supposedly in an effort to speed up their response.
Before the police arrive the death of Hartley is discovered. There are indications that it is a suicide, but we later learn otherwise. There is a “confession” in support of the suicide hypothesis. But it is the usual (in murder mysteries, at least) typewritten and unsigned confession.
Subsequent investigation turns up a second gun which has also been fired. Additionally, it turns out that Hartley is wearing a third gun, which has not been fired.
Fenwick indicates that the man who assaulted her was wearing a hastily constructed carbon paper mask. The mask had two eyeholes and one of the eyeholes showed a socket rather than an eye. She was also able to tear the mask away, so she got a good look at her assailant, but the assailant did not get a good look at her.
Mason instructs Fenwick, a material witness, to leave the scene of the crime using his car and to go to his office. He arranges for Della Street, his personal secretary throughout the entire series, to be waiting there for her. We subsequently learn Fenwick never arrived.
Mason is present when Sylvia plants the first gun, now loaded, at the scene of the crime.
Mason then instructs Sylvia to lie to the police in a scheme to thwart their efforts to interview her.
Mason refuses to disclose the name of his client (Brunold) on the theory that it is not required in a case where the only crime is assault.
When the police determine that Hartley was murdered, Mason then discloses that he sent Fenwick to his office.
Drake finds out that Sylvia is staying in a specific room at a specific hotel under a specific fake name.
They both go there but determine that the police have an extensive surveillance operation in place. They find a way to talk to Sylvia anyway. The police eventually identify Mason. But Mason and Drake, using a variety of schemes, get away cleanly. Part of this process involves Drake picking the lock of a hotel room.
Drake’s subsequent investigation of Fenwick determines that she is actually a “black widow” who marries then murders men. He also determines a number of the names she has used in the past.
Mason instructs Drake to hire a ringer to impersonate Fenwick. She must be “hungry enough so she won’t argue” with whatever Mason asks of her. This might include illegal activities, but she is actually asked only to do legal things. Mason never makes it clear to her that she will only be asked to do legal but perhaps sketchy things. She agrees before knowing exactly what she will be asked to do and ultimately holds up her end of the deal.
The ringer is instructed to fly to Reno and register under her real name. If asked, she is instructed to deny being any of the aliases Drake has uncovered for Fenwick. But she is instructed to “accept service” of divorce papers intended for Fenwick and listing a number of her aliases. She is also instructed to “clam up” under police and press questioning and to fight extradition from Nevada to California.
Drake is also told to slip a “newspaper friend” $50 to take some pictures. The photographer is instructed to misrepresent who he is working for and say the pictures are for a newspaper story. The pictures are to be taken of a specific group of people in a very specific way.
Mason disguises the actual reason for the pictures to everyone. He wants to determine if any of the photographed people has a glass eye. Mason’s primary client, Brunold, is missing an eye. Brunold’s missing glass eye was found clutched in the hand of the murdered Hartley.
Harry calls Mason and discloses that he is staying in a specific room of a specific hotel under a specific fake name. Harry orders Mason to come, which he does. There he finds Harry murdered.
Mason plants one of the glass eyes Drake procured earlier in Harry’s dead hand. He then determines that the police have another surveillance operation under way. So, he engages in an elaborate ruse so that he appears to have a legitimate reason to be at the hotel. The ruse is also supposed to fool the police into believing he didn’t get to the murder scene first. The ruse succeeds so the police think they got to the murder scene before Mason did.
We then skip forward to the preliminary court hearing. Mason has arranged for the authorities to catch up with his Fenwick ringer just as the court proceedings are reaching a critical stage. Drake serves the divorce papers on her in Reno, but he thinks he has screwed up because the press and the authorities are lying in wait when he gets to her hotel room. He also appears to not recognize the ringer he found in the first place. (My best guess is that Drake’s failure to recognize her is just a continuity mistake on Gardner’s part.)
Burger accuses Mason of witness tampering and other unprofessional and perhaps illegal behavior. For instance, Mason has repeatedly instructed his fake Fenwick to “take the fifth”, which she does. Burger serves a subpoena to Mason in open court in the middle of the preliminary hearing on Harley’s murder. The subpoena directs Mason to appear before a Grand Jury and explain himself. Of course, things never get that far because everything is straightened out before the Grand Jury hearing can even be scheduled.
But this behavior gives Mason an opening to discourse in open court on his theory of the case. This permits him to get critical material introduced into the record that he might not otherwise have been able to.
A short time later in the presiding Judge’s quarters Mason is able to name the real murderer, James Overton. He has a military and police background and was hired by Hartley ostensibly as the chauffeur. He was actually there to spy on Hartley’s wife. In the course of his spying he learned and did things he shouldn’t have. He also has a glass eye.
He is killed in a shootout as he is trying to flee.
Overton was involved with Harry in the embezzlement scheme. So, all three bad guys, Hartley, Harry, and Overton end up dead. Justice triumphs and everything ends up tied up neatly into a bow.
***** End of the Summary of "The Case of the Counterfeit Eye"
I will not pretend this covers every development in the book. But it gives you enough to loosely follow the story. And it includes all of the Mason activities I find problematic.
As I mentioned in my previous post, Mason has a near-infallible lie detector. This gets a lot of use in this (and pretty much all the other) Mason stories. The story starts with his primary client telling what is obviously a lie. Mason must separate truth from fiction. Why would he even want such a client (other than the obvious reason that he is rich and is willing to pay Mason well)?
And what's Mason's proposed solution? To interfere with a legitimate investigation by planting false evidence. And he brings Drake onboard as an accomplice.
The second set of clients (the McLane siblings) fall into a similar category. They are up front about the fact that they want assistance in getting away with various crimes. And along the way they indicate that a third party, Hartley the soon to be murder victim, is up to his neck in criminality. And Mason's response is to promise to compound a felony. Compounding a felony is a crime and constitutes the highest level of unethical behavior by a lawyer.
And then there is the conflict of interest. Mason originally agrees to represent Brunold. Then he agrees to undertake legal duties for the McLanes, one of which is both a bad guy and gets murdered. But conveniently by this time Mason mostly confines himself to being in the sister's corner. And Mason is providing legal assistance to Sylvia and, at least to a modest extent, to Fenwick, Fenwick is eventually exposed as a "black widow" and a murderer. Fortunately (?), she doesn't murder any of the characters in this book.
Will the crimes ever cease? Nope! Traffic laws are broken. Since no one was harmed and Mason wasn't caught I suppose they don't count. But Mason is an accessory to the planting of evidence. He spirits a material witness away from the authorities. He councils someone to lie when being questioned. He is an accomplice to Drake using lock picks to "break and enter" a hotel room. He personally plants evidence at the scene of a crime after going to elaborate efforts to be in a position to do so. Specifically, he has Drake use deception to procure a cheap glass eye.
He seeks out and hires a woman so desperate she is willing to engage in unspecified illegal behavior. The fact that ultimately she does not have to do anything illegal doesn't mitigate the fact that Mason went out of his way to find someone so desperate that she was willing to do something illegal simply for the promise of a generous payoff. It was the middle of the Great Depression and lots of people were truly desperate. Mason has no compunction about taking advantage of this.
Everybody lies. Everybody schemes. No one seems to feel they are bound by the laws or the canons of ethics, judicial or otherwise. Everyone from a desperate woman to a newspaper photographer can be bought. In other Mason stories cops are "tipped" $20 for a favor and expensive cigars are delivered to the Office of the District Attorney in exchange for other favors.
Mason happily plays in this "law of the jungle" world. He is happy to do what it takes to get his client off. The final justification is that his client is innocent. The problem is that this kind of behavior on one side justifies similar behavior on the other side.
And in reading this or other Mason books it is startlingly obvious that all this activity takes place in a small club whose members consist of the entitled, their associates, and their employees. Mason couldn't do what he does if he didn't have a lot of money to throw around. The Fenwick ringer is paid $500, a fantastic amount of money at the time. Drake at one time says he has 20 operatives investigating something Mason is interested in. People fly back and forth to Reno, on one occasion in a chartered plane that is the "fastest one available". Air travel at that time was extremely expensive. And so it goes.
