Norman Krivosha Remembered

January, 2021

Lincoln –  Norman Krivosha, former chief justice of the Nebraska Supreme Court, made remarkable contributions to Lincoln and to Nebraska.  He passed away last week in Florida.  

A newspaper article noting his passing contained one sentence that should not have made it into print: "In both 1984 and 1986, he had the lowest rating of the Supreme Court members in an evaluation conducted by the Nebraska Bar Association."

This sentence badly needs more context than it was given.  James Hewitt provides it in a 2005 article on the relationship between the court and the bar:

Bar leadership would undoubtedly have rated Chief Justice Krivosha significantly higher than did the bar as a whole. He was helpful, cooperative, and enthusiastic in dealing with the bar. It is difficult to understand why he earned such low ratings, unless lawyers as a group resented his public battles with Mike Royko* over the court's striking of the death penalty in State v. Hunt.  Perhaps his death penalty dissents did him a disservice, or maybe it was his efforts to move tort law into the twentieth century. In any case, he was not a favorite of the rank and file, and the bar leaders must bear some of the blame for failing to make the membership more aware of his cooperation.

Norman Krivosha could rub people the wrong way, to be sure.  Even after Hewitt defended him for the historical record, Krivosha did not return the favor.  He couldn't resist saying that Governor Norbert Tiemann lost re-election because of "Whiz Kids who thought Nebraskans were too dumb."** Jim Hewitt was one of the Tiemann Whiz Kids.  

I got on Krivosha's wrong side at least once.  In the mid-70s, when he was advising Governor Jim Exon as unpaid counsel, I wrote something that came to his attention in which I used the term ultra vires.  Norm didn't think people in the state budget division should use language like that.  It was a term reserved for people who knew what they were talking about, he said.  

Such could be said for the unfortunate sentence in the article on his passing.  Norman Krivosha was a great chief justice and an even finer human being.  

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*  As to the Royko controversy:  I quit reading the nationally published Chicago columnist after his 1985 attack on Krivosha and the Nebraska Supreme Court.  They had the difficult task of determining what the state legislature had in mind when it reserved the death penalty for "especially heinous" acts, as opposed to ordinary heinous ones, whatever those may be.  Royko admitted to not reading the decision.

** (2013) Palleson and Van Pelt, Big Jim Exon, p. 85.  

Naming Lincoln's New High Schools

January, 2021

Lincoln –  Two new high schools in Lincoln are about to be named.  The school board historically has named high schools with directional designations, but one of the new schools, southeast of the city, cannot be named Lincoln Southeast because the name is already taken.  

This raises the possibility that the high schools might be named for people, as are Lincoln's elementary and junior high schools, or for nearby place-names, like Lincoln Saltillo and Lincoln Emerald. 

State symbols might work:  Lincoln Bluestem; Lincoln Goldenrod. 

If people are in the running, this would be a good time to consider Lincoln notables who deserve more recognition, if not now, then for other naming opportunities coming along.    

Possibilities:  Lawrence Bruner; Frank Eager; Frederic Clements; Edith Schwartz Clements; Elizabeth Dolan; Erwin Barbour; Paul Johnsgard.  Others to consider:  Rachel Lloyd, Mary Louise Fossler, Ruth Bryan Owen.   

If these names are unfamiliar, that's the point.  These Lincolnites of remarkable accomplishment are worthy of more recognition than they have been given.  

You can look them up, as the saying goes.

The more research, the better.  With names, there's always the chance of selecting someone unworthy and being stuck with the decision.  Previously, I have wondered about the wisdom in naming Arnold School (and Arnold Heights) after a general who was never in Lincoln and whose theory of strategic civilian bombing is now largely condemned by military historians.  A good replacement name for Arnold would be that of the estimable botanist John E. Weaver, who knew the natural history of that part of Lincoln like no other person. 

Perhaps the school board will decide on Lincoln West and Lincoln South.  Could be worse.  Please, no Air Park High; the NW 48th corridor westward should create its own identity from its rich history and resources. 

 

   

Virginia Smith and Donald Trump

January, 2021

Lincoln – Two Nebraskans with long experience in Washington have reacted in print to the January 6th insurrection at the U.S. Capitol.  They are former Washington-based reporters for the Omaha World-Herald, Randy Moody and Mary Kay Quinlan. 

Mary Kay Quinlan went on to be leader of the National Press Club and associate dean of the University of Nebraska–Lincoln school of journalism.   

She looked back at former Nebraska lawmakers and how they might have reacted to Donald Trump taking over the Republican party and inciting the insurrectionists.  She doubted that some of them, especially the third district's Virginia Smith, "would even recognize a party whose voters have fallen in thrall to an unprincipled, uncouth, failed businessman turned 'reality' TV star whose years of lies resulted in last week’s storming of the Capitol."

