by Kristin Eberhard (@KristinEberhard), Sightline Institute

Most Americans think the candidate with the most votes should win the American presidency. States have the power to make that happen by simply agreeing to assign their Electoral College votes to the candidate who wins the most votes nationwide. In Cascadia, Washington has already done so and Oregon has a chance to follow suit in 2017.

The Constitution leaves it up to the states to choose how to assign their Electoral College votes, and in the 19th century, most states realized the best strategy for maximizing their voice as a state was to assign all their votes to one candidate—the state winner. The Constitution’s rules for the Electoral College don’t dictate this state-winner-take-all strategy, but once one state adopted the strategy, almost all the others followed suit. It’s a reasonable strategy for states but has terrible consequences for voters. And it doesn’t even do the things its defenders claim, such as protecting small states.

But there is a simple way for states to exercise the power the Founding Fathers gave them: join the National Popular Vote Interstate Compact, which would make every voter in every state count equally. The Electoral College stays in place—no Constitutional amendment required. But voters in every state would matter. Presidential candidates would vie to win the most votes across the country instead of scuffling over voters in a dozen swing states.

In my previous article, I explained how the National Popular Vote Interstate Compact cleverly uses state powers to fix today’s problems with the Electoral College. Below, I dive deeper into the history and consequences of the Electoral College, debunk common defenses of its current set-up, and dispel common arguments against a new Electoral College system that would implement a national popular vote.

The Founding Fathers intended to bestow the power to select the president on a small group of men “most likely to possess the information and discernment” necessary to choose a good president. Those wise electors would get together and deliberate, protecting the presidency from dangerous demagogues and con artists who might fool the masses but couldn’t fool the electors. That protection doesn’t sound so bad. The problem is, the Electoral College doesn’t actually work that way and never has.

In fact, the electors don’t deliberate. They vote how the state legislature tells them to, and for the past century or more, most state legislatures have told them to cast all their votes for the candidate who won the most votes in the state. The state-winner-take-all Electoral College strategy translates to “red” states and “blue” states, obfuscating voters’ political diversity within state boundaries. It lets every eligible voter cast a vote for the president, but it makes some votes count more than others, distorting presidential campaigns and effectively disenfranchising huge swaths of American voters.

Votes in swing state are worth more than votes in “safe” states

Under the current state-winner-take-all strategy, votes in swing states are worth more. Because winning 51 percent of the votes in a state yields exactly the same number of Electoral College votes as winning 71 percent of the votes in that state, campaigns ignore voters in “safe” states where the margin is greater than 5 percent—meaning they ignore the vast majority of American voters—and only campaign in the states where margins are close.

In 2016, candidates lavished 91 percent of their campaign stops on the 11 states with close margins. They made two-thirds of their campaign stops in just six states with margins under 2 percent.

 

Most states choose to give 100 percent of their Electoral College votes to one candidate, even when the other candidate won close to half the votes in that state. This state-winner-take-all system elevates a few hundred thousand votes in a few swing states to game-changing status. But candidates can safely ignore the tens of millions of voters in “safe” states—38 states plus DC. Millions of voters continue to turn in their ballots, even though their vote has no power to change the outcome of the presidential election.

In the 2016 presidential election, Hillary Clinton won 2.7 million more votes than Donald Trump; so far, Clinton has won 65.5 million votes (48.2 percent) to Trump’s 62.8 million (46.2 percent). But Donald Trump won the election because the state-winner-take-all Electoral College system weighted just 107,000 voters in three swing states as counting more than 100 million other voters across the rest of the country.

One analysis attempts to calculate the combined effect of unequal distribution of Electoral College votes and unequal electoral power between swing states and “safe” states. It estimates that Idaho ranks 39th, Oregon ranks 36th, and Washington 40th in terms of the power each voter wields in the presidential election. The state-winner-take-all Electoral College system is not kind to Cascadia.

Votes in some small states are worth more than votes in large states

A Wyoming voter has almost four times the power of a New York voter to elect the president. States get one electoral vote for each US senator and one for each representative. And since every state has two senators no matter its size, Wyoming has three electoral votes for its half a million residents (one for each US senator and one for its single representative). That works out to one electoral vote per 142,741 people. New York’s 20 million residents have one electoral vote for every 519,075 people.

Minority party votes within a state do nothing to elect the president

Are you a Republican in Oregon? A Democrat in Idaho? Thanks for voting, but your vote does nothing. The current red-state-blue-state Electoral College strategy means Oregon will assign 100 percent of its Electoral College votes to the Democrat no matter how many Oregonians like you turned in a ballot. Idaho will do the same for the Republican candidate.

You could vote or you could just watch Netflix. You could organize everyone in your community to vote with you. Or not. Your down-ballot choices will matter, but when it comes to electing the president, it really doesn’t matter what you and like-minded people in your state do.
One solution? Use the Electoral College to create a national popular vote.

A new Electoral College strategy would make every vote count

States can sign on to the National Popular Vote Interstate Compact, agreeing to assign all their Electoral votes to the national popular winner once signatories add up to 270 Electoral votes. Changing the Electoral College status quo strategy from “win the most swing states” to “win the most votes” would make every vote count. The principle of “one person, one vote” would govern America’s presidential election. One person voting in New York would have exactly as much power as one person voting in Wyoming. One person voting in a former “swing” state like Florida would have exactly as much power as one person voting in a former “safe” state like Oregon or Washington.

Conservatives in “blue” states and progressives in “red” states would have a voice

Watching the map light up red and blue states on election night makes one almost believe the illusion that Oregon has no Republican voters and Idaho no Democratic ones. Those voters exist, but they are silenced by the tyranny of the red-state-blue-state Electoral College system.

Pushing past the trickery of the “red” and “blue” state maps to look at county-level voting reveals a mass of Republican voters in Oregon and Democratic voters in Idaho. Those Americans patriotically voted, but officials might as well have thrown their ballots straight in the trash for all they matter to the presidential race.