This can only happen if there is a small club of the rich and powerful who play by one set of rules while everyone else plays by different rules. Mason calls the cops and expects them to show up quickly, which they do. Why? Because he is calling from a rich man's house. The rich man employs a maid, secretary, and chauffeur that we know of. There are likely three or four full time staff around that fail to make an appearance. This is not "lifestyles of average folk". At this time most people didn't even own a car. Della Street, Mason's private secretary owns a fur coat but no car.
Only rich (and white) people have the time and resources with which to engage in as much bad behavior as we see on display here. One "rich adjacent" person manages to run up gambling debts amounting to almost $4,000. As I commented above, at the time this was roughly three times the annual salary of an ordinary person. (One person in the story is earning $70 per month and another person is earning $100 per month.)
All of Mason's actions are ultimately justified because his client actually is innocent and, therefore, being unjustly accused. That, and because Mason ultimately does expose what truly happened and who is truly guilty. And if in the real world everybody was rich and the government had nearly unlimited resources with which to investigate each crime (in this story two different surveillance operations are mounted with teams that in each case amounted to several people) then the kinds of rules on display here might possibly be appropriate.
But, as I indicated previously, that is rarely the case in the real world. In reality both sides are severely resource constrained. The cops would like to investigate more crimes and more thoroughly investigate the crimes they do investigate. The same is true of District Attorney's offices. They would like to throw more resources at more cases but they have a finite budget. So in both cases priorities are imposed that mean many cases are not investigated or are only superficially investigated. And most District Attorney's offices tend to focus on "slam dunk" cases while only occasionally taking on a complicated high profile case that might not be a slam dunk.
And the practical result is that complicated cases get short shrift. A potential defendant can make any case look complicated if he has the power and/or wealth to throw a lot of resources at it. So poor people get prosecuted because they don't have the resources to put up a serious fight. They may not even have bail money or money to pay traffic tickets on time.
Going after some poor schmuck who ran into a piece of bad luck is easy. Going after a rich SOB who will "fight you all the way to the Supreme Court" only rarely happens. It doesn't matter that the poor person's crime may amount to nothing and the rich person's crime may have horrific consequences.
This plays out all the time. People are still routinely jailed over small amounts of pot. Even in jurisdictions like the one I live in(Seattle) where pot is now legal, poor people are hassled for things like broken tail lights or parking in the wrong place or whatever. They committed the crime.
But pretty much no one involved in the Mortgage meltdown of several years ago went to jail. Yet banks foreclosed on mortgagors who were actually current on their payments. People were sold mortgages with terrible terms when they qualified for ones with much better terms. Bank fraud was uncovered. Junk securities were sold as investment grade when they weren't. And on and on and on. These crimes had awful consequences. But they were complicated and the cases were hard to win. The result in almost all cases was a decision to not bother prosecuting.
People like Michael Cohen make a very good living by using pit bull tactics against people of lesser means. The fact that people like Cohen routinely engage in illegal or unethical behavior normally results in no investigation and almost certainly in no sanctions. The rich and powerful look out for the rich and powerful. The rest of us are on our own.
And Mason definitely operated in the world of the rich and powerful. And he popularized many of the pit bull tactics that people like Michael Cohen used several generations later. In Mason's world these tactics were used against other members of the club. In the real world that never happens. People like Cohen and the people who employ people like Cohen don't go after other people like themselves. They go after people who are not sufficiently resourced to fight back. They know they will almost always win because the system is rigged to make sure they almost always win.
But if you want to see a Mason-like fight that is happening in the real world I do have a suggestion for you. Jeff Bezos, CEO of Amazon and multibillionaire, is going after the extremely well connected and very powerful millionaire David Pecker and the company he runs, AMI. Bezos has The Washington Post in his corner. Pecker has The National Inquirer in his corner. Now that's a contest where the fighters are much more evenly matched.
For this post I want to expand on that latter conclusion, that they did a lot of harm. I will do so by examining a single Mason story in some detail. I have chosen "The Case of the Counterfeit Eye". The story was published in 1935, two years after Erle Stanley Gardner published his first Mason story, and well before Mason reached the peak of his popularity and influence. It is also the first story to feature District Attorney Hamilton Burger, Mason's most frequent courtroom adversary.
I am going to start by laying out a great deal of the plot and highlighting many of Mason's actions. I will then analyze these actions and indicate why I think this has caused a lot of harm. Here goes.
***** Start of the Summary of "The Case of the Counterfeit Eye"
A new client, Peter Brunold, appears in the office of Los Angeles based lawyer Perry Mason. He has a very fishy sounding story. He owns a set of high-quality glass eyes. One of them has been replaced by a cheap knockoff. He is worried that the theft will end up wrongly involving him in a crime. This is because the high-quality eye can be traced back to him.
He pays Mason a retainer of $1,500. In 1935 that represents the annual salary of an ordinary person, so it would be equivalent to $50,000 in today’s money. He has that much on his person in cash.
Perry offers to fix his problem by introducing two or more low quality glass eyes into the investigation in such a way as to confuse things and mislead the police. In other words, he offers to interfere with a legitimate police investigation.
In service of that he instructs Paul Drake, owner of the Drake Detective Agency, and for the entire series, Mason’s “go to” guy for investigative work and much else, to hire a hotel room under a false name and buy some cheap glass eyes in a manner that can’t be traced back to either Drake or Mason. Drake does so.
Brother and sister Harry and Bertha McLane next enter Mason’s office requesting his assistance. Their request at first seems completely unrelated but, as is common in Mason books, everything will end up all connected together by the end. They (they often operate as a tag team) request Mason’s assistance. They accuse another person, who we later learn is Hartley Basset, of blackmail, extortion, usury, and financing a smuggling operation. We later learn that the accusations are true.
Harry then confesses to the embezzlement of over $3,000 (we later learn the exact amount is just under $4,000) from Hartley (later murder victim number one). Harry also implicitly admits to gambling, then completely illegal. (This was before Las Vegas, for instance.)
Mason initially advises them to go to the authorities but changes his mind and decides “I’m going out . . . and compound a felony”.
Later Silvia Basset (wife of Hartley) asks Mason to assist her in committing bigamy. She also asks for help in suborning perjury in furtherance of the bigamy scheme.
Along the way Mason is threatened with assault, I believe by Dick Basset, son of Sylvia (but not by Hartley).
Still later Sylvia tells Mason over the phone that someone has been assaulted in her house. When that fails to get Mason to come running, she says that a murder is about to take place. If not stopped, Dick will murder Hartley. Mason comes running.
Mason breaks many traffic laws on the way to her house.
Upon his arrival a “38” revolver is brandished. The gun turns out to be unloaded but shells, including one that has been fired, are produced. Mason confiscates the gun and ammunition, but Sylvia eventually ends up with them.
The fact of the assault is confirmed. Hazel Fenwick, secretly the wife of Dick, has been assaulted by a “person unknown”. Mason phones the police asking them to send some officers. He identifies himself as “Richard Basset”, supposedly in an effort to speed up their response.
Before the police arrive the death of Hartley is discovered. There are indications that it is a suicide, but we later learn otherwise. There is a “confession” in support of the suicide hypothesis. But it is the usual (in murder mysteries, at least) typewritten and unsigned confession.
Subsequent investigation turns up a second gun which has also been fired. Additionally, it turns out that Hartley is wearing a third gun, which has not been fired.
Fenwick indicates that the man who assaulted her was wearing a hastily constructed carbon paper mask. The mask had two eyeholes and one of the eyeholes showed a socket rather than an eye. She was also able to tear the mask away, so she got a good look at her assailant, but the assailant did not get a good look at her.
Mason instructs Fenwick, a material witness, to leave the scene of the crime using his car and to go to his office. He arranges for Della Street, his personal secretary throughout the entire series, to be waiting there for her. We subsequently learn Fenwick never arrived.
Mason is present when Sylvia plants the first gun, now loaded, at the scene of the crime.
Mason then instructs Sylvia to lie to the police in a scheme to thwart their efforts to interview her.
Mason refuses to disclose the name of his client (Brunold) on the theory that it is not required in a case where the only crime is assault.
When the police determine that Hartley was murdered, Mason then discloses that he sent Fenwick to his office.
Drake finds out that Sylvia is staying in a specific room at a specific hotel under a specific fake name.
