When you put a bald eagle trailing blood on the front cover of your book, it is a fair assumption you are not writing about America in ascendence. Over 300-plus pages, Steven Brill’s Tailspin puts forth a thesis that well-intentioned efforts at societal reform have been perverted and turned our nation into one of crumbling infrastructure, decaying schools, and a society cleaved between a shrinking group of haves and an every increasing majority of have-nots. Expanding access to Ivy League schools? A great idea that has created a meritocracy (except those who benefitted have become greedy Wall Street types). Ralph Nader getting labels put on dangerous products? Also important until corporations transmogrified it into a legal rationale for unlimited campaign spending. Civil service protections? Important so workers were not fired at the change of an administration, but now making it far more difficult to remove underperforming employees. And on and on.
The idea of no good deed going unpunished pervades Tailspin and will not uplift anyone hoping things will change anytime soon. Brill is not saying anything that was not already covered in John Edwards’s “Two Americas” message in 2004 or, for that matter, Hillary Clinton’s “It Takes A Village” book of the mid-1990s but he puts a sharper point on things by rummaging into some of the darker corners of law and policy that someone of his background (a double Yalie, undergrad and law who transitioned to journalism) can do.
And so, Brill will drag you into the backwaters of regulatory agencies who have to sift through thousands of public comments submitted by lobbyists trying to kneecap any attempt at meaningful oversight of the workplace, the environment, or our financial institutions. You will see the procurement process (numbingly boring as it is) result in rubber stamping defense projects whose price tags soar without anyone complaining because the projects are sprinkled through hundreds of congressional districts and inject commerce into every one, and the decades-long process to get the permits and approvals necessary to replace critical transportation projects like a rail tunnel under the Hudson River, which was originally proposed in 1971 and is still years, if not a decade or more away from being constructed.
In all of this, Brill makes the important point that if you are wealthy in America, not only is government dysfunction not a problem for you (you can, for example, sidestep mediocre public schools by paying for private education and shelter your wealth with the help of accountants) it actually benefits you - gridlock in DC means less chance that anything will be done to tinker with the carefully constructed matrix of benefits and protection granted to you by the tax code, access to higher education for your children, and the criminal justice system. It was not always this way, but as Brill illustrates, the rise of a new class of white collar professionals bent not on the common good, but personal enrichment, has hollowed out the middle class, concentrated ever more wealth at the top, and left most people behind.
The villains are as familiar as they are unsurprising - lobbyists, lawyers, and venal corporate leaders whose raison d’être is to accumulate as much wealth as possible while sharing as little of it with the rest of society. While Michelle Obama observed that when you climb the ladder of success you should help lift others up, Brill is focused on those who have pulled up the ladder behind them, making it nearly impossible for the social mobility and success that is woven into the Alger Hiss version of America but bears little resemblance to the reality of our nation.
His autopsy of the post-Great Recession years is emblematic. The after action, focused on squeezing financial penalties from banks as opposed to levying criminal liability on the individuals who made the decisions resulting in the housing market’s collapse may have resulted in some splashy headlines, but as Brill rightly points out, this path-of-least-resistance model did not curb the abuses in a meaningful way. If anything, financial institutions have consolidated their gains in market share while a now-favorable regulatory environment is already scaling back what modest reform was done to punish them. Not only was moral hazard not punished, but many innocent people, whose homes were lost, jobs destroyed, and lives turned upside down, struggle to get by while the real culprits got off scot free.
I did part company when Brill turned to the political landscape that created these inequities. As a lawyer, Brill is surely familiar with the concept of contributory negligence, but his “both sides are to blame” conclusion is unfair. For whatever shortcomings Democrats may have, to place blame equally on them and Republicans for the current state of affairs minimizes the behavior of the latter while unfairly elevating the actions of the former. Democrats in Congress can point to any number of bipartisan efforts they engaged in with Republican Presidents from Reagan to both Bushes. Conversely, when Bill Clinton and Barack Obama were sworn in, they were met with lockstep resistance to anything and everything they proposed. When the stock market melted down in 2008, it was Nancy Pelosi who wrangled the votes to ensure passage of TARP; when Barack Obama proposed legislation to lift us out of that crisis, he got a grand total of three Republican votes - none in the House and three in the Senate.