She goes on to write, "Regrettably, the voters of Nebraska’s 3rd Congressional District, who overwhelmingly reelected Mrs. Smith for nearly two decades, are the same voters who overwhelmingly sought to return to office the man whose supporters charitably could be considered would-be performance artists."

The former OWH reporter further laments that "few have noted that it’s voters who put people in office. Voters in Nebraska and across the nation who sought the president’s reelection must bear some responsibility for the logical outcome of their actions at the ballot box."

Much there to unpack.  I spent several years in Washington at many of the same venues as Mary Kay Quinlan, amid the same Nebraska representatives.  I agree with her about today's Nebraska voters, but I see more of a direct line than she does between Virginia Smith and Donald Trump.

Virginia Smith, in my recollection, indulged in the same kind of fabulism that characterized the Trump era.  In 1981, she did not push back in any way to the notion that a huge tax cut would balance the federal budget and have more left over to increase defense spending.  Even David Stockman, the director of the Office of Management and Budget, confessed that no one really believed it.  After Congress enacted the program, the country went into steep recession and Congress reversed much of it in 1982, after which the country slowly recovered, albeit with a greatly increased national debt.    

But many of her Nebraska constituents believed it, just as they believe today that the 2020 election was stolen from Trump.  The direct political heirs of Virginia Smith are Nebraska lawmakers Deb Fischer and Adrian Smith.  I think they know that Trump did not win the election, but are not up to saying so, just as Virginia Smith was not up to telling her constituents the truth about magical economics forty years ago.  Fabulism is alive and well in Nebraska, most strongly in the third district.    

Virginia Smith's papers are at UNL.  Now would be a good time to look at them to see what hints they provide as to whether she would or would not "even recognize" the party of Donald Trump.  Many of today's Nebraska voters doubtless think she is of one piece with them.    

Reasons to Disregard 11th-hour Memo on Student Loans

January, 2021

Washington – The Trump administration is making an eleventh-hour attempt to limit the ability of the incoming Biden administration to provide relief to federal student loan borrowers.  

A new memorandum from an acting deputy general counsel at the Department of Education interprets very narrowly the Secretary of Education's statutory powers to compromise and settle loans.  The memorandum, however, is off-base in describing the provision in question and makes major omissions regarding its historical interpretation and use.  

In the 1990s, I worked at the Office of Legislation and Congressional Affairs at the department; the following decade I initiated litigation (largely successful) involving the provisions in question.  So I am familiar with the territory covered by the memorandum.   

I recall many internal department discussions in the 1990s about the use of 20 U.S.C. 1082, which gives the Secretary powers and duties to compromise and settle loan disputes.  The statute was enacted many decades ago for the purpose of protecting the interests of the United States, which included the integrity of federal student loan programs.  If other remedies to straighten out disputes failed, the Secretary could step in by law.  

At that time, most disputes involved guaranty agencies, which handled the majority of federal student loans; the federal direct loan program was in its infancy and would not fully replace the bank-based loan system until 2010.  Guaranty agencies' extensive powers and duties, for which they were funded by fees and federal payments, included authority over "cancelled loans...[and] borrower refunds, including those arising out of student or other borrower claims and defenses."

More than a few times at OLCA I had occasion to call guaranty agencies about loan disputes and request that they resolve them or else the Secretary would have to act.  Those who administered the bank-based program in the early and mid-1990s, including secondary markets, were government agencies or non-profits, and usually resolved problems without further conflict.*

That changed toward the end of the decade, as government-sponsored enterprises and non-profits began to convert to for-profit status.  In the early 2000s, previously unheard of profit levels tempted many student loan entities to cut corners on servicing and on federal subsidy claims.  After successive audits by the department's inspector general showed fraudulent claims by lenders, Secretary of Education Margaret Spellings concurred with the audit conclusions in a January, 2007, decision, but notably gave blanket amnesty to all lenders that had made false claims.  They would not have to repay so long as they agreed not to make more.

This action was approved by the Department of Justice and the Office of Management and Budget, based on the Secretary's power to compromise and settle.   The generous treatment of lenders cost federal taxpayers hundreds of millions of dollars, at a minimum.  The Secretary said the total amount was unknowable and did not offer an estimate. She said she acted so as to prevent even greater losses.

All of which undermines the new memorandum's assertion that the Secretary is required to collect debts under the Federal Claims Collection Act**, which obligates agencies to “try to collect a claim of the United States Government for money . . . arising out of the activities of, or referred to, the agency."  That was brushed aside in 2007.   It also undermines arguments in the memorandum that settlements must be done on an individual, "case-by-case" basis, and that settling creates an unacceptable "moral hazard."  