They both go there but determine that the police have an extensive surveillance operation in place. They find a way to talk to Sylvia anyway. The police eventually identify Mason. But Mason and Drake, using a variety of schemes, get away cleanly. Part of this process involves Drake picking the lock of a hotel room.
Drake’s subsequent investigation of Fenwick determines that she is actually a “black widow” who marries then murders men. He also determines a number of the names she has used in the past.
Mason instructs Drake to hire a ringer to impersonate Fenwick. She must be “hungry enough so she won’t argue” with whatever Mason asks of her. This might include illegal activities, but she is actually asked only to do legal things. Mason never makes it clear to her that she will only be asked to do legal but perhaps sketchy things. She agrees before knowing exactly what she will be asked to do and ultimately holds up her end of the deal.
The ringer is instructed to fly to Reno and register under her real name. If asked, she is instructed to deny being any of the aliases Drake has uncovered for Fenwick. But she is instructed to “accept service” of divorce papers intended for Fenwick and listing a number of her aliases. She is also instructed to “clam up” under police and press questioning and to fight extradition from Nevada to California.
Drake is also told to slip a “newspaper friend” $50 to take some pictures. The photographer is instructed to misrepresent who he is working for and say the pictures are for a newspaper story. The pictures are to be taken of a specific group of people in a very specific way.
Mason disguises the actual reason for the pictures to everyone. He wants to determine if any of the photographed people has a glass eye. Mason’s primary client, Brunold, is missing an eye. Brunold’s missing glass eye was found clutched in the hand of the murdered Hartley.
Harry calls Mason and discloses that he is staying in a specific room of a specific hotel under a specific fake name. Harry orders Mason to come, which he does. There he finds Harry murdered.
Mason plants one of the glass eyes Drake procured earlier in Harry’s dead hand. He then determines that the police have another surveillance operation under way. So, he engages in an elaborate ruse so that he appears to have a legitimate reason to be at the hotel. The ruse is also supposed to fool the police into believing he didn’t get to the murder scene first. The ruse succeeds so the police think they got to the murder scene before Mason did.
We then skip forward to the preliminary court hearing. Mason has arranged for the authorities to catch up with his Fenwick ringer just as the court proceedings are reaching a critical stage. Drake serves the divorce papers on her in Reno, but he thinks he has screwed up because the press and the authorities are lying in wait when he gets to her hotel room. He also appears to not recognize the ringer he found in the first place. (My best guess is that Drake’s failure to recognize her is just a continuity mistake on Gardner’s part.)
Burger accuses Mason of witness tampering and other unprofessional and perhaps illegal behavior. For instance, Mason has repeatedly instructed his fake Fenwick to “take the fifth”, which she does. Burger serves a subpoena to Mason in open court in the middle of the preliminary hearing on Harley’s murder. The subpoena directs Mason to appear before a Grand Jury and explain himself. Of course, things never get that far because everything is straightened out before the Grand Jury hearing can even be scheduled.
But this behavior gives Mason an opening to discourse in open court on his theory of the case. This permits him to get critical material introduced into the record that he might not otherwise have been able to.
A short time later in the presiding Judge’s quarters Mason is able to name the real murderer, James Overton. He has a military and police background and was hired by Hartley ostensibly as the chauffeur. He was actually there to spy on Hartley’s wife. In the course of his spying he learned and did things he shouldn’t have. He also has a glass eye.
He is killed in a shootout as he is trying to flee.
Overton was involved with Harry in the embezzlement scheme. So, all three bad guys, Hartley, Harry, and Overton end up dead. Justice triumphs and everything ends up tied up neatly into a bow.
***** End of the Summary of "The Case of the Counterfeit Eye"
I will not pretend this covers every development in the book. But it gives you enough to loosely follow the story. And it includes all of the Mason activities I find problematic.
As I mentioned in my previous post, Mason has a near-infallible lie detector. This gets a lot of use in this (and pretty much all the other) Mason stories. The story starts with his primary client telling what is obviously a lie. Mason must separate truth from fiction. Why would he even want such a client (other than the obvious reason that he is rich and is willing to pay Mason well)?
And what's Mason's proposed solution? To interfere with a legitimate investigation by planting false evidence. And he brings Drake onboard as an accomplice.
The second set of clients (the McLane siblings) fall into a similar category. They are up front about the fact that they want assistance in getting away with various crimes. And along the way they indicate that a third party, Hartley the soon to be murder victim, is up to his neck in criminality. And Mason's response is to promise to compound a felony. Compounding a felony is a crime and constitutes the highest level of unethical behavior by a lawyer.
And then there is the conflict of interest. Mason originally agrees to represent Brunold. Then he agrees to undertake legal duties for the McLanes, one of which is both a bad guy and gets murdered. But conveniently by this time Mason mostly confines himself to being in the sister's corner. And Mason is providing legal assistance to Sylvia and, at least to a modest extent, to Fenwick, Fenwick is eventually exposed as a "black widow" and a murderer. Fortunately (?), she doesn't murder any of the characters in this book.
Will the crimes ever cease? Nope! Traffic laws are broken. Since no one was harmed and Mason wasn't caught I suppose they don't count. But Mason is an accessory to the planting of evidence. He spirits a material witness away from the authorities. He councils someone to lie when being questioned. He is an accomplice to Drake using lock picks to "break and enter" a hotel room. He personally plants evidence at the scene of a crime after going to elaborate efforts to be in a position to do so. Specifically, he has Drake use deception to procure a cheap glass eye.
He seeks out and hires a woman so desperate she is willing to engage in unspecified illegal behavior. The fact that ultimately she does not have to do anything illegal doesn't mitigate the fact that Mason went out of his way to find someone so desperate that she was willing to do something illegal simply for the promise of a generous payoff. It was the middle of the Great Depression and lots of people were truly desperate. Mason has no compunction about taking advantage of this.
Everybody lies. Everybody schemes. No one seems to feel they are bound by the laws or the canons of ethics, judicial or otherwise. Everyone from a desperate woman to a newspaper photographer can be bought. In other Mason stories cops are "tipped" $20 for a favor and expensive cigars are delivered to the Office of the District Attorney in exchange for other favors.
Mason happily plays in this "law of the jungle" world. He is happy to do what it takes to get his client off. The final justification is that his client is innocent. The problem is that this kind of behavior on one side justifies similar behavior on the other side.
And in reading this or other Mason books it is startlingly obvious that all this activity takes place in a small club whose members consist of the entitled, their associates, and their employees. Mason couldn't do what he does if he didn't have a lot of money to throw around. The Fenwick ringer is paid $500, a fantastic amount of money at the time. Drake at one time says he has 20 operatives investigating something Mason is interested in. People fly back and forth to Reno, on one occasion in a chartered plane that is the "fastest one available". Air travel at that time was extremely expensive. And so it goes.
This can only happen if there is a small club of the rich and powerful who play by one set of rules while everyone else plays by different rules. Mason calls the cops and expects them to show up quickly, which they do. Why? Because he is calling from a rich man's house. The rich man employs a maid, secretary, and chauffeur that we know of. There are likely three or four full time staff around that fail to make an appearance. This is not "lifestyles of average folk". At this time most people didn't even own a car. Della Street, Mason's private secretary owns a fur coat but no car.
Only rich (and white) people have the time and resources with which to engage in as much bad behavior as we see on display here. One "rich adjacent" person manages to run up gambling debts amounting to almost $4,000. As I commented above, at the time this was roughly three times the annual salary of an ordinary person. (One person in the story is earning $70 per month and another person is earning $100 per month.)
All of Mason's actions are ultimately justified because his client actually is innocent and, therefore, being unjustly accused. That, and because Mason ultimately does expose what truly happened and who is truly guilty. And if in the real world everybody was rich and the government had nearly unlimited resources with which to investigate each crime (in this story two different surveillance operations are mounted with teams that in each case amounted to several people) then the kinds of rules on display here might possibly be appropriate.
But, as I indicated previously, that is rarely the case in the real world. In reality both sides are severely resource constrained. The cops would like to investigate more crimes and more thoroughly investigate the crimes they do investigate. The same is true of District Attorney's offices. They would like to throw more resources at more cases but they have a finite budget. So in both cases priorities are imposed that mean many cases are not investigated or are only superficially investigated. And most District Attorney's offices tend to focus on "slam dunk" cases while only occasionally taking on a complicated high profile case that might not be a slam dunk.
