Release of the Mueller Report

January, 2019

Washington -- The confirmation hearing of William Barr for Attorney General left a huge issue hanging: whether Barr, if confirmed, will release the forthcoming Mueller Report to Congress.

Whether he does or not, Mueller can take it upon himself to provide it to Congress under the Lloyd-Lafollette Act of 1912. Mueller is a government employee, paid by taxpayers, and is protected from being dismissed for doing so by the plain language of the Act:

"the right of employees ... to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." 5 U.S.C. § 7211

"The purpose of this Act was to allow Congress to obtain uncensored, essential information from federal employees. Congress intended to allow the federal workers direct access to Congress in order to register complaints about conduct by their supervisors and to report corruption or incompetence."*

That pretty much sums up the situation. Barr could refuse to transmit the report to Congress, but Mueller could certainly act on his own, which would be consistent with his charge to investigate.**

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* From https://en.wikipedia.org/
wiki/Lloyd%E2%80%93La_Follette_Act,
accessed 16 January 2019.

** Moreover, the Consolidated Appropriations Act of 2018 makes it illegal for any person to use federal money to “implement or enforce any nondisclosure policy, form, or agreement” that does not explicitly inform federal employees of their right to report any “violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” to any member of Congress.... See commentary by Stephen M. Kohn at https://thehill.com/blogs/congress-blog/judicial/402027-are-trumps-ndas-legal

How to End the Federal Shutdown

January, 2019

Washington -- Here's a way to end the shutdown quickly: agree to appoint a High Commission to handle border security enhancement, and empower it to make decisions as to where on the Southern border to build physical barriers and where to use other means and measures. Give it two years and an appropriation made up of new money and money previously appropriated but unspent, not to exceed $5 billion.

The High Commission would be headed by George Schultz and George Mitchell, impeccably credentialed statesmen, who would seek the advice of security experts to help guide the decisions.

The president said on national television that he was following the advice of experts, so this should satisfy him, as should the designation of a High Commission. Democrats have previously acknowledged the need for physical barriers of some nature in some locations, so this should satisfy them.

This is not so much a compromise as a expedient way forward that would result in better border security as well as reopen the government.

The country is in a perilous state, vulnerable to health, transportation, and national security dangers far more serious than any dispute over physical barrier design. We need to press for solutions to open the government, commensurate with growing risks.

Lessons from The Nation's Prairie Capital

January, 2019

Lincoln -- Some days are better than others when it comes to governments, whether federal, state, or local. On January 9, 2019, as the federal government remained partially closed and the president walked out of a meeting to open it, state and local officials meeting in Lincoln calmly discussed and made progress on long range planning for the prairie grassland area northwest of the city.

The Lincoln meeting was chaired by the mayor and attended by top city officials and natural resource administrators from the University of Nebraska. The staff work for the meeting was excellent and the discussion moved forward based on facts and science. The meeting concluded with a sense of progress and accomplishment. Would that such people were in charge at the federal level.

A highlight of the meeting for me was an aside from a university official who reported that a recent visitor to Lincoln, a national leader in the discipline of range management, wanted to visit the grave of Frederic Clements in Wyuka cemetery, to pay homage to the remarkable founder of plant ecology. They found the gravesite and paid their respects. Clements was born in Lincoln and studied under Professor Charles Bessey before revolutionizing the world of life sciences with his far-reaching theories. His work lives on not only in the history of science, but on the practical level in soil and water conservation efforts worldwide.

Great people and great lessons can come out of Lincoln, The Nation's Prairie Capital.


Passing the Baton

January, 2019

Washington -- The 4th Circuit Court of Appeals has, as somewhat expected, denied our remand request in the last of the nine civil fraud cases we brought against student loan lenders. The last case took over eleven years of back-and-forth wins and losses.