2012-nationwide-county-map-shaded-by-percentage-won-by-inqvisitor-cc
2012 election results by county, shaded according to winning candidate’s percentage of the vote by Inqvisitor used under CC BY-SA 3.0

With a national popular vote, on election night, we would watch a red bar and a blue bar build, vote by vote. Every single vote, no matter where it was cast, would add to that candidate’s potential victory. Republicans in Oregon and Democrats in Idaho could proudly turn in their ballots knowing they can watch their vote add to the victory bar.
Candidates would pay attention to convincible voters all over the country, not just in swing states

If every vote counted equally, a candidate would go everywhere there are convincible voters. She would travel around the country to talk with voters because every voter she wins over could push her to victory.

Donald Trump correctly pointed out that, with a national popular vote, he would have campaigned in other parts of the country besides the 12 swing states.

States might stop suppressing voters and start encouraging voter turnout

In the 19th century, states figured out they could wield the most clout in the presidential election by assigning all their electoral votes to a single candidate, so one by one they adopted the state-winner-take-all strategy. If states instead adopted a national popular vote—a national-winner-wins Electoral College strategy—the incentives would switch, and states could magnify their Electoral power by boosting the number of voters who cast ballots in the state. As a result, the rash of state voter suppression laws might reverse course. More states might start following Washington and Oregon’s lead by implementing vote-by-mail, on-line registration, early voting, automatic voter registration, and modern methods of cleaning voter rolls (not purging thousands of citizens from the voters rolls).

More people might participate in down-ticket races

States encouraging—not suppressing—voter participation, and presidential candidates paying attention to all voters might create a new buzz of voter participation across the United States. Some new voters would also pay attention to all candidates and vote down the ticket, increasing civic participation in state and local races.

The current red-state-blue-state Electoral College system does NOT do many of the things its defenders claim: It doesn’t protect small states

The current Electoral College system protects swing states, not small states. Small states have a disproportionate number of electoral votes, but this surplus doesn’t translate into election power. The only small state to receive attention during the presidential campaign is New Hampshire, because it is a swing state. The 12 small non-swing states together have 40 electoral votes—more than twice Ohio’s 18 electoral votes. However, Ohio received fully 73 of 253 post-convention campaign events in 2012 and 48 of 399 visits in 2016, while the 12 small non-swing states received zero visits in either year.

If protecting the interests of small states means electing a president who is ideologically aligned with most small state voters, the current Electoral College strategy fails again. The small states don’t have a “small state” ideology but are evenly divided between those that usually vote Republican (Alaska, Idaho, Montana, North Dakota, South Dakota, Wyoming) and those that usually vote Democrat (Delaware, DC, Hawaii, Maine, Rhode Island, Vermont).

Finally, one could look to the small states to see whether they think the current system is in fact better for them than a “win the most votes” strategy. Voters on both sides of the aisle in small states are chomping at the bit for a national popular vote. And of the 12 non-swing small states, ten have either signed the National Popular Vote Interstate Compact (DC, Hawaii, Rhode Island, Vermont), passed a bill through one house (Delaware, Maine), or introduced a bill (Alaska, Idaho, Montana, North Dakota). Defenders may claim the Electoral College status quo is for the good of small states, but small states seem to disagree.

It doesn’t make the United States a republic

Some defenders of the status quo point out that the United States is a republic (a representative democracy), not a direct democracy. True. But status quo apologists intimate that a national popular vote for president would create a direct democracy. Not true. In a direct democracy, people vote on issues, not officials.

Citizens’ initiatives in Oregon and Washington are examples of direct democracy. A country where voters elect a president to represent them is still a representative democracy. It’s just a republic where every vote counts equally instead of a republic where some votes count more than others.

It doesn’t elect a president who represents the states

The United States is a federal system: a collection of state governments gathered into a single nation. The US Constitution allotted limited, enumerated powers to the federal government and reserved all others to the states. It gave state legislatures the power to choose the electors who would, in turn, choose the federal president. The Constitution does not say how legislatures must choose electors. Legislatures have complete control over that decision; they could choose electors without running a statewide election at all.

Under the current state-winner-take-all strategy, a Wyoming voter has almost four times the power of a New York voter to elect the president.

In practice, since the early 19th century, most states have conducted elections to measure popular will in their states. They have never sent electors without strong guidance as to whom those electors should vote for. Typically, electors are chosen because of their fervent support for a particular candidate, so no one even has to tell them how to vote. Since the 1820s, the Electoral College has been simply a mechanism for conveying the will of the majority of voters within each state; it’s not a deliberative body of wise elders. Electors are not the Constitutional equivalent of superdelegates. Consequently, presidential candidates campaign for the support of people, not states or legislators or electors. And they only campaign for the support of people in swing state.

The county-by-county breakdown in the map above shows that state lines have little to do with voters’ preferences. Oregon does not exhibit cohesive statewide interests. Western Oregon votes much more like western Washington than like eastern Oregon. Eastern Oregon, for its part, votes more like Idaho than Portland. Rather than pretending that states have coherent interests that they express in casting electoral votes, a national popular vote would let voters express their interests and would make every vote count.

A national-winner-wins Electoral College system would NOT do many of the things its attackers claim

The National Popular Vote Interstate Compact would not ditch the Electoral College or subvert the Constitution

Defenders of the status quo claim that the National Popular Vote Interstate Compact would “ditch” the Electoral College. Not true. The Founding Fathers gave states the power to control the Electoral College. States tried out different systems, first splitting their electoral votes, then consolidating their votes in a state-winner-take-all strategy. It is perfectly within their Constitutional power to try a national-winner-wins system, deciding to assign their electoral votes to the popular winner.