And the practical result is that complicated cases get short shrift. A potential defendant can make any case look complicated if he has the power and/or wealth to throw a lot of resources at it. So poor people get prosecuted because they don't have the resources to put up a serious fight. They may not even have bail money or money to pay traffic tickets on time.
Going after some poor schmuck who ran into a piece of bad luck is easy. Going after a rich SOB who will "fight you all the way to the Supreme Court" only rarely happens. It doesn't matter that the poor person's crime may amount to nothing and the rich person's crime may have horrific consequences.
This plays out all the time. People are still routinely jailed over small amounts of pot. Even in jurisdictions like the one I live in(Seattle) where pot is now legal, poor people are hassled for things like broken tail lights or parking in the wrong place or whatever. They committed the crime.
But pretty much no one involved in the Mortgage meltdown of several years ago went to jail. Yet banks foreclosed on mortgagors who were actually current on their payments. People were sold mortgages with terrible terms when they qualified for ones with much better terms. Bank fraud was uncovered. Junk securities were sold as investment grade when they weren't. And on and on and on. These crimes had awful consequences. But they were complicated and the cases were hard to win. The result in almost all cases was a decision to not bother prosecuting.
People like Michael Cohen make a very good living by using pit bull tactics against people of lesser means. The fact that people like Cohen routinely engage in illegal or unethical behavior normally results in no investigation and almost certainly in no sanctions. The rich and powerful look out for the rich and powerful. The rest of us are on our own.
And Mason definitely operated in the world of the rich and powerful. And he popularized many of the pit bull tactics that people like Michael Cohen used several generations later. In Mason's world these tactics were used against other members of the club. In the real world that never happens. People like Cohen and the people who employ people like Cohen don't go after other people like themselves. They go after people who are not sufficiently resourced to fight back. They know they will almost always win because the system is rigged to make sure they almost always win.
But if you want to see a Mason-like fight that is happening in the real world I do have a suggestion for you. Jeff Bezos, CEO of Amazon and multibillionaire, is going after the extremely well connected and very powerful millionaire David Pecker and the company he runs, AMI. Bezos has The Washington Post in his corner. Pecker has The National Inquirer in his corner. Now that's a contest where the fighters are much more evenly matched.
Saturday, January 12, 2019
Shutdown Endgame
I am writing this on a weekend. We are currently engaged in a partial shutdown of the Federal Government. As I start writing this post this particular shutdown is now officially the longest on record. And no one knows how or when it is going to end. We weren't supposed to get here. But here we are.
The basic motivation for starting this blog was to provide a counter narrative when I thought a large percentage of what was being said about something was nonsense or ill informed. This morning it occurred to me that "the shutdown" definitely qualifies. I have seen a lot of noise and hot air and little intelligent analysis on the subject. So here's what I have to say.
Consider the unthinkable. Some event, either in its basic nature or in its consequences, is so horrendous that any reasonable person will feel compelled to do whatever is necessary to make sure it does not come to pass.
In political parlance, we used to have the "must pass" bill. Not passing the bill was unthinkable. So, if compromises must be made then they must be made. So a long standing trick employed by smart legislators was to attach a "rider" to a must pass bill. (A rider is a small addition that may or may not have anything to do with the main bill.) But the point is that if you succeeded in getting the rider attached, you were pretty much guaranteed it would become law. The "must pass" bill must pass, so it will.
Warren G. Magnuson, a long time Senator from my state (he died in 1981) was famous for doing this. And, as long as it was used sparingly, people grumbled but that was about it. And someone like Magnuson was accorded grudging respect for being a canny legislator. And the tactic worked in Magnuson's day because "must pass" legislation passed. Why? Because it was unthinkable to not pass a "must pass" bill. So people grumbled and complained. But in the end the bill passed.
But this was an abuse of power. It was just a traditional abuse of power that over time got accepted as one of those things that everybody just had to learn to live with. And Magnuson was careful to only occasionally resort to this tactic. And he only did it on relatively small and relatively noncontroversial issues. A bridge in Seattle got wrecked unexpectedly. Magnuson snuck funding in a rider to a "must pass" bill that put the Federal Government on the hook for paying most of the cost of the replacement.
So, other than resorting to the underhanded trick of slipping a rider into a "must pass" bill, it was standard issue pork barrel politics. The amount of money was in line with other pork barrel projects being pushed by other legislators. And that's the way things used to work.
But then some smart people asked themselves just how far this sort of thing could be pushed. How about asking for something that would otherwise have been completely unreasonable? The responsible people would end up sucking it up and voting for the bill even though it now included some horrible component because it was "must pass". (If you want an example, liberals think the "Hyde Amendment" is horrible. Conservatives can site examples of things they find equally horrible.) For a long time this worked. "Must pass" was must pass, until it wasn't.
For a long time funding the government by passing "appropriations" bills on time every year was considered "must pass". It was unimaginable to leave the government unfunded, wasn't it? But over time the brinksmanship kept getting ratchetted up. Before continuing, let's take a moment to understand how the process is supposed to work.
The Fiscal Year for the Federal Government runs from October 1 of one year through September 30 of the next. The appropriations process starts with the President submitting a detailed budget request in late January or early February. This is turned into a Budget Resolution by the House Ways and Means committee and the Senate Finance committee. The Budget resolution is strictly internal to Congress and provides guidance to the various appropriations committees as to how much money they have to spend.
At the same time the budget is broken up into about a dozen "appropriations" bills, roughly one for each cabinet department. These department level budgets are processed by the various congressional committees that have oversight responsibility for the department in question. They hold hearings and go through a "markup" process (making technical - and frequently not so technical - changes) to the budget bill that covers their area of responsibility.
So the Department of Defense gets its budget bill. The State Department gets its budget bill. And so on. When the Budget Resolution is finished and agreed to by the House and the Senate each appropriations bill is expected to conform to the guidance contained in the Budget Resolution.
Generally speaking, work on the Budget Resolution will wrap up in June. Each appropriations bill goes through the House first (the Constitution requires this) and then moves along to the Senate. The Senate can, and usually does, make changes. A "reconciliation" committee consisting of members from both the House and the Senate is now formed to iron out the differences and produce a single bill. This final version goes back to each body for "final passage". If that goes according to form it goes to the President for signature.
The President usually signs it but can veto it. If the bill is vetoed then supermajorities of both the House and the Senate can override the veto. Or Congress can rework the bill and pass the updated version back to the White House for signature. Typically appropriations start becoming law in August. All of them are wrapped up by the end of September. When that happens all is well and the entirety of the government is funded for one more fiscal year. Of course, the whole thing starts over a few months later.
It's a complicated process. And the farther along you get the more rigid it gets. The House and Senate appropriations bills can be amended right up until the moment they pass. But whatever comes out of the reconciliation process is carved in stone. Congress can also make no modification to a bill that has been vetoed if they want to override the veto. What this means is that one of the best points to insert a rider is in the reconciliation process. If you can get it by your fellow committee members you are pretty much home free.
I think you can see why the whole process starts many months before the due date of October 1. And the closer October 1 comes the less practical flexibility there is. So inserting (or deleting) your change as close to the last minute as you can manage is the best way to make sure it survives the process. And this late stage leverage, if you have it, means that lots of people find it advantageous to delay things until the absolute last minute.
Power players have long known this. The result is that the orderly process I have outlined above has been breaking down more and more often. More and more appropriations bills are passed out of Congress late in September. And the process can break down even further. What if an appropriations bill is literally not ready. Enter the Continuing Resolution (CR).
A CR is a super simple bill that just says "keep funding everything at the old levels with no change". That is a "clean CR. It is also possible to add riders. It is only practical to add a few. But they represent too good of an opportunity to pass up. So a CR is a great place to insert a rider. Especially since a CR is even more "must pass" than a regular appropriations bill.
But what if the unthinkable is actually thinkable. The thinking went for a long time that if anyone sabotaged a "must pass" bill the wrath of God would descend upon them. Their reputation would be shot. Their career would go down the tubes. And that would be that. But you know that at some point someone would try it. And the unthinkable happened for the first time in 1976.