The overall final score therefore remains at 7-2. Seven lenders settled, each paying back in the millions.* One lender was determined by the court to be an arm of a state government, thus immune from suit.** The last defendant escaped, but its litigation expenses exceeded what it could have settled for and it faces additional litigation from others because of the losses it incurred in fighting our case.

Our overall record with the 4th Circuit is now concluded at 3-1. Over the years, we won three important decisions from the Richmond court. We could have ended at 3-0 and not tried for a fourth victory, but I felt an obligation to students, families, and taxpayers to continue until the legal process was fully concluded.

One of our Circuit Court victories was affirmed by the U.S. Supreme Court, so our record there is 1-0. That case will remain an important precedent in Eleventh Amendment jurisprudence.

The baton is now passed to others whose own cases are well underway. Borrowers have filed class action lawsuits based on our 2017 victory stripping sovereign immunity from the last defendant. A state attorney general has likewise brought suit on behalf of borrowers and prevailed in the first round of litigation. More will follow. The baton has been passed with a good lead for the final legs.

I express again much gratitude to my legal teams. And settlement monies have been invested back into charities that protect students, veterans, families, and taxpayers from unscrupulous and predatory practices in higher education finance.

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* The paybacks did not cover the amounts illegally claimed, however. Although the Inspector General determined that all such funds should be returned to the U.S. Treasury, Secretary Margaret Spellings overruled the Inspector General and allowed the lenders to keep the proceeds of their false claims. Hence the lawsuit under the False Claims Act to recover the funds.

** The Arkansas lender conceded, however, that it had made improper claims and voluntarily returned approximately $6 million to the Treasury prior to the lawsuit. My own research determined that the amount at issue was closer to $12 million, so the outcome was more of a tie than a loss. Because of this 50-50 split, the overall outcome could also be described as 7-1-1.



Apollo 8, Fifty Years Later

December, 2018

Lincoln -- It's nice to see so much attention being given to the 50th anniversary of Apollo 8, the first circumnavigation of the moon. Too bad celebration of it at the National Archives is curtailed because of a government shutdown. Times change, and lately not for the better. The success of Apollo 8 provided a moment of great pride and hope in America. It was also a key Cold War victory over the Soviet Union.

I was part of the Apollo 8 recovery effort, aboard USS Arlington (AGMR-2). We and USS Yorktown (CVS-10) left Pearl Harbor for the target zone before Christmas, 1968, and waited there for the splashdown on December 27th. Several of my shipmates were topside at dawn and saw the capsule descend. I was below decks, being the communications watch officer connecting Yorktown circuits through Arlington to the rest of the world. Arlington was a major communications relay ship, featuring huge sending and receiving antennas everywhere.

Once aboard Yorktown, astronauts Frank Borman, William Anders, and James Lovell stepped out onto a starboard sponson and gave the Arlington crew a wave. I was off watch by that time and waved back, along with hundreds of others. What a moment; what a relief that they were back safely, and that all communication circuits worked for the splashdown.

Looking back, it's nothing short of remarkable what our country achieved, albeit at great risk because so many of the rocket and computer systems of the time were unreliable. What courage, what selfless heroism from the Apollo 8 astronauts.



Farm Bill Lost Opportunities

December, 2018

Lincoln -- The 2018 Farm Bill is now law. History will look back on it as a lost opportunity to do something more to stem decline in rural America.

To me it is almost inexplicable why Senators compromised away their bipartisan approach so as to accept harmful, partisan provisions in the House bill. The Senate was in a good position in November to advise the House either to drop the offensive provisions or to extend the 2014 Farm Bill until the House changed political control in 2019. Instead, in December the Senate allowed multi-year cutbacks to the Conservation Stewardship Program (CSP) and expansion of wasteful commodity subsidies to those who are not farmers and have no financial need for them.

The latter is particularly troubling because the expansion of these subsidies will soon be capitalized into the price of land, making entry into farming more difficult for young farmers and likewise making it more difficult for current, struggling farmers to pay property taxes. A major reason why land prices do not fall with commodity prices is federal subsidy spending on behalf of all the wrong people.