To omit decades of history of the application of the statute at issue is a fundamental flaw of the new memorandum.  

As to what the limits of the powers are in 2021, I have suggested previously that compromise and settlement of borrowers' loans apply to all issues of program integrity, a long-standing interpretation going back decades. That includes the mishandling of "borrower defense" loan discharges, for which Secretary Betsy DeVos was once threatened with jail by a federal judge for failing to cancel loans as required by law; and the maladministration of the Public Service Loan Forgiveness program, which once was described in a headline, "Your Student Loan Servicer Will Call You Back in a Year. Sorry."  It may also extend to borrowers who never had an opportunity to raise issues about their loans because of the DeVos-created doctrine of "preemption," under which consumer protection investigations by state attorneys general, among others, were never allowed to proceed by Secretary DeVos.  That doctrine has now been set aside by many federal courts, but borrowers have had no relief from the deprivation of their consumer rights.  

The compromise and cancellation powers clearly can be used to provide protection of the United States from huge financial losses.  Through the use of the powers in cases where institutions have defrauded borrowers, and by requiring the schools to contribute to paying the costs, a strong signal would be sent to institutions to re-think business plans that rely on misleading and defrauding students (and sometimes parents) so as to profit from defenseless federal taxpayers left holding future defaults.  

As to more general student loan cancellations, a case can be made that the very size of total borrower debt, and the troubling numbers of those unable ever to pay off their debts, indicate a breakdown of the federal loan program itself.  There have been many recent proposals to reduce debt interest or principal, to adjust terms, to assign loans to reformed programs, and to target relief by demographic categories.  Many of these ideas have merit and should be pursued through legislation.  Some might be accommodated through the Secretary's compromise and settlement authority, if appropriately tied to historical interpretation and precedent.  It is worth the effort, should legislative remedies not succeed.

However that turns out, it can already be said that the eleventh-hour memorandum from the Trump administration is not well-founded and should be disregarded by the incoming administration. 

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* All were mindful of the late 1980s' collapse of the Higher Education Assistance Fund (HEAF), a Minnesota-based guaranty agency that federal taxpayers bailed out at a cost of hundreds of millions of dollars. 

** On the occasion of the new memorandum's mention of the Federal Claims Collection Act, it seems appropriate to ask whether the Secretary has collected $22 million from a lender's false claims, which unpaid debt is over a decade old.  See https://oha.ed.gov/oha/files/2019/03/2016-42-SA.pdf.  

The Case for Methodical and Bi-Partisan Impeachment

January, 2021

Washington –  What a week. The accounts of those trapped in the U.S. Capitol, calling for help, are the most unsettling to me. Moving furniture in front of doors, keeping quiet. 

I worked in the Senate from 1979-84 and spent much time there, and in the House, from 1994-2001 as a federal agency congressional liaison.  I've been back many times on various missions as a private citizen.  

There must be consequences for those who committed crimes and for those who incited them.

The best way forward, unless someone has a better plan, is to impeach the President to hold him accountable, so he cannot run for office again, but to do it methodically over weeks or months. There seems to be no realistic way to do it in the few days remaining in his term. 

 The House should allow time for evidence to be gathered and other legal processes to move forward in the judicial system (both federal and state), so as to draft the articles properly. The House would then act to impeach, but hold the articles and not send them to the Senate until the votes are there to convict. Well-drafted and substantiated articles, passed with bi-partisan support from at least a few House Republicans, could result in a Senate conviction. 

Impeachment articles should not be sent to the Senate if there is a substantial risk of acquittal. The act of a second impeachment is of huge consequence itself. It would also inform the historical record.

Impeachment should take a deliberate back seat to moving ahead with President Joe Biden's legislative agenda, which will seek bipartisan cooperation. Success with that agenda could pave the way for Senate conviction of Trump so as to preclude him from running again for any office.

This suggestion is similar to one I made in 2019, that the House should censure Donald Trump for his impeachable offenses, then initiate impeachment proceedings but not send impeachment articles to the Senate until there was a reasonable chance of conviction.  Had the House held the first impeachment articles in abeyance, for however long, they would have been both a restraint on Trump's behavior and available in a crisis to be sent to the Senate for action.*

The key words now are methodical and bi-partisan.  This will allow much new information to be gathered, including the possibility that impeachable offenses by others in office will be discovered.  Once Donald Trump is no longer in power to wield fear of retribution, many who were a part of his administration may choose to cooperate with investigations, both congressional and judicial, to create a truthful record of the times.  

Proceeding this way also allows the nation's focus to return to fighting the raging pandemic and shoring up cybersecurity measures, two other crises that need immediate and undivided attention.