President Ford vetoed the funding bill for what were then the departments of Labor, Health, Education, and Welfare. That didn't cause a shutdown because Congress overrode the veto. But the resulting distraction gummed things up enough that the regular appropriations bills got hung up. So the government shut down for 11 days. And the world did not end. Sure, Ford lost his bid for re-election. But the general consensus was that the cause was not bad behavior of anyone's part. It's just that the general chaos got out of hand. And with that, the unthinkable became thinkable.
By one count, if you include the current one, we have now had a total of twenty shutdowns. There is now a whole process in place to make the whole thing routine. And the concept of a "must pass" bill has been consigned to the dusty bin of history. And, oh by the way, the CR has also become routine. The idea that we should have a thoughtful, disciplined, and responsible budgeting process has also gone the way of the dinosaur. Now it's all gamesmanship. The idea of thoughtfully and deliberately going through a process for determining what the Federal Government should and should not spend its money on can now only be described as quaint.
So we now are where we are. Ostensibly, we are fighting over whether a few billions of dollars should be spent on a wall. This is out of a budget that totals a couple of trillion dollars. But that is now our reality. And the actions (or inactions) that put us here this time around are all attributable solely to the Republicans.
Back when the current budget was supposed to be getting assembled Republicans controlled the House, the Senate, and the White House. And they managed to pass and get signed into law appropriations bills covering about three quarters of the Federal Government. Why didn't they complete the job? Ask the Republicans. Why didn't they include funding for the wall at whatever level they thought appropriate? Ask the Republicans.
Democrats were in a position to slow the process down somewhat. But they were not in a position to stop anything. And this was true right up to January 3, 2019. That's when the politicians who were up for election in 2018 and won, got seated. And, of course, Democrats picked up 40 (and perhaps 41) seats in the House. So from that day forward they controlled the levers of power in the House.
But let's backspace to December when Republicans controlled everything. The election was over but the new members have not yet been seated. This is called a "lame duck" session for reasons that are unknown to me. Anyhow, during that session a deal was struck. A CR including funding for all of the remaining departments through February 8, 2019 had been agreed to.
House Democrats and Republicans had signed off on it. Senate Democrats and Republicans had signed off on it. The White House had signed off on it. All that was left was to step through the process necessary to turn the deal into law. That process should have taken only two days.
And the Senate immediately did what it was supposed to do. Any single Senator can force a "recorded" vote. That's where the Senate staff polls each and every Senator on the Senate floor. When everybody has been heard from the tally is formally recorded showing how each specific Senator has voted. But this is a time consuming process.
If no one objects there is a quick and dirty alternative. Whoever is presiding over the Senate calls the question. Senators shout out "Aye" or "Nay" and the presiding officer says "in the opinion of the chair the Ayes have it" or "in the opinion of the chair the Nays have it". If no one objects that's it and the whole thing takes less than a minute.
And that's what happened. The Senate approved the CR bill on a voice vote. And the only time you have a voice vote is when all the Senators are in agreement and they all also think the vote is totally noncontroversial. But then before the House had a chance to vote several rabble rousers on Fox got on TV and started calling Trump a coward. And Trump told the House he had changed his mind.
The CR contained $1.3 billion for general border security but nothing specific for the wall. Trump now said he would veto anything that didn't have $5.7 billion for his wall. So the House, then still under the control of the Republicans, amended the bill the Senate had passed and sent it back to the Senate. The Senate was unable to pass this modified version (and we were back to doing recorded votes). And the old CR ran out and a quarter of the government got shut down.
And since then the Democrats have taken control of the House. And they are not going to fund the wall at any level. And Trump says "no wall - no funding". So we are at an impasse. So how does the impasse get broken? That's where most of what the talking heads have to say is either pure hot air or nonsense.
Shutdowns end in one of two ways. It might have been caused by some kind of small technical problem. Everybody gets together and fixes the problem. There is good will on all sides so this doesn't take long. The fix is passed into law and everybody goes back about their business. So that's one way a shutdown ends. The other way is a lot more ugly.
A number of shutdowns have been the result of an actual difference of opinion. One side says "red". The other side says "blue". Until everybody can settle on a color we are all stuck. That's the kind of shutdown we now have. These kinds take a lot longer to resolve and that's why we are in record setting territory when it comes to the duration of the shutdown.
These kinds of shutdowns generally devolve into a blame game. Who is responsible for the shutdown? Whoever gets the blame sees their popularity decrease. Once the losing side has been clearly determined then that side gives ground and a resolution close to the position of the other side ends up being agreed to. From there, things progress along a path similar to the "technical problem" case.
So who's winning and who's losing in the popularity contest that surrounds the current shutdown? The Democrats are winning and the Republicans are losing. But things have gotten a lot more complicated than they were the last time we had a contested shutdown. There have been structural changes so the old formulas no longer work.
Trump is widely blamed for the shutdown. This is because he is the one who reneged on his promise to support the CR. He also publicly accepted responsibility for the shutdown before it even began. That should mean that his popularity is sinking like a rock and he will soon be forced to change his behavior. But we now live in an "alternate facts" world.
His support has not declined. His supporters either don't believe it's his fault or they think it is okay to shutdown the government in order to secure funding for the wall. He has long since given up on getting support from any group other than his hard core base. The fact that whatever popularity he had among other groups is shrinking is not important to him. So he sees no reason to change his behavior.
The same is not true of other Republicans. Many of them depend to some extent on support from groups who are not part of Trump's hard core base. Nobody among these groups is happy about the shutdown. They do blame Democrats but only to a modest extent. Mostly they blame Republicans in general and Trump in particular. The problem for Republicans is that they depend critically on Trump's hard core base. Those people demand loyalty to Trump. If Republicans get on the bad side of Trump loyalists they are in big trouble.
Now let us turn to the Democrats. They just won big in 2018. Voters in general preferred Democrats to Republicans by a wide margin. Gerrymandering and other issues meant that this did not translate to an improved situation for Democrats in the Senate. But it did in the House. Democrats believe rightly that their base expects them to oppose the wall. The Democratic base blames Republicans and Trump for the shutdown by lopsided margins. So from a political perspective there is no reason for Democrats to change their position.
But wait. There's more. History tells Democrats that if they concede on the wall Republicans will move the goalposts and ask for more and more and more. Trying to compromise with Republicans has not resulted in good outcomes from the Democratic perspective. After 9/11, for instance, Democrats went along with the Bush agenda out of a sense of patriotism and solidarity. It didn't get them anything from Republicans. Instead Republicans just dug in harder and demanded more. So from a tactics perspective, backing down looks like a bad idea to Democrats.
The situation in the Senate is interesting. Democrats are holding firm. Some Republicans depend on moderates to win elections. Moderates have said loud and clear they don't want a wall. But moderates are the smaller group. Trump supporters make up the bulk of the people who vote GOP. Still several Republicans have started talking publicly about reopening the government. But talk is cheap.
The key player in all this is Senate Majority leader Mitch McConnell. I don't like him but I respect him. He is a wily old fox. He doesn't mind some members of his caucus mouthing off as long as they behave the way he wants them to when push comes to shove. For instance, Jeff Flake has made a lot of anti-Trump noises over the last few months. But he mostly voted the way Mitch wanted him to vote. And he didn't even say a thing until last Spring when he lost in the GOP Primary in Arizona. That meant he had to go home for good in January of this year.
McConnell is wise enough to give his members a little wiggle room over thing that don't matter as long as they go along with his plans when it does matter. The GOP has a three seat cushion in the Senate. If three people defect McConnel can still win because Vice President Pence gets a vote if there is a tie. By my count there are five GOP senators who, on paper, have defected. So McConnell is in trouble, right? Right now he is not in trouble.
That's because what he has been doing so far is making sure no bill gets to the Senate floor for a vote. As long as nothing happens that stops him from being able to hold up votes he is fine. But theoretically, there is a way a vote could be forced. It is called a "discharge petition".