Candidates could not win a national popular vote by campaigning only in the biggest cities

Some status quo defenders worry that a national popular vote would mean candidates only have to win the big cities. But the big cities just aren’t that big. The 50 biggest US cities—which include Arlington, Texas, population 365,000—make up just 19 percent of the US population. Campaigning in those 50 cities and ignoring the rest of the country would be a losing strategy; even if a candidate was wildly successful in the cities, winning a whopping 75 percent of the vote, she would thereby tally just 14 percent of the popular vote. If candidates could win a popular election in cities alone, then candidates would already campaign only in the big cities of the swing states. Instead, presidential campaigns in Ohio visit Youngstown as well as Columbus and in Michigan they visit Allendale as well as Detroit. If every vote counted, candidates would do the same in every state.

A national popular vote would not encourage fraud

If you were trying to steal one of two hypothetical elections, which would you target:

An election that can be won or lost by 500 to 200,000 votes in one or two geographical areas governed by one or two sets of voting rules; or
an election that can only be won or lost by 500,000 to 10,000,000 voters in 50 locations with 50 different sets of voting rules.

Obviously, option (1) is more vulnerable. The 2000 presidential election came down to 537 votes in Florida—a shockingly sensitive target for fraud in a country of 300 million people. In the 2016 election, the margin of victory was 11,837 votes in Michigan; 27,257 in Wisconsin; 68,236 in Pennsylvania. An aspiring fraudster would have to be more ambitious to try to change tens of thousands of votes in three states than 500 votes in one state, but not nearly as ambitious as trying to switch the 2.7 million votes needed to change the outcome of the 2016 popular vote.

But it might improve election integrity through post-election audits

The specter of a national recount could exercise a positive impact on the integrity of American elections by spurring more states to embrace best practices for conducting routine post-election audits.

A recount is a reactive response to a crisis; when the margin is close and election officials aren’t confident the system is sufficiently free of errors that might change the election result, officials recount all votes to check the final tally. Routine post-election audits are a proactive mechanism for maintaining election integrity; by routinely auditing a statistical sample of ballots, regardless of the margin of victory, officials can reveal errors or fraud and correct them. Routine audits help officials continually improve election integrity and minimize the chance of a crisis by rooting out the potential for counting errors or fraud risks before they become a crisis. With each successive audited election, integrity improves and officials are more confident that vote counts are accurate the first time, so recounts are only needed in the closest races.
A national popular vote would not lead to a national recount

Recounts become less likely as the pool of voters gets larger. Most recounts only shift a few hundred votes. In the past six presidential elections, margins have ranged from a low of 540,000 in 2000 to 8.2 million in 1996. Even the tight 2000 race would not have warranted a national recount because of the vanishingly small likelihood that more than half a million votes could have been miscounted. But the Florida margin of 537 votes triggered a state recount (although the recount was never completed because the US Supreme Court halted it). In 2016, the national margin of 2.7 million votes comes nowhere close to recount zone, though a margin of 22,177 triggered a recount in Wisconsin.

Even as a percentage of the total vote, 2000 would not have required a recount. Recounts never shift more than a fraction of a percent of the vote, and shifts are smaller in larger voting pools. From 2000 to 2015, recounts of less than one million shifted 0.039 percent of the vote while recounts of more than two million votes shifted just 0.016 percent of the vote. The national voting pool in 2000 was 105 million so a national recount would have yielded an even smaller margin shift. But even 0.016 percent would have shifted just 16,864 votes in 2000, nowhere near enough to change the election results.

Most states set recount thresholds between 0.1 percent and 0.5 percent, with smaller margins for larger populations. After reviewing recount data, California, with a voting population of 13 million, passed a new law in 2015 setting a recount threshold of 0.015 percent for statewide races. The national voting pool is now 135 million, many times larger than any state, so a safe recount threshold would be lower than California’s 0.015 percent. Let’s say 0.01 percent. Yet even a conservative national recount threshold that’s ten times that value, 0.1 percent would have come nowhere close to triggering a recount of even the tightest presidential election in recent history; the 2000 popular vote margin was a comfortable 0.52 percent. The national margins in the other five most recent presidential races range from 1.9 percent (2016) to 8.5 percent (1996), all completely safe from recounts.

The state-by-state winner-take-all system that evolved in the early 19th century for the Electoral College’s operation creates 51 smaller voting pools, which multiplies the probability of a recount taking place in at least one. A larger national pool decreases the chances of a recount. If the desire to avoid even the possibility of a national recount spurred more states to conduct routine post-election audits and proactively weed out counting errors, as described above, the risk of recount would diminish further.

Let’s make every vote count

The Founding Fathers gave states the power to choose the way they cast electoral votes. States could seize that power and assign electoral votes to the popular winner, making the United States a true representative democracy. Every vote would count. Every American voter would have equal power to elect the president.

Republished with kind permission of the author and Sightline. This article is part of the Sightline series Archaic Election Methods Cripple Democracy.

by Chuck Marohn, Strong Towns

Earlier this year, we had a meeting at Strong Towns where I presented a 2017 budget to our Board of Directors. We spent considerable time going over it, scrutinizing our work plan for the year, how it related to our Strategic Plan and how sound our revenue projections were. There was some anxiety in the room as we are projected to run a deficit in the first half of the year (something you can help with today by becoming a member), although, if all goes well, we make up the deficit in the second half the year (again, thanks to our members).

Imagine, however, if the budget I presented didn’t balance but instead went something like this:

Projected Program Expenses: $760,000

Projected Revenue (All Sources): $390,000

Funding Gap: $370,000 (49%)

As if that weren’t bizarre enough — note that our board would never tolerate something like that — imagine that, instead of dwelling on the fact that we only have half of the revenue we say we plan to spend, I spend the overwhelming majority of the meeting focusing on our plans and programs; all those things we are planning to do with the money we don’t have. In my presentation to the board, and in their follow up discussion, I only give the briefest mention of our massive funding gap.

If this actually occurred, I should be fired, Strong Towns should be closed down and all of our members would have a right to feel violated by our organization’s incompetence. Fortunately, we operate in the real world. Strong Towns is fiscally prudent and we have a board that takes their fiduciary responsibilities seriously.