If there is a need to remove the President before his term expires, the most likely route, it seems to me, would be for a handful of Senate Republicans to advise the Vice President that they will bolt the party if he does not act to invoke the 25th Amendment.  Senate Democrats could aid this process by assuring the Senators that they would not lose their committee assignments and rankings for taking such action.  Students of comparative government will recognize this as akin to actions in parliamentary systems, through which coalitions are formed to get through crises.   

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* Sending the impeachment articles to the Senate without the votes to convict was a major blunder by House Speaker Pelosi and the Democratic Leadership; we have now suffered the consequences.      

The Colossal Crises

January, 2021

Washington and Lincoln –  In September, 2016, this blog predicted a "colossal crisis" if Donald Trump were to be elected.  Now we have three such crises simultaneously: a cybersecurity invasion by Russia that might, at any time, bring our nation operationally to its knees; a raging pandemic made worse by an inept federal response; and an insurrection resulting in a breach of Capitol security during the counting of electoral votes under the Constitution.  

The rest of the free world is appalled; the world's dictators exult over the shame of it all.  

The prediction of colossal presidential failure was not hard to make.  The man had no government experience and had never served in the military (he was a draft-dodger).  He was a bankrupt (several times over), a serial philanderer, and was well-known in business for stiffing his contractors.  He was a fabulist, a liar.  His personal behavior was indecent.  

The real surprise was not his foundering, but why so many Americans voted for him in the first place.  I continue to shake my head as to why my fellow Nebraskans, decent folk mostly, not once, but twice gave him overwhelming approval at the polls.  

What were they thinking?  Trump was hardly a conservative; many of his policies stood traditional conservatism on its head.   A certain percentage of the population is always attracted to buffoonery in the cause of grievance, perhaps one in five at most, but not three or even four of five, as many Nebraska counties voted.   It did not help, of course, that Democrats conducted poor campaigns, but that does not account for the Trump enthusiasm exhibited by many Nebraska voters.  

I believe the answer lies in understanding the power of mass media propaganda.  Media manipulation techniques were developed and perfected by Joseph Goebbels in service to the Nazis.  They were demonstrated contemporaneously in America by Father Charles Coughlin.  If you have ever seen Dr. Goebbels and Father Coughlin at work, in old film clips, you are not surprised at their success.  

Coughlin is a model for modern-day propagandists, exemplified by Murdoch media and its imitators.  The once-obscure priest dominated mass communications in the 1930s, as Murdoch saturates it now.  

Goebbels is remembered not only for his use of radio, movies, newspapers, and rallies, but for his exploitation of the Big Lie approach to news-making.  The bigger the lie, the better, on the theory that it must be true because no one would dare say it otherwise.  It was then repeated over and over, on the premise that it must be true or it would not be repeated so often.  The Big Lie then was accepted in the public consciousness, because "everyone knows" it's true.  

Which brings us to the latest version of what "everyone knows":  that the 2020 election was a landslide victory for Trump.  People flocked this week to a Goebbelsian rally and were incited to storm the U.S. Capitol to keep the Big Lie alive.  A few died in the cause that they were convinced was patriotic.  A few of the stormers may be thugs, but most, it seems to me, are victims of the propagandists.  

The question of the moment is how to overcome the three colossal crises now at hand.  The resignation of cabinet and other high-ranking officials does little to help.  The propagandists must stand down.    

The Department of Education "lies in ruins." Now what?

January, 2021

Washington – Readers of this blog will not be surprised to find me in agreement with much of what the New York Times said yesterday in an editorial about the U.S. Department of Education. Its subhead read, in words hard to improve upon, that the department "lies in ruins...."

Excerpt:

Yet another set of lawsuits has shown how the companies that are handsomely paid to collect student loans aggravate the debt crisis by giving advice that costs borrowers money while earning the companies cash.

Comments I have heard after the appearance of the editorial, however, are not all complimentary. "What took them so long," was one. "Where have they been? They should have been all over this as it was happening," was another.

That's true. And it was only at the very end that the editorial got around to noting the issues with student loan servicers, with an outdated link at that.

These scandals have been covered in this blog for a long time.  But it's good, at long last, to have company of any kind, however tardy, however inadequate.

What is the new secretary of education going to do about profound problems in federal student financial aid programs?

Unfortunately, the history of the department does not suggest early resolution. Most secretaries in the past have been oriented toward K-12 education and do not learn about higher education failures until too late.

That must not happen again. The Biden Administration needs to staff top department positions with those who have been fighting fraud, waste, abuse, and corruption all along, not those who will have a long learning curve or, heaven forbid, those who will be eager to perpetuate the mistakes of the past. This is not a time for revolving door appointments.

The New York Times can do us all a favor by following up its editorial with hard-hitting news stories that further substantiate its positions, and hold the new administration's feet to the fire on ways for the department to rise from the ruins.