This is not a partisan issue. Iowa Republican Senator (and farmer) Charles Grassley has been fighting for better targeting of the farm safety net for years, as have many Democrats. Non-partisan groups on both the right and left have also tried to cut back on this hugely counterproductive spending, which should be re-directed elsewhere in the Farm Bill. (CSP could certainly benefit from it.) For a more in-depth analysis, see this analysis from Taxpayers for Common Sense, in which two Nebraska farmers are quoted.

As a Nebraskan myself, I was disappointed to see the Lincoln JournalStar commend the Farm Bill's so-called compromises in an editorial. The only necessary compromises had already been made in the Senate's own bipartisan bill, which had earlier passed the Senate 86-11. If there was any topic the newspaper should have been editorializing on, it would be the failure of Nebraska's congressional delegation to stand up for rural Nebraska interests. Don Bacon, a member of the House Agriculture Committee, actually supported large conservation cuts; Deb Fischer, a member of the Senate Agriculture Committee, helped ensure the demise of the Grassley Amendment.*

The editorial was also premature in praising how the ultimate compromise resolved the issue of work requirements for SNAP (food stamp) recipients. No sooner was the Farm Bill finished than the Trump Administration did by regulation what it could not get in the Farm Bill. Will we see an editorial about that, eating earlier words?

The purpose of this post is not to point out the egg that is now on many faces, but to urge more attention to the real issues of the Farm Bill. Rural America is in steep decline. The disastrous effects of the Trump tariffs will require new legislation as soon as 2019 to try to keep farmers afloat. This means the legislation just passed may have to be opened up again. Maybe this time Congress will come closer to getting it right.

P.S. (January, 2019) One of the reasons the Senate felt under pressure to make bad December compromises was lobbying from farmer organizations to pass legislation, good or bad, to provide the necessary "certainty" to permit farmers to get new operating loans. But within days, Farm Service Agency offices shut down and remain closed due to the government shutdown. So much for the benefits of rushing through legislation.

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* Senator Fischer must also take some responsibility for Nebraska's high property taxes in that she led the effort, while a state senator in the Nebraska unicameral, to narrow the state sales tax base, a source of funding for property tax relief. Rather than relying on fuel taxes for road construction, she led the raid on the sales tax.




Kill the Farm Bill

December, 2018

Washington -- There was an opportunity, in mid-November, for Congress to pass a respectable 2018 Farm Bill. The Senate had already passed its bipartisan bill 86-11 and was in conference with a contentious, partisan House bill containing items that could never become law. The mid-term elections foretold a Democratic takeover of the House in January, dooming the House bill provisions.

All the Senate had to do was to hold firm on its bipartisan version and advise the House that the only alternative to accepting the Senate bill was to extend the existing legislation a year and start over next year with a Democratic House. Senate Democrats held leverage in that they could block 2018 action if the House balked.

It didn't happen. The Senate compromised away the bipartisan-sponsored Grassley Amendment, a reform of wasteful subsidies hurting small farmers, in exchange for deleting a House non-starter on the SNAP program. Moreover, USDA will implement the House SNAP provision anyway, by administrative action, and the new conference compromise not only drops the Grassley-Durbin provisions but opens up even more wasteful and counterproductive federal crop subsidies to cousins, nieces, and nephews of farmers.

The subsidy give-aways are so outrageous that six often ideologically opposed groups from the right, left, and center have joined together to bring attention to them: Taxpayers for Common Sense, National Taxpayers Union, R Street Institute, Americans for Prosperity, the National Sustainable Agriculture Coalition, and the Environmental Working Group.

The 2018 Farm Bill conference report should be voted down. Extend current law another year and start over. Give America the kind of Farm Bill it needs.

And what can Senate Democrats be thinking, to give up leverage when their party desperately needs a Rural Policy to compete for votes in the heartland? Not to mention looking foolish to compromise away something for nothing.