Sadly, the same can’t be said about the Omaha-Council Bluffs Metropolitan Area Planning Agency (MAPA) and the 24 voting members of their Transportation Technical Advisory Committee (TTAC). After I spoke there last month, I was able to obtain the Metro Area Travel Improvement Study presentation that the TTAC received on the day of my visit. It was on the lips of some of those who later attended my presentation. My thoughts are a sharp contrast to what they had heard earlier in the day.

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I found the chart on Slide 10 to be particularly humorous.

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I can imagine the bureaucratic dialog that brought that about…. Let’s model all roads and no transit and then let’s model all transit and no roads and then let’s model all of both. How rigorous (not), but guess what? Slide 11 tells us that “Strategy Package 7” will have a “Lower Overall Cost” than if Omaha’s transportation planners got to do everything they envisioned. Talk about savings!

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On the twelfth slide, we get a preview — in standard engineering font — of the fact that there are costs and revenues associated with implementing all these great plans.

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Then, on Slide 13, we get the tragic news: None of this is remotely possible because we only have half the money we need. Sorry everyone for wasting your time.

 

 

The rest of the presentation is a re-evaluation of what is actually possible given the available funding, the difficult tradeoffs that entails and a detailed analysis of what the Omaha-Council Bluffs Metropolitan Area Planning Agency must do in order to meet it’s objectives given funding constraints.

Just kidding. The remaining 18 slides in the presentation detail the awesome stuff MAPA is going to do, despite not having the money to do it. I’ve included those slides in the carousel below. Just sit and watch this for a while and think about the massive effort that has gone into planning for projects, alternatives and improvements that will never happen. That have no chance of happening. All the public meetings. All the surveys. All the mapping and engineering. All the preliminary design. What a massive amount of effort and for what?

This would be comical if it weren’t so commonplace. We highlight the Omaha-Council Bluffs MAPA because I became aware of this ridiculous presentation, but understand that this is the same kind of rigor you’ll find in transportation planning agencies all over the country. That’s not funny; it’s infuriating.

The $3.7 billion gap the TTAC cavalierly acknowledges amounts to $7,300 per resident of Omaha and Council Bluffs. A family of four is expected to come up with $30,700 of the budget already and now, if all these plans are to become reality, that family is expected to spend another $29,000 filling the financial gap. Is this even possible? Does anyone even care?

These are important questions not because money is the end-all-be-all. It’s not that government is necessarily wasteful or bloated or that taxes are too high or too low. Discerning whether or not these plans are even possible is critically important because, when we ignore them, we don’t honestly discuss the tradeoffs inherent in our approach. We pretend we can have it all and we end up with outcomes far below what they should be.

Go back to Slide 5 with the performance objectives. Look at it again, but this time, realize Omaha has half the money its transportation planners pretend they have. With a limited budget, what is the best way to:

  • Reduce travel delays while improving transit access?
  • Provide access to jobs for the disadvantaged while improving air quality?
  • Reduce fatalities and serious crashes while increasing system reliability?

With limited funds — when we finally realize we can’t just engineer our way through every problem with brute force — we discover a whole other world exists. In this world — what non-transportation planners call the “real world” — there is more than just traffic throughput, speed and access. There is the vast complexity of humanity — the broad range of alternatives –that constitute a city.

We can improve safety by lowering speeds. We can improve air quality by making our neighborhoods more walkable and bikable. We can address environmental justice issues by switching our investments from highways on the edge of town to neighborhood improvements. We can create jobs, and broadly build wealth in our community, by making neighborhood commercial viable again. We can improve our financial health by making the city a place to be and not simply a place to drive through. Dealing with financial reality gets us to a better conversation.

These are all nuanced approaches that will never be seen through the myopic prism of transportation planning. The outcomes we see in Omaha and other cities around the country are the direct result of the centralization of transportation funding and its distribution through the MPO system. This approach has distorted our local conversations to the point where basic math — $7.6 billion is greater than $3.9 billion — can be ignored. It’s not healthy and it needs to end.

The incentive local governments have is to make their infrastructure funding gap appear so large that federal and state policymakers will have no choice but to provide more money. This is why, in a presentation like this, nobody dwells on the finance slide, the one showing a devastating shortfall in funding. A normal response to that slide would be panic, but transportation funding is not normal.

Cities need to be given the responsibility — and the ability — to fund their own local transportation improvements. As tough as that transition may be, it is the only way we are going to have the conversations, and decisions, needed to build a nation of strong towns.

Reprinted with kind permission of Strong Towns. Chuck Marohn is a Professional Engineer (PE) licensed in the State of Minnesota and a member of the American Institute of Certified Planners (AICP). He is the Founder and President of Strong Towns. Marohn has a Bachelor’s degree in Civil Engineering from the University of Minnesota’s Institute of Technology and a Masters in Urban and Regional Planning from the University of Minnesota’s Humphrey Institute.

Marohn is the author of Thoughts on Building Strong Towns — Volume 1 and Volume 2 — as well as A World Class Transportation System. He hosts the Strong Towns Podcast and is a primary writer for Strong Towns’ web content. He has presented Strong Towns concepts in hundreds of cities and towns across North America, including during an October 2016 Oregon tour.

The trouble with infrastructure

by Kurt Cobb, Resource Insights

The trouble with infrastructure is that it breaks down and needs to be repaired, it wears out and needs to be replaced, and it gets destroyed and needs to be rebuilt. All that requires energy, resources, labor and money.

Conceptually, here’s the problem we face. The bigger we make any part of our infrastructure–roads, pipelines, electricity grids, water and sewer systems–the more expensive it becomes just to keep it in operating order. The same is true for our industrial plant, transportation system, commercial buildings and private homes. Things fall apart over time; entropy makes sure of that. To keep things from degrading to the point where they cannot function requires resources, labor and money–all of which cannot be spent on new infrastructure or productive investment, that is, all of which must go to maintain what we have rather than grow the economy.

