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Monthly Archives: October 2012

Not My Welfare State, or the Taxpayer’s Lament

Molly C. Michelmore, Tax and Spend: The Welfare State, Tax Politics, and the Limits of American Liberalism (Philadelphia: University of Pennsylvania Press, 2012).

Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”

Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families.1 Many more will accept Social Security benefits, tax credits, and other government subsidies.2 Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3)

“Unravel[ing] this apparent contradiction” is Michelmore’s goal, and she is largely successful. (p. 3) Tracing the federal government’s tax and spending policy from the New Deal through the “Reagan Revolution,” she shows that liberal policymakers created an enduring “social compact” with the American people, consisting of “both economic security and low individual tax rates.” (p. 14) They kept their promise by steadily expanding social welfare programs, but devising “ever more complicated and obscure” financing mechanisms. (p. 20) In doing so, they “effectively divorced” the public benefits of the non-poor majority “from the taxes that paid for them, the government that provided them, and the more direct forms of public assistance they resembled.” (p. 20) Phrased differently, liberal policymakers “widened the gap between the obligations of citizenship and its benefits,” while “help[ing] to instill in the rising white middle class a sense of uncomplicated and individual entitlement to the fruits of postwar prosperity.” (p. 45)

Michelmore’s story truly begins after the war, when Americans had come to expect decent housing, a secure income, and free education, as well as protection against disease, disaster, and foreign aggression. They saw taxation not as payment for these services, but as a civic duty, and they believed that rates should remain modest. When disappointed, they blamed the nation’s most visible social programs – for what else could be devouring tax dollars so fast? It is no coincidence, Michelmore shows, that postwar complaints about excessive taxation accompanied demands for investigation of “relief chiselers.” (p. 24)

In the 1950s and early 1960s, economic growth allowed liberal policymakers to avoid the contradiction at the heart of the social compact, while Cold War politics deterred them from celebrating the state’s vast role in supporting the middle class. By the end of the Kennedy-Johnson years, however, liberals were in an untenable position. They had again promised tax cuts, this time paired with prominent (though financially modest) commitments to racial minorities and the poor. The benefits to non-poor Americans remained hidden, fostering in some an ironic sense of injustice and neglect. As the economy turned sour and perceived “tax eaters” (rioters, welfare mothers, black schoolchildren) became bolder, this “Silent Majority” found its voice.

The conservative ascendancy did not bring with it a new social compact, however. The Republican right “articulated a coherent and politically viable alternative to postwar liberalism,” centered on tax reduction and cuts to means-tested welfare programs. (p. 125) But even Reagan left untouched large, expensive pieces of the liberal state, such as Social Security and Medicare. Americans demanded of Reagan what they had been promised by Roosevelt, Michelmore explains: low tax burdens and economic security – just this time without so much government.

Aspects of this story have been told before. Michelmore is not the first to identify the welfare state hidden within the U.S. tax code, or to note conservatives’ inability to roll back middle-class entitlements. The right, once caricatured, is now the subject of serious scholarly investigations, several focusing on anti-tax sentiment. But Tax and Spend has much to offer. Michelmore unearths real historical gems, such as the 1980 debut of a monopoly-styled board game titled “Public Assistance: Why Work For a Living When You Can Play This Great Welfare Game.” (p. 123)  More important, she encourages scholars to do the unglamorous work of connecting social programs to their financing mechanisms and revenue sources, real and perceived. For example, we cannot understand the long-term significance of the Social Security Act of 1935, she shows, without considering the Revenue Act of 1942.

Tax and Spend is also relevant to our current political situation. Most Americans see themselves as taxpayers rather than “tax eaters.” That is why the Supreme Court’s healthcare decision, with its reliance on the tax power, may be a political liability for President Obama, even as it shields a significant legislative accomplishment. It confirms some Americans’ suspicions that their paychecks are financing other people’s healthcare. But the decision also offers Americans an opportunity – and a reason – to question the social compact that Michelmore has identified. Since the mid-twentieth century, politicians from both parties have promised low taxes and security, but the absence of health security is undeniable, and now viscerally felt.  With universal healthcare in sight, as well as a fuller understanding of its costs, will Americans finally be prepared to reject the liberal social compact and strike a different bargain? Maybe. But if Michelmore is right