Truth, Ethics, and Citizenship at Syracuse University

December, 2018

Washington -- It was my pleasure and honor last week to be invited by Syracuse University to attend the Tanner Lecture Series on Ethics, Citizenship, and Public Responsibility.

The highlight of two days of events was the address by artist Robert Shetterly at a packed Setnor Auditorium. He was joined on stage by Dr. Mona Hanna-Attisha and Richard Bowen, whose portraits he recently painted in his series Americans Who Tell The Truth.

This was also the first time all of Rob Shetterly's 238 portraits had been assembled together, at the university's Schine Center, for a public show.

During the several events I met two portrait subjects for whom I have great respect for their work in the field of nutrition, Joan Dye Gussow and Stephen Ritz. Joan Gussow has been called the "matriarch of the eat-locally-think-globally" food movement. Stephen Ritz is an urban farmer who does wonders in his Bronx classroom and across the country.

Richard Bowen is my friend of several years; we are connected through the Government Accountability Project. His work a decade ago to try to save the financial world from its own self-destruction is being recounted in a new film by a French filmaker.

Until last week I had never met Dr. Mona Hanna-Attisha, the Flint, Michigan, pediatrician who revealed lead in the Flint water supply. We talked at length about our common experiences in getting data out of government agencies that did not want to give them up, and how we both had to do data analyses on our own, over government objections. She is a force of nature and, as part of an Iraqi immigrant family, an example of what immigrants contribute to America.

My favorite moment from the Tanner Lecture was when Dr. Mona, as she is known, was asked by a person in the audience if she ever felt intimidated by all the local, state, and federal officials who initially denounced her work. She said no, not when she reflected on how important her work was to Flint's children. She actually laughed and said her attitude was "bring it on." As she spoke last week, criminal trials in Michigan continued, fixing responsibility for the Flint public health disaster, a validation of her efforts.

Many thanks especially to Dr. James Clark for his part in organizing these events, to Dr. Julia Ganson of GAP, to Mr. Lynn Tanner for sponsoring the lecture series, and to the Maxwell School of Citizenship and Public Affairs at Syracuse for its leadership in ethics.



Iron Triangles: Part IX

November, 2018

Washington -- A formidable iron triangle is buckling and may be about to break. As described* in earlier posts, its three corners consist of an industry that profits from the exploitation of federal student aid programs, the U.S. Department of Education, and the U.S. House Committee on Education and the Workforce.

Several successful lawsuits have weakened the triangle and others are pending. The suits have been brought by student loan borrowers, state attorneys general, the Consumer Financial Protection Bureau, and non-profit consumer protection organizations.

Those benefiting from the triangle are fighting back by moving key people through the triangle's revolving doors to shore up House and Department of Education staff, by delaying implementation of court orders, by suppressing audit and program review findings, by cutting off inter-agency agreements, and by attempting to preempt state consumer protection laws.

The newest threat to the iron triangle's grip is the upcoming shift in majority control of the House of Representatives. Newly energized Democrats, if they choose to do so, can hold oversight hearings with subpoena powers to look at the nation's student loan mess, especially to see how the Department of Education's corner of the iron triangle contributed to it.

The oversight hearings will likely be led by the House Government Oversight and Reform Committee and the House Education and the Workforce Committee. Other committees may also conduct oversight, as the student loan crisis extends to committee jurisdictions involving veterans, financial services, and appropriations.

The hearings should be conducted before, or at least in conjunction with, the reauthorization of the Higher Education Act. A goal of the hearings should be to determine whether the problems at the Department of Education can be fixed or if the Department is so irreparably broken that Congress must look to other countries, as many are suggesting, for more workable student aid models.

A first question must deal with the cause of the dysfunction. There can be no dancing around the role of corruption and racketeering.** Why, when fraud and perjury are discovered, does nothing happen to remedy it? Indeed, this should be the focus of oversight hearings.