The ancient Romans came face to face with this reality. Expansion of the empire had been paid for with booty seized from conquered populations. But once the expansion stopped, so did the booty. The Romans increasingly had to tax themselves in order to pay for large armies to protect the now very long border and for the necessary improvements in roads and other infrastructure to maintain their administrative and military presence throughout the empire.

It didn’t last. Eventually, the Romans had to pull back. They had to shrink the empire.

Today, we don’t think so much in terms of territory as Gross Domestic Product (GDP) when evaluating our material progress as nations. It turns out that one of the ways to keep the GDP growing is to skimp on maintenance.

In the United States, water systems have been a good place to skimp. After all, much of that infrastructure is underground or at sites remote from the cities it serves. Few will notice. Here’s what the experts are saying about the silent degradation of America’s water infrastructure:

Estimates of current investments in water infrastructure indicate that the backlog of deferred investments is increasing and renewal cycles are close to 200 years across the range of utility sizes. Resistance to rate increases combined with lack of appreciation of the buildup of renewal needs reinforces the need for effective business cases for pipe renewal. Based on these and other evaluations, it appears that a substantial gap exists between current expenditures on water main renewal and the investment levels needed to sustain system integrity. (emphasis added)

The American Society of Civil Engineers (ASCE) has given near failing grades to the American infrastructure. In a report the ASCE describes the problems with the drinking water infrastructure this way:

Drinking water is delivered via one million miles of pipes across the country. Many of those pipes were laid in the early to mid-20th century with a lifespan of 75 to 100 years….While water consumption is down, there are still an estimated 240,000 water main breaks per year in the United States, wasting over two trillion gallons of treated drinking water.

But drinking water is just one example. A friend alerted me to recent train derailments at New York City’s Pennsylvania Station. The derailments caused enough damage to curtail train service for days. The problem is a 100-year-old infrastructure not built for the increasing demands put upon it. The governors of New York and New Jersey want Amtrak replaced as the station’s operator.

It’s no wonder that the perennially underfunded Amtrak is having trouble keeping up with needed maintenance. But putting someone else in charge doesn’t solve the problem of skimping on maintenance unless there is extra money. So, will the governors provide it?

Then there is America’s oil and gas pipeline infrastructure. Most of those pipelines are more than 50 years old. We seem willing to pay for rapid expansion of this system as is evidenced by 125,000 miles of new pipeline built since 2010 to accommodate the oil and gas drilling boom in the country.

But maintaining that infrastructure is just a drag on profits–until the consequences become so big that the clean-up and repair costs dwarf the phantom returns which deferred maintenance makes possible.

To be fair pipeline operators don’t want leaks or breakdowns. But neither do they want to spend more than they have to to maintain their systems. Who decides how much that should be is a problem regulators and companies are going to be hashing out as pipeline accidents continue to make the news.

All of this brings us back to the conceptual framework I presented at the onset of this piece. Here I turn to the much maligned and much misunderstood project called Limits to Growth. Limits to Growth, of course, refers to modeling of the trajectory of worldwide economic growth in the early 1970s and updated twice since then as detailed in three separate books.

The most frequent outcome of that modeling is the collapse of industrial society starting somewhere in the middle of this century. A common misunderstanding of that model is that collapse is the result of “running out” of resources. But a close reading of Limits to Growth produces a more nuanced and troubling answer.

It is the lack of capital needed to grow which produces the limits referred to in Limits to Growth. We will end up spending so much just to maintain our continually bloating infrastructure (in the broadest meaning of that word), to extract the needed natural resources to do that, and to fight the effects of pollution (through, for example, water and sewage treatment) and now climate change (through, for example, the building and maintenance of seawalls), that we won’t have anything left over for investment. When that happens, growth stops. Eventually, the economy shrinks as poorly maintained infrastructure become less productive. This is a collapse, but perhaps not a rapid one.

Infrastructure investment is lauded as the gift that keeps on giving. And, long-lived public and private infrastructure can and does increase economic productivity. But infrastructure can also become the leech that keeps on sucking when it becomes overly large and when we choose temporary economic pain relief and stimulants over the true medicine of forging a new trajectory for our infrastructure which requires deference to the limits we face.

Reprinted with kind permission of the author, Kurt Cobb, an Oregon author, speaker, and columnist focusing on energy and the environment, a regular contributor to the Energy Voices section of The Christian Science Monitor and author of the peak-oil-themed novel Prelude.  Cobb blogs at Resource Insights; kurtcobb2001@yahoo.com.

by Michael Kovacs

We use 40 years in Fate because that is the lifecycle of a concrete street, which is what we require in new developments.  Of course, for the first 30 years, the road only has minor issues (if it’s built well) but the last 10 years, years 30 through 40, are just horrible for maintenance and the driving/biking public’s traveling experience.

If you’re a sports fan, especially a baseball fan, you’ve probably seen the movie Moneyball with Brad Pitt.  It’s the true-to-life story of the Oakland A’s and how manager Billy Beane, with a small budget to pay salaries, uses the expertise of his assistant’s math and statistics to figure out that players who get on base can make a big determination of whether a team will win or lose.  They go on to win their first playoff series in years and made the playoffs for four consecutive years on their low budget.  It’s a great movie. I highly recommend it.

Cities are a lot like a sports team, and what we do is similar to what Billy had to do.  He had salary money and used it to get players for a value, who could get on base.  As City Managers, we help set the direction of our cities with our planners and councils, and as we build out, we have a finite amount of land along with our finite ability to maintain and replace (ideally) the infrastructure we accept.  We use up land in our respective city limits/extraterritorial jurisdictions, and accept infrastructure dedicated from developers in order to create tax base from the value of private investments made.

Not all development is fiscally productive.  Urbanization, or more accurately, sub-urbanization, is not necessarily prosperity. The hard sobering fact is that, when permitting development in our cities, we’ve hired anybody, regardless of whether or not they can get on base, and we wonder why we don’t win.  We plan for and receive, thousands of acres of low and middle value residential developments with a ton of future infrastructure liabilities using our scarce lands.  We don’t do the math on whether or not a new development will make the city richer or poorer.  In a tax and fee adverse environment that is growing increasingly hostile, with the majority of our citizens struggling and frustrated with us (and everything), shouldn’t we know this?