If a majority of Senators sign such a petition then the bill, whatever bill they signed the petition to discharge, must be brought to the floor and voted on. Certainly all the Democrats (I am counting the two Independents as Democrats for the purposes of this discussion) would sign such a petition. So all it would take is four Republicans to sign on too. As far as I know no Republican has signaled they would sign such a petition. That's why we are at the "talk is cheap" stage when it comes to Senate Republicans.
And McConnell's behavior is interesting. He is Missing in Action (MIA) and has been for several weeks. Why is this? The answer is simple. He currently has no good options. For better or worse, he is currently stuck with Trump. That's because he and fellow Republicans all need the Trump base. The Trump base goes where Trump tells them to go. So McConnell can't afford to annoy Trump enough to cause him to bad mouth McConnell.
And McConnell has to be very unhappy with Trump right now. Power in Washington comes from the ability to make or stop deals. To be effective your word must be your bond. If you say you will do (or not do) something you must follow through 100% of the time. McConnell has been wielding power in Washington for a long time. His word is his bond once he signs on. But that is not true with Trump.
And this is a behavior pattern of Trump's that goes back decades. Trump sees welching on deals as a standard business tactic. Normally a businessman can't get away with that behavior. But a number of circumstances have allowed Trump to.
Originally his dad, whose word was his bond, bailed him out. Then Trump screwed over a number of New York banks after his dad could no longer bail him out. He was able to put off the inevitable for a while by switching banks. But eventually that stopped working. So he moved on to international banks. When that stopped working he started to deal with oligarchs and corrupt governments.
That was still working but then he made the mistake of transitioning from the business world to the world of Washington D.C. The problem for him is that there is now no other group to move on to. But he hasn't figured that out yet. But he is also not going to change his behavior at this late date and become someone who can be counted on to keep promises.
McConnell is inextricable bound to Trump at this point. But he knows that Trump is and will always be an unreliable partner. And that means McConnell literally can't make a deal that involves Trump because he can't count on delivering Trump. So how does he make a deal in these circumstances? He can't. So he has gone to ground.
He is hoping something will change and give him an opening. At that point he can jump in and get credit for saving the day. But currently there is literally nothing he can do until something changes. He is the key man but he is radio silent.
And the press is letting him get away with it. They are content to blame Trump, talk to lots of Democrats and Republicans and ask inane questions predicated on ridiculous assumptions. And while all this is going on they are giving McConnell a free pass.
There is a theoretical way out. McConnell could secretly tell his members that he is okay with them signing a discharge petition as long as he is kept out of it. Then when the discharge petition surfaces he would say "I had no idea this was happening and now Senate rules require me to bring the bill to the floor." In other words, "it's not my fault".
From there we would see what happened. Trump could sign the bill or he could veto it. If he signed it that would be the end of that but he would get raked over the coals by the same rabble rousers that made him change his mind in the first place. So most likely he would veto it.
That would put Republicans in both the House and the Senate in a pickle. Do they want to make a meaningful vote? (Republicans in that House voting against various Democratic initiatives designed to get the government back open are not making a meaningful vote. Everyone expects these bills to die in the Senate. As long as that holds the votes are symbolic.)
A number of Republican votes in both the House and the Senate would be required to override the veto. But these votes would not be symbolic and everyone would be watching. So I expect that if a bill made it to the floor a large number of Republicans would be forced to vote for it. Remember, what we are talking about is legislation that passed the Republican controlled Senate on a voice vote and had the public support of the Republican House leadership.
The discharge petition idea works for McConnell if he can escape blame. But I calculate that he calculates that he would not escape blame. And I think his calculation is correct. As long as that is so McConnell is not going to okay members of his caucus signing a discharge petition.
Right now, there is not enough pressure coming from the general public to break things loose. As long as that remains true the stalemate will continue and that part of the government that is shut down will stay shut down. Well, actually more of the government will shut down.
Various tricks have been used to keep parts of the affected agencies and departments at least partly open. But many of those tricks only work for a while. More and more of those tricks no longer work and more and more of the government is shutting down.
At some point something is going to give. When? I don't know. It's the "what" that may be more interesting. The Republican party has been skating on thin ice for a long time. For eight years they got away with being "the party of no". Whatever Obama was for, even if it was something with broad Republican support, they were against.
But recently they controlled all the branches of government for two years straight. Mostly what they got done during that period was putting through a giant tax cut for the rich that started out unpopular and has only gotten more unpopular since.
They promised to kill Obamacare. They failed at that. Trump promised to build a wall and force Mexico to pay for it. They had two years to come through on that promise but they failed there too. There are a number on internal contradictions that they were able to paper over during the Obama years by blaming everything on Obama. Trump has proven to be terrible at deal making. I could go on.
But how does this current shutdown redound to the benefit of Republicans? Well, if the Democrats collapse and completely give in, that would be a big win. But I am betting that won't happen. Republicans could pull something off in the legislature (Discharge petition or something else) that would get the government funded but not the wall. That would likely be very unpopular with a large segment of their base.
They could throw Trump under the bus, a perfectly sensible thing to do from my point of view. But that too would be very unpopular with a large segment of their base. Losing a big chunk of their base, even if it just turned them apathetic rather than driving them into the arms of the Democrats, would be a disaster for Republicans.
For a long time I have believed that sooner or later Democrats would have to come straight at Republicans. Over the years I have seen Democrats forgo opportunity after opportunity to do that on issues that I thought Democrats could win on. Maybe we have finally come to that point. Certainly a lot of newly elected Democrats are spoiling for a fight. If Democrats go straight at Republicans and win that might destroy the Republican party, at least in the short run.
Fasten your seatbelts. It's going to be a bumpy night.
The basic motivation for starting this blog was to provide a counter narrative when I thought a large percentage of what was being said about something was nonsense or ill informed. This morning it occurred to me that "the shutdown" definitely qualifies. I have seen a lot of noise and hot air and little intelligent analysis on the subject. So here's what I have to say.
Consider the unthinkable. Some event, either in its basic nature or in its consequences, is so horrendous that any reasonable person will feel compelled to do whatever is necessary to make sure it does not come to pass.
In political parlance, we used to have the "must pass" bill. Not passing the bill was unthinkable. So, if compromises must be made then they must be made. So a long standing trick employed by smart legislators was to attach a "rider" to a must pass bill. (A rider is a small addition that may or may not have anything to do with the main bill.) But the point is that if you succeeded in getting the rider attached, you were pretty much guaranteed it would become law. The "must pass" bill must pass, so it will.
Warren G. Magnuson, a long time Senator from my state (he died in 1981) was famous for doing this. And, as long as it was used sparingly, people grumbled but that was about it. And someone like Magnuson was accorded grudging respect for being a canny legislator. And the tactic worked in Magnuson's day because "must pass" legislation passed. Why? Because it was unthinkable to not pass a "must pass" bill. So people grumbled and complained. But in the end the bill passed.
But this was an abuse of power. It was just a traditional abuse of power that over time got accepted as one of those things that everybody just had to learn to live with. And Magnuson was careful to only occasionally resort to this tactic. And he only did it on relatively small and relatively noncontroversial issues. A bridge in Seattle got wrecked unexpectedly. Magnuson snuck funding in a rider to a "must pass" bill that put the Federal Government on the hook for paying most of the cost of the replacement.
So, other than resorting to the underhanded trick of slipping a rider into a "must pass" bill, it was standard issue pork barrel politics. The amount of money was in line with other pork barrel projects being pushed by other legislators. And that's the way things used to work.
But then some smart people asked themselves just how far this sort of thing could be pushed. How about asking for something that would otherwise have been completely unreasonable? The responsible people would end up sucking it up and voting for the bill even though it now included some horrible component because it was "must pass". (If you want an example, liberals think the "Hyde Amendment" is horrible. Conservatives can site examples of things they find equally horrible.) For a long time this worked. "Must pass" was must pass, until it wasn't.
For a long time funding the government by passing "appropriations" bills on time every year was considered "must pass". It was unimaginable to leave the government unfunded, wasn't it? But over time the brinksmanship kept getting ratchetted up. Before continuing, let's take a moment to understand how the process is supposed to work.
The Fiscal Year for the Federal Government runs from October 1 of one year through September 30 of the next. The appropriations process starts with the President submitting a detailed budget request in late January or early February. This is turned into a Budget Resolution by the House Ways and Means committee and the Senate Finance committee. The Budget resolution is strictly internal to Congress and provides guidance to the various appropriations committees as to how much money they have to spend.