The idea that the gas tax has not been raised or the marginal income tax is not higher is not a bipartisan failure any more than it is fair to blame Bill Clinton for the Great Recession because Glass-Steagall was repealed. Politics requires nuance and context and so does journalism. While you can lambast Clinton for welfare reform, you also need to give him credit for raising taxes on the wealthy and balancing the budget. Republicans simply redistribute wealth through tax cuts while starving government of needed resources, a far greater sin without any of the upside of policy making that both Clinton and Obama engaged in. Lamenting the shortcomings in Obamacare without pointing to the efforts Obama made to get Republicans on board (he basically adopted a Heritage Foundation idea!) is a grave disservice to his work and hands Republicans a pass not just for refusing to help but not paying any political penalty for it.
Of course, to see what a government values, you need only look at where it spends its money. As Brill discusses, the cost overruns on the F-35 fighter plane alone have been more than $100 billion, enough to fund universal pre-K and tuition-free community college for a decade. Yet, we barely bat an eyelash at this form of government waste while Republicans whine that there is simply no money for such important efforts. Similarly, tax cuts enacted last year that will reduce the burden even more on corporations, the wealthiest Americans, and heirs to multi-million dollar estates are being made up by borrowing money to fill the gap.
In my view, Brill is imprecise in pinpointing our decline to the late 1960s. I would argue it is a more recent phenomenon dating to Reagan’s election in 1980. From then, the idea of progressive taxation has largely fallen by the wayside. Even Clinton and Obama felt the need to shield taxpayers well into the top 10 percent of all earners from any tax hikes while nosing the top rate just south of 40 percent for people at the very top. While doing so had the salutary effect of lowering deficits without any adverse effect to the economy, other changes, to capital gains taxation and the carried interest loophole, have provided accountants, lawyers, and lobbyists other opportunities to reduce their clients’ tax obligations.
Brill does highlight some important initiatives - a job retraining program in New York City teaching people how to write computer code, good government watchdogs who monitor campaign spending and regulatory policy, and think tanks churning out sensible, middle-of-the-road white papers that surely circulate widely among the Georgetown cocktail crowd (one even became the foundation for a bipartisan immigration reform bill that Republicans snuffed out while Obama was in office), but they seem too few and far between to be of much consequence. And while Brill points fingers at the usual suspects, one group that escapes opprobrium are the voters themselves. The fact is, on many issues, from gun control to taxes, the majority of Americans support policies that are not being enacted into law, yet because voter participation is so low and so many congressional districts are gerrymandered (another bugaboo Brill discusses), politicians - and I am speaking specifically of Republicans - have no incentive to change. Instead of advocating for automatic voter registration, moving Election Day to Saturday, or making mail-in voting optional nationwide, Brill naively pins his hopes for “storming the moats” as he puts it, on the same type of black swan events that we’ve seen before, but led to little systemic change.
It is, in its way, the same observation that Susan Sarandon made in 2016 that she did not fear a Trump presidency because it would accelerate the revolution. But here’s the thing - the closest we came to this situation was in 2008, and while it did result in Obama’s election and large Democratic majorities in Congress, within two years, some of the very same villains Brill laments - the Super PACs and their corporate funders - had mounted a counter-attack that handed the House of Representatives to Republicans and essentially snuffed out any further progress. After two two-term Democratic presidencies, it is clear that the better outcome is to elect a successor who will build on the hard-earned gains of others.
Instead, I suspect what we have in store for us is a movie we have already seen twice. It will be left to some future Democratic President to clean up the fiscal, economic, and foreign policy mess of a Republican President, and, if history is any guide, have that gratitude repaid by electing a successor who will tear it all down again.
Follow me on Twitter - @scarylawyerguy