I have worked at many different positions in higher education: in the institutions, in the states, in the associations, in the Senate, in the Department of Education. My work has extended to eleven years of litigation leading to the successful precedent that has enabled several of the aforementioned lawsuits. It is my sad conclusion, after all this, that the Department of Education has been captured, through corruption and racketeering, by the industry it is supposed to regulate, and that there is no alternative but to start over.

I'll be ready to assist however I can in oversight first, then reauthorization.

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*See Iron Triangles, Parts I - VIII

** Racketeering has previously been alleged in student loan lawsuits brought by borrowers, but without the particularity that may now become available through oversight hearings. The hearings will afford an opportunity to look at patterns of racketeering that link revolving door conflicts of interest to fraud and perjury over a period of years, for which there is ample evidence. Another area ripe for racketeering oversight is obstruction of justice, which comes into question when the Department of Education terminates information sharing agreements essential to prosecution of fraud, seeks to obstruct state consumer protection law enforcement through federal preemption, and defies court orders to implement student loan forgiveness and cancellation.

Democrats and Rural Voters

November, 2018

Washington -- The 2018 mid-term elections are nearly over (a few contests are still in doubt). The question that remains is whether the results constituted a Democratic blue wave or a more modest blue ripple.

My conclusion is that Democrats underperformed and will have to modify strategy for 2020 if they hope to take the the Senate and the White House. Democrats in 2018 did well in urban and suburban areas, but showed deep and persistent weakness in rural areas.

Democratic victories for governorships in Kansas and Wisconsin were exceptional, but attributable to voter aversion to Republican candidates Kris Kobach and Scott Walker more than a rejection of Trumpism. Democratic senators Joe Donnelly, Heidi Heitkamp, and Claire McCaskill all lost badly after Donald Trump went into their states and brought out the rural vote against them. Jon Tester survived in Montana only because he is a farmer himself and has a certain immunity from claims that he is out of touch with rural America.

I am far from alone in this reading of the election returns. David Leonhardt writes: "Democrats don’t need to win in most rural areas. But they do need to avoid losing by 50 or 60 percentage points....The Democratic Party simply cannot write off nonmetropolitan America — and try to overwhelm it with a rising urban and suburban coalition."

Michael Tomasky writes similarly: Democrats "need a rural policy...including an emphasis on exports, economic diversification and conservation." Not to mention opioids, nutrition, and broadband.

E.J. Dionne suggests this: "For the longer term, Democrats need...a new agenda for rural, small-town and small-city America. Confining opportunity to the large metropolitan areas will deepen national divisions and, by the way, foster long-term Republican control of the Senate."

The Guardian quoted
Tom Vilsack about the "failure of the Democratic party, particularly its national leadership, to offer a vision to rural voters who feel the party has little to say to them and is focused on urban supporters."

As if to hammer this lesson home for Democrats, there were a few House candidates who went after the rural vote and won. Lauren Underwood in Illinois went door to door to farmers who said politicians had not done that in years, and she won. Three Democrats in Iowa held their rural losses down by reminding voters of the effect of the Trump tariffs on commodity prices, and they won.

Contrast this with the Claire McCaskill debacle in neighboring Missouri. She went into rural areas actually campaigning against "crazy Democrats" and, to no one's surprise, was defeated badly. If she had had a Democratic platform for rural America, the outcome might have been different. Likewise, Iowa Democrats could almost certainly have defeated Kim Reynolds and Steve King had there been any national Democratic leadership on rural issues.

This is ironic because there is great discontent in rural America and Senate Democrats wrote a decent 2018 Farm Bill – blocked by Trump – that they could have campaigned on. It was an opportunity wasted.

There are voices counseling otherwise, of course. Some are saying that Democrats can win only by exciting the urban and suburban base to ever-higher turnout and that it is a waste of time to try to persuade rural America to give Democrats a look. This is foolish and will lead once again to Democratic underperformance. Why not both high turnout and persuasion?