Let’s start playing to win by daylighting the financials of what’s happening and encouraging more fiscally sustainable development.  What if we actually grew stronger with every development?  Here’s an idea I would love for you to try: Score development proposals based on fiscal productivity.  Add that to the mix.  Of course, be careful and always listen to your city attorney.  There are a number of consultants that can perform fiscal analysis studies to help out, but beware, don’t take a developer’s numbers at face value.  Don’t even use their consultants if they’ve offered to pay for the service.  The answer is already “it makes money, don’t worry about it.”

“It’s common that if big upfront one-time “gives” by the developer are factored in, along with the initial permitting and impact fee revenues, the development is a money-maker in its first few years, but look beyond the first lifecycle using a 40 year outlook.”

Run your own numbers on revenues and expenditures, or hire and pay for your own consultant to give you the real answers.  It’s common that if big upfront one-time “gives” by the developer are factored in, along with the initial permitting and impact fee revenues, the development is a money-maker in its first few years, but look beyond the first lifecycle using a 40 year outlook.  We use 40 years in Fate because that is the lifecycle of a concrete street, which is what we require in new developments.  Of course, for the first 30 years, the road only has minor issues (if it’s built well) but the last 10 years, years 30 through 40, are just horrible for maintenance and the driving/biking public’s traveling experience.

We are still working on our methodology to do our deep-dive analysis, but make sure you use Chuck Marohn’s overall fiscal sustainability benchmark of at least 20 to 1, private tax values to publicly dedicated infrastructure, with 40 to 1 being the ideal.

That’s the first step, and it’s easy.  Any citizen sitting in the audience of a Planning Commission’s meeting can see the tax value the developer is claiming at build-out, and then ask how much infrastructure will be required to make the development work, and what will be turned over to the city.  If your city staff or developers don’t know, that’s the first warning sign.  If they do (we require that on all our applications), you can easily run a quick ratio.  Most suburban layouts won’t make it, though they can pass the test if they minimize infrastructure and get values up high enough.  Currently, the City of Fate has an overall ratio of private to city/public of 19 to 1.  We know we have to be very intelligent about any new areas, and build fiscally super-productive cool places or we’re in trouble as our neighborhoods build out.

It’s no secret, though not widely understood, that cities don’t (for the most part) collect any depreciation expenses in our tax and utility rate structures.  We’re all cash, or modified-accrual in the enterprise funds as best.  Governmental accounting ….  Try running a business that has no depreciation expense in your price structure.  What happens?  When you need to reinvest in capital, what do you do?  You sell debt and move your prices up enough to cover your debt service.

The problem in local government is that after a while, the public gets tired of the continuous debt issuance and tax levy increases.  We can’t keep up with all the declining old infrastructure, so we let it go.  Public safety costs go up to patrol the declining area, the schools go bad, and it’s over.  The death spiral begins.  Actually, it was set in motion years ago when the development was approved.

We ran depreciation costs for several new proposed developments last year in Fate; one was almost $1,000,000 annually.  That one development would require an 8% increase in our operating budgets if depreciation was collected and put into a capital replacement fund. Just for that one neighborhood.

If capital replacement work or dedicated savings for future capital replacement don’t equal the depreciation expenses, your city or county is in decline.  As Lewis McLean, our municipal finance guru in Texas, has said, failure to maintain is the first “soft bankruptcy.” ‘If you can’t fix your roof, you won’t be in your house long.’”

So how do you figure annual depreciation expenses anyway?  Take the value of the dedicated infrastructure, then divide by the number of years it will last.  In our case, a concrete street and the drainage, water, and sewer lines within it, will last 40 years, and that’s an accounting standard we already use in our certified annual financial report (CAFR).  If you’re curious, you can also see the decline on what’s already built by looking up the depreciation expenses by function that are all required to be in the supplemental information in your city’s or county’s CAFR.  If capital replacement work or dedicated savings for future capital replacement don’t equal the depreciation expenses, your city or county is in decline.  As Lewis McLean, our municipal finance guru in Texas, has said, failure to maintain is the first “soft bankruptcy.”  If you can’t fix your roof, you won’t be in your house long.

It’s easy to criticize, I agree, but what does a fiscally productive development look like?  We approved a rezoning in 2016 for a small project for 32 townhomes surrounding a little dog park/recreational courtyard, that backed up to some two story vertical mixed use (four shops on the ground floor and four apartments), set on Fate Main Place, our Main Street.  The ratio of private to public investment of that little gem: … 36 to 1.  The developer pledged to widen a few streets to be able to do some on-street parking, which we allowed, and we’ll accept that little infrastructure addition to maintain and eventually replace.  No new water tower, no new special tax district, no traffic impact study, no new thoroughfare to punch through pristine rural hills of open space…

It’s time to start deploying tactical planning, growing slow and steady, building on our existing grids, getting denser while creating place, and showing the real costs of developments to our policy makers.  Let’s start going for walks and base hits.  Get on base, and our cities will start winning.

Michael Kovacs has served as City Manager of Fate, Texas (a Dallas suburb) for nearly 3 years, and has over 19 years of experience in city management. Reprinted with kind permission of Strong Towns.

A German automaker lies about its cars’ emissions, swindling billions. Too bad. An energy company cooks the books, stealing millions of people’s retirement savings. So sad. An oil company recklessly releases millions of barrels of oil into the ocean, destroying thousands of fishermen’s catches. Pound sand.

If Congress passes H.R. 985 — the Fairness in Class Action Litigation Act — these horrifying scenarios will be just the beginning. If the bill reads like a Chamber of Commerce wish list, that’s because it is.