At the same time the budget is broken up into about a dozen "appropriations" bills, roughly one for each cabinet department. These department level budgets are processed by the various congressional committees that have oversight responsibility for the department in question. They hold hearings and go through a "markup" process (making technical - and frequently not so technical - changes) to the budget bill that covers their area of responsibility.
So the Department of Defense gets its budget bill. The State Department gets its budget bill. And so on. When the Budget Resolution is finished and agreed to by the House and the Senate each appropriations bill is expected to conform to the guidance contained in the Budget Resolution.
Generally speaking, work on the Budget Resolution will wrap up in June. Each appropriations bill goes through the House first (the Constitution requires this) and then moves along to the Senate. The Senate can, and usually does, make changes. A "reconciliation" committee consisting of members from both the House and the Senate is now formed to iron out the differences and produce a single bill. This final version goes back to each body for "final passage". If that goes according to form it goes to the President for signature.
The President usually signs it but can veto it. If the bill is vetoed then supermajorities of both the House and the Senate can override the veto. Or Congress can rework the bill and pass the updated version back to the White House for signature. Typically appropriations start becoming law in August. All of them are wrapped up by the end of September. When that happens all is well and the entirety of the government is funded for one more fiscal year. Of course, the whole thing starts over a few months later.
It's a complicated process. And the farther along you get the more rigid it gets. The House and Senate appropriations bills can be amended right up until the moment they pass. But whatever comes out of the reconciliation process is carved in stone. Congress can also make no modification to a bill that has been vetoed if they want to override the veto. What this means is that one of the best points to insert a rider is in the reconciliation process. If you can get it by your fellow committee members you are pretty much home free.
I think you can see why the whole process starts many months before the due date of October 1. And the closer October 1 comes the less practical flexibility there is. So inserting (or deleting) your change as close to the last minute as you can manage is the best way to make sure it survives the process. And this late stage leverage, if you have it, means that lots of people find it advantageous to delay things until the absolute last minute.
Power players have long known this. The result is that the orderly process I have outlined above has been breaking down more and more often. More and more appropriations bills are passed out of Congress late in September. And the process can break down even further. What if an appropriations bill is literally not ready. Enter the Continuing Resolution (CR).
A CR is a super simple bill that just says "keep funding everything at the old levels with no change". That is a "clean CR. It is also possible to add riders. It is only practical to add a few. But they represent too good of an opportunity to pass up. So a CR is a great place to insert a rider. Especially since a CR is even more "must pass" than a regular appropriations bill.
But what if the unthinkable is actually thinkable. The thinking went for a long time that if anyone sabotaged a "must pass" bill the wrath of God would descend upon them. Their reputation would be shot. Their career would go down the tubes. And that would be that. But you know that at some point someone would try it. And the unthinkable happened for the first time in 1976.
President Ford vetoed the funding bill for what were then the departments of Labor, Health, Education, and Welfare. That didn't cause a shutdown because Congress overrode the veto. But the resulting distraction gummed things up enough that the regular appropriations bills got hung up. So the government shut down for 11 days. And the world did not end. Sure, Ford lost his bid for re-election. But the general consensus was that the cause was not bad behavior of anyone's part. It's just that the general chaos got out of hand. And with that, the unthinkable became thinkable.
By one count, if you include the current one, we have now had a total of twenty shutdowns. There is now a whole process in place to make the whole thing routine. And the concept of a "must pass" bill has been consigned to the dusty bin of history. And, oh by the way, the CR has also become routine. The idea that we should have a thoughtful, disciplined, and responsible budgeting process has also gone the way of the dinosaur. Now it's all gamesmanship. The idea of thoughtfully and deliberately going through a process for determining what the Federal Government should and should not spend its money on can now only be described as quaint.
So we now are where we are. Ostensibly, we are fighting over whether a few billions of dollars should be spent on a wall. This is out of a budget that totals a couple of trillion dollars. But that is now our reality. And the actions (or inactions) that put us here this time around are all attributable solely to the Republicans.
Back when the current budget was supposed to be getting assembled Republicans controlled the House, the Senate, and the White House. And they managed to pass and get signed into law appropriations bills covering about three quarters of the Federal Government. Why didn't they complete the job? Ask the Republicans. Why didn't they include funding for the wall at whatever level they thought appropriate? Ask the Republicans.
Democrats were in a position to slow the process down somewhat. But they were not in a position to stop anything. And this was true right up to January 3, 2019. That's when the politicians who were up for election in 2018 and won, got seated. And, of course, Democrats picked up 40 (and perhaps 41) seats in the House. So from that day forward they controlled the levers of power in the House.
But let's backspace to December when Republicans controlled everything. The election was over but the new members have not yet been seated. This is called a "lame duck" session for reasons that are unknown to me. Anyhow, during that session a deal was struck. A CR including funding for all of the remaining departments through February 8, 2019 had been agreed to.
House Democrats and Republicans had signed off on it. Senate Democrats and Republicans had signed off on it. The White House had signed off on it. All that was left was to step through the process necessary to turn the deal into law. That process should have taken only two days.
And the Senate immediately did what it was supposed to do. Any single Senator can force a "recorded" vote. That's where the Senate staff polls each and every Senator on the Senate floor. When everybody has been heard from the tally is formally recorded showing how each specific Senator has voted. But this is a time consuming process.
If no one objects there is a quick and dirty alternative. Whoever is presiding over the Senate calls the question. Senators shout out "Aye" or "Nay" and the presiding officer says "in the opinion of the chair the Ayes have it" or "in the opinion of the chair the Nays have it". If no one objects that's it and the whole thing takes less than a minute.
And that's what happened. The Senate approved the CR bill on a voice vote. And the only time you have a voice vote is when all the Senators are in agreement and they all also think the vote is totally noncontroversial. But then before the House had a chance to vote several rabble rousers on Fox got on TV and started calling Trump a coward. And Trump told the House he had changed his mind.
The CR contained $1.3 billion for general border security but nothing specific for the wall. Trump now said he would veto anything that didn't have $5.7 billion for his wall. So the House, then still under the control of the Republicans, amended the bill the Senate had passed and sent it back to the Senate. The Senate was unable to pass this modified version (and we were back to doing recorded votes). And the old CR ran out and a quarter of the government got shut down.
And since then the Democrats have taken control of the House. And they are not going to fund the wall at any level. And Trump says "no wall - no funding". So we are at an impasse. So how does the impasse get broken? That's where most of what the talking heads have to say is either pure hot air or nonsense.
Shutdowns end in one of two ways. It might have been caused by some kind of small technical problem. Everybody gets together and fixes the problem. There is good will on all sides so this doesn't take long. The fix is passed into law and everybody goes back about their business. So that's one way a shutdown ends. The other way is a lot more ugly.
A number of shutdowns have been the result of an actual difference of opinion. One side says "red". The other side says "blue". Until everybody can settle on a color we are all stuck. That's the kind of shutdown we now have. These kinds take a lot longer to resolve and that's why we are in record setting territory when it comes to the duration of the shutdown.
These kinds of shutdowns generally devolve into a blame game. Who is responsible for the shutdown? Whoever gets the blame sees their popularity decrease. Once the losing side has been clearly determined then that side gives ground and a resolution close to the position of the other side ends up being agreed to. From there, things progress along a path similar to the "technical problem" case.
So who's winning and who's losing in the popularity contest that surrounds the current shutdown? The Democrats are winning and the Republicans are losing. But things have gotten a lot more complicated than they were the last time we had a contested shutdown. There have been structural changes so the old formulas no longer work.
Trump is widely blamed for the shutdown. This is because he is the one who reneged on his promise to support the CR. He also publicly accepted responsibility for the shutdown before it even began. That should mean that his popularity is sinking like a rock and he will soon be forced to change his behavior. But we now live in an "alternate facts" world.
His support has not declined. His supporters either don't believe it's his fault or they think it is okay to shutdown the government in order to secure funding for the wall. He has long since given up on getting support from any group other than his hard core base. The fact that whatever popularity he had among other groups is shrinking is not important to him. So he sees no reason to change his behavior.