The bill will kill all class actions and will extinguish the necessary and commendable work that plaintiffs class action attorneys have performed for decades. It will gut human rights cases, eviscerate employment-abuse lawsuits, and kill defective drug and product complaints. Its carnage is too expansive to list here. But the bill will leave an unpoliced wasteland, where unaccountable corporations will exploit the new world order, knowing that no one exists to stop them.

If this all sounds too horrible to be real, this time it’s very real. Despite all the socks to the gut that the class action bar has endured, this congressional blow not only will destroy victims’ access to justice, and tip the competitive business balance toward corporate cheaters at respectable and decent companies’ expense, but also it will decimate both plaintiffs and defense firms overnight. If you think I’m kidding, read the bill.

So how did we get here? It’s simple. Bad plaintiffs lawyers brought too many bad cases. The Chamber had enough, and H.R. 985 was born. But these sewer lawyers neither resemble nor represent most of the plaintiffs bar — lawyers who risk comfort, safety and security every day by committing to a contingent- fee model where the upside of bygone days no longer even exists.

Extortionist lawyers are a cancer — one that needs to be cut out. I’m no less committed to seeing that happen than the Chamber is. If anything, I’m more committed. Because for the Chamber, bad cases are a rallying cry. For me, bad cases are a target that spells doom for my plaintiffs’ practice.

Good plaintiffs lawyers do their work because they believe their work is important. They care. They want to make a difference. Sure, these motivations might seem silly or unimaginable to lawyers who have never done plaintiffs work, who have never risked their practice, who favor getting paid per hour to getting paid perhaps. That’s why plaintiffs work isn’t for everybody.

Most plaintiffs lawyers chose this road because they care differently. They care when they see corporations stealing from seniors, companies selling mobile deathtraps to young families, and power plants giving kids cancer. To most plaintiffs lawyers, their profession offers a risk worth taking and a cause worth claiming.

Or it least it did.

If Congress passes H.R.985, these motivations and stories will be a eulogy. Class action law firms — whether plaintiffs or defense — will disintegrate. Just like that. Make no mistake about it, if H.R. 985 passes, defense lawyers and their firms will be poured down the same hole as plaintiffs lawyers and ground into the same unrecognizable refuse.

I’ve long known what plaintiffs-side fear smells like. And because I now also defend class actions, I know how defense lawyers react to this fear. Defense lawyers’ responses tend to fall somewhere between “I’m just as concerned as plaintiffs lawyers” and “I haven’t read the bill.” The former position is sensible; the latter position, inexcusable.

Plaintiffs lawyers are empowered, mobilized and committed to saving their — and defense lawyers’ — professional lives by defeating H.R. 985. Countless consumer groups are similarly determined. For the reasons I explained in my March 20, 2017, Law360 column, responsible companies are on board too.

By tipping the competitive balance toward cheaters, the bill hurts honest companies badly. Victims will no longer be able to file class actions, meaning ethical companies will lose market share, revenue and profits to unpoliced liars who exploit the new anti-litigation landscape.

So who does all this activism leave out? Who’s the final piece of the puzzle? Who’s not weighed in?

The defense bar.

Defense lawyers aren’t acting to save themselves because either they don’t think they can or they don’t know how to, one defense-lawyer friend even claiming that to save his practice was a “professional conflict.” My friend is not alone.

Many defense lawyers believe they’re helpless to save themselves. This debilitating perspective is one that bright, assertive and resolute defense lawyers would never embrace in any other setting. Still, many believe that they’re relegated to sitting this one out, hoping that the plaintiffs bar, with its commitment, passion and vigor, will do something to help them, like the plaintiffs bar did for its defense colleagues after the Private Securities Litigation Reform Act and Class Action Fairness Act.

But defense lawyers needn’t react this way. Never mind which side we’re on, class action lawyers are a community. We respect each other. We work together to solve shared problems so that both sides — and, more important, both sides’ clients — can emerge in a decent and acceptable place. I have as many dear friends at defense firms as I do plaintiffs firms. I know this dynamic is true.

So if the defense bar doesn’t believe it can overtly lobby against H.R. 985 (since despite all the reasons for their clients to oppose it, some defense lawyers still feel institutionally constrained), what can the defense bar do?

The answer is simple. Indeed, it goes back to high school civics. The most crucial thing anyone can do — as I have done on behalf of my plaintiffs and defense clients — is to ask their senators to vote “No” on H.R. 985. Afterward, defense lawyers can ask their fair-minded clients — clients who want to protect themselves from the cheaters and crooks who will exploit the bill — to do the same thing.

Together as class action lawyers, we’re in a jam of alarming proportions. But H.R. 985 is so surreal, unjust and downright Kafkaesque that it needn’t pass. The problem is that merely supposing it won’t pass, wishing it won’t pass, will not make that so.

We’re in this spot not because of good, necessary and responsible cases that respect both sides, like Volkswagen diesel emissions, Enron and Exxon Valdez. We’re her because of rotten, worthless and profit-driven cases like Subway Footlong, Starbucks Iced Coffee and most slack-fill cases.

When considering the good work that good plaintiffs class action lawyers achieve — in collaboration with their thoughtful defense colleagues — even less reason exists to kill the body for the sake of “curing” the disease.

Now is the time for us, as a class action community, to come together and do something to save our professional lives so that we can continue to serve our clients. But not everyone involved in this process has weighed in. It’s time for the defense bar to do its part.

I hope this column inspires even one defense lawyer to write a Law360 op-ed challenging H.R. 985 as bad for business. Because if defense lawyers do nothing, when winter comes and class actions are dead, they can blame themselves for having to tell their children that they could have done something to save them but didn’t.

So everyone, do your part now. And help our profession thrive — not die.

Dan Karon is a class action attorney in Cleveland, Ohio. He chairs the American Bar Association’s National Institute on Class Actions. This essay is reprinted with kind permission of the author and Law360, where it first appeared as “Bundle Up, Defense Counsel: Winter’s Coming.”

by John Light

Donald Trump looks as if he is preparing to pull out of the Paris Agreement. After months of delayed and rescheduled meetings on the topic, the administration has suggested it will make its official decision this week about whether or not to stay in the global pact, which encourages almost 200 nations to cut their climate-change causing emissions. Reports indicate that things aren’t looking good for team “stay.”