The same is not true of other Republicans. Many of them depend to some extent on support from groups who are not part of Trump's hard core base. Nobody among these groups is happy about the shutdown. They do blame Democrats but only to a modest extent. Mostly they blame Republicans in general and Trump in particular. The problem for Republicans is that they depend critically on Trump's hard core base. Those people demand loyalty to Trump. If Republicans get on the bad side of Trump loyalists they are in big trouble.
Now let us turn to the Democrats. They just won big in 2018. Voters in general preferred Democrats to Republicans by a wide margin. Gerrymandering and other issues meant that this did not translate to an improved situation for Democrats in the Senate. But it did in the House. Democrats believe rightly that their base expects them to oppose the wall. The Democratic base blames Republicans and Trump for the shutdown by lopsided margins. So from a political perspective there is no reason for Democrats to change their position.
But wait. There's more. History tells Democrats that if they concede on the wall Republicans will move the goalposts and ask for more and more and more. Trying to compromise with Republicans has not resulted in good outcomes from the Democratic perspective. After 9/11, for instance, Democrats went along with the Bush agenda out of a sense of patriotism and solidarity. It didn't get them anything from Republicans. Instead Republicans just dug in harder and demanded more. So from a tactics perspective, backing down looks like a bad idea to Democrats.
The situation in the Senate is interesting. Democrats are holding firm. Some Republicans depend on moderates to win elections. Moderates have said loud and clear they don't want a wall. But moderates are the smaller group. Trump supporters make up the bulk of the people who vote GOP. Still several Republicans have started talking publicly about reopening the government. But talk is cheap.
The key player in all this is Senate Majority leader Mitch McConnell. I don't like him but I respect him. He is a wily old fox. He doesn't mind some members of his caucus mouthing off as long as they behave the way he wants them to when push comes to shove. For instance, Jeff Flake has made a lot of anti-Trump noises over the last few months. But he mostly voted the way Mitch wanted him to vote. And he didn't even say a thing until last Spring when he lost in the GOP Primary in Arizona. That meant he had to go home for good in January of this year.
McConnell is wise enough to give his members a little wiggle room over thing that don't matter as long as they go along with his plans when it does matter. The GOP has a three seat cushion in the Senate. If three people defect McConnel can still win because Vice President Pence gets a vote if there is a tie. By my count there are five GOP senators who, on paper, have defected. So McConnell is in trouble, right? Right now he is not in trouble.
That's because what he has been doing so far is making sure no bill gets to the Senate floor for a vote. As long as nothing happens that stops him from being able to hold up votes he is fine. But theoretically, there is a way a vote could be forced. It is called a "discharge petition".
If a majority of Senators sign such a petition then the bill, whatever bill they signed the petition to discharge, must be brought to the floor and voted on. Certainly all the Democrats (I am counting the two Independents as Democrats for the purposes of this discussion) would sign such a petition. So all it would take is four Republicans to sign on too. As far as I know no Republican has signaled they would sign such a petition. That's why we are at the "talk is cheap" stage when it comes to Senate Republicans.
And McConnell's behavior is interesting. He is Missing in Action (MIA) and has been for several weeks. Why is this? The answer is simple. He currently has no good options. For better or worse, he is currently stuck with Trump. That's because he and fellow Republicans all need the Trump base. The Trump base goes where Trump tells them to go. So McConnell can't afford to annoy Trump enough to cause him to bad mouth McConnell.
And McConnell has to be very unhappy with Trump right now. Power in Washington comes from the ability to make or stop deals. To be effective your word must be your bond. If you say you will do (or not do) something you must follow through 100% of the time. McConnell has been wielding power in Washington for a long time. His word is his bond once he signs on. But that is not true with Trump.
And this is a behavior pattern of Trump's that goes back decades. Trump sees welching on deals as a standard business tactic. Normally a businessman can't get away with that behavior. But a number of circumstances have allowed Trump to.
Originally his dad, whose word was his bond, bailed him out. Then Trump screwed over a number of New York banks after his dad could no longer bail him out. He was able to put off the inevitable for a while by switching banks. But eventually that stopped working. So he moved on to international banks. When that stopped working he started to deal with oligarchs and corrupt governments.
That was still working but then he made the mistake of transitioning from the business world to the world of Washington D.C. The problem for him is that there is now no other group to move on to. But he hasn't figured that out yet. But he is also not going to change his behavior at this late date and become someone who can be counted on to keep promises.
McConnell is inextricable bound to Trump at this point. But he knows that Trump is and will always be an unreliable partner. And that means McConnell literally can't make a deal that involves Trump because he can't count on delivering Trump. So how does he make a deal in these circumstances? He can't. So he has gone to ground.
He is hoping something will change and give him an opening. At that point he can jump in and get credit for saving the day. But currently there is literally nothing he can do until something changes. He is the key man but he is radio silent.
And the press is letting him get away with it. They are content to blame Trump, talk to lots of Democrats and Republicans and ask inane questions predicated on ridiculous assumptions. And while all this is going on they are giving McConnell a free pass.
There is a theoretical way out. McConnell could secretly tell his members that he is okay with them signing a discharge petition as long as he is kept out of it. Then when the discharge petition surfaces he would say "I had no idea this was happening and now Senate rules require me to bring the bill to the floor." In other words, "it's not my fault".
From there we would see what happened. Trump could sign the bill or he could veto it. If he signed it that would be the end of that but he would get raked over the coals by the same rabble rousers that made him change his mind in the first place. So most likely he would veto it.
That would put Republicans in both the House and the Senate in a pickle. Do they want to make a meaningful vote? (Republicans in that House voting against various Democratic initiatives designed to get the government back open are not making a meaningful vote. Everyone expects these bills to die in the Senate. As long as that holds the votes are symbolic.)
A number of Republican votes in both the House and the Senate would be required to override the veto. But these votes would not be symbolic and everyone would be watching. So I expect that if a bill made it to the floor a large number of Republicans would be forced to vote for it. Remember, what we are talking about is legislation that passed the Republican controlled Senate on a voice vote and had the public support of the Republican House leadership.
The discharge petition idea works for McConnell if he can escape blame. But I calculate that he calculates that he would not escape blame. And I think his calculation is correct. As long as that is so McConnell is not going to okay members of his caucus signing a discharge petition.
Right now, there is not enough pressure coming from the general public to break things loose. As long as that remains true the stalemate will continue and that part of the government that is shut down will stay shut down. Well, actually more of the government will shut down.
Various tricks have been used to keep parts of the affected agencies and departments at least partly open. But many of those tricks only work for a while. More and more of those tricks no longer work and more and more of the government is shutting down.
At some point something is going to give. When? I don't know. It's the "what" that may be more interesting. The Republican party has been skating on thin ice for a long time. For eight years they got away with being "the party of no". Whatever Obama was for, even if it was something with broad Republican support, they were against.
But recently they controlled all the branches of government for two years straight. Mostly what they got done during that period was putting through a giant tax cut for the rich that started out unpopular and has only gotten more unpopular since.
They promised to kill Obamacare. They failed at that. Trump promised to build a wall and force Mexico to pay for it. They had two years to come through on that promise but they failed there too. There are a number on internal contradictions that they were able to paper over during the Obama years by blaming everything on Obama. Trump has proven to be terrible at deal making. I could go on.
But how does this current shutdown redound to the benefit of Republicans? Well, if the Democrats collapse and completely give in, that would be a big win. But I am betting that won't happen. Republicans could pull something off in the legislature (Discharge petition or something else) that would get the government funded but not the wall. That would likely be very unpopular with a large segment of their base.
They could throw Trump under the bus, a perfectly sensible thing to do from my point of view. But that too would be very unpopular with a large segment of their base. Losing a big chunk of their base, even if it just turned them apathetic rather than driving them into the arms of the Democrats, would be a disaster for Republicans.
For a long time I have believed that sooner or later Democrats would have to come straight at Republicans. Over the years I have seen Democrats forgo opportunity after opportunity to do that on issues that I thought Democrats could win on. Maybe we have finally come to that point. Certainly a lot of newly elected Democrats are spoiling for a fight. If Democrats go straight at Republicans and win that might destroy the Republican party, at least in the short run.
Fasten your seatbelts. It's going to be a bumpy night.
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