Lead by Steve Bannon, White House counsel Don McGahn and EPA administrator Scott Pruitt, a faction of Trumpworld has successfully made the case to the president that the US should quit the deal, according to reports. If the US stays in the pact but pursues Trump’s agenda of fossil-fuel industry boosterism, the US could be in hot water legally, they argue.

President Barack Obama promised to cut US emissions by 26 to 28 percent from 2005 levels. Because Trump is unwinding many of Obama’s climate change-related programs, emissions are likely to fall under Trump by only 14 percent, according to an analysis by the Rhodium Group. McGahn and other anti-Paris advisers argue that under the agreement, the US could somehow face legal action if it does not meet Obama’s promises.

But nearly all diplomats and legal scholars who worked on the deal believe that’s not correct. The Paris Agreement is not legally binding. Over the last week, lawyers and the architects of the deal have parsed its language once more and concluded that the US can revise its emissions-cutting promise at any time, upward or downward, and nothing will happen.

The debate is centered around one line in article 4.11 of the agreement. It states that “a party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.”

The consensus is, resoundingly, that these words do not require emissions targets to increase. “It came up,” Todd Stern, Obama’s chief climate diplomat, told Vox’s David Roberts. “It was discussed and debated. There were countries that were saying they wanted a legal prohibition of any downward revision of an NDC. We thought that was a bad idea. It would cause any number of countries to lowball their target out of fear of getting stuck.”

The authors of the deal intentionally left out punishments for a nation that decided to be less ambitious. Indeed, this was one of scientists and activists’ chief criticisms of the agreement, which they denounced as toothless.

Other climate law scholars agree with Stern. “Withdrawal of the Clean Power Plan, adoption of an alternative domestic strategy or failure to achieve the US emissions reduction target would not violate the agreement,” wrote Susan Biniaz, a former State Department adviser, and Daniel Bodansky, a law professor at Arizona State University, in a recent analysis of legal issues related to the Paris Agreement. In other words, Columbia University Law Professor Michael Burger summarizes, “remaining in the Paris Agreement does not increase litigation risk for the Trump administration as it pursues its deregulatory agenda.” Trump and his deputies can do whatever they want with regard to the US’ climate change-causing emissions without facing legal ramifications.

Last Thursday, Laurence Tubiana, a French diplomat who worked on the agreement, provided what sounded like a dissenting voice to E&E News, arguing that under the deal a country is not allowed to decrease its commitment. “The sense of the direction is really progress; it’s not going backwards,” she said. But she later argued that her comments had been misinterpreted. “To be super clear: US gov CAN legally downsize NDC but politically they should not,” she tweeted. An “NDC” is a nationally determined contribution, that’s the Paris Agreement’s term for a nation’s promise under the agreement.

Foreign leaders, corporations, investors and activists have been pushing hard to keep the Trump administration in the pact by arguing that the US has nothing to lose by staying.

It’s unclear, however, if the administration is willing to listen.

The president’s advisers will meet tomorrow afternoon to come to a final decision about the Paris Agreement. Someone close to Ivanka Trump leaked that the president’s daughter, a proponent of staying in the deal, would meet one-on-one with Scott Pruitt before the larger meeting. The implication in Axios reporter Jonathan Swan’s piece about the leak is that Ivanka hopes to change the EPA administrator’s mind. Her desire to keep the US in the agreement is shared by a number of Trump advisers, including Secretary of State Rex Tillerson, Gary Cohn and military leaders including national security adviser H.R. MacMaster.

We may not have to wait long to see who wins out. The administration has suggested that a decision may come by the end of Tuesday — after the strategy session — or later this week.

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Trump’s Bogus Reason for Bailing on the Paris Agreement is republished from  Common Dreams under Creative Commons attribution-share alike license CC BY-SA 4.0.  John Light is a reporter and digital producer for the Bill Moyers team. His work has appeared at The Atlantic, Grist, Mother Jones, Salon, Slate, Vox and Al Jazeera, and has been broadcast on Public Radio International. He’s a graduate of Columbia Graduate School of Journalism. You can follow him on Twitter at @LightTweeting.

Glacier-Less National Park? Climate Change Melting Iconic Formations

by Deirdre Fulton, Common Dreams staff writer

Climate change is melting the glaciers in iconic Glacier National Park, according to scientists, who warn that the majestic natural formations could disappear entirely within our lifetime.

The park, which celebrated its 107th anniversary on Thursday, boasted 150 glaciers in the late 19th century; today, only 26 meet the 25-acre threshold to be considered glaciers.

That’s according to U.S. Geological Survey (USGS) data released Wednesday, which finds that as global temperatures have increased, the park’s major “named” glaciers have shrunk by an average of 39 percent—and some by as much as 85 percent—since 1966. While the loss in Montana “is more severe than some other places in the U.S., it is in line with trends that have been happening on a global scale,” said Portland State University geologist Andrew G. Fountain, who partnered with the USGS on the multi-year study.

In addition to decimating Glacier’s namesake attractions, “[t]he park-wide loss of ice can have ecological effects on aquatic species by changing stream water volume, water temperature, and run-off timing in the higher elevations of the park,” said lead USGS scientist Dr. Daniel Fagre.

What’s more, the Guardian reported, “[t]he disappearance of glaciers in Montana is part of a broader loss that will see all glaciers […] largely vanish from the lower 48 states of America by the mid point of the century,” according to Farge.

“It’s inevitable that we will lose them all over the next few decades,” Farge told the Guardian. “The Colorado glaciers started melting before Montana’s and while there are larger glaciers in the Pacific northwest that will hold on longer, the number vanishing will steadily grow until none are left.”

Glacier-Less National Park originally appeared at Common Dreams and is licensed under Creative Commons attribution-share alike license CC BY-SA 3.0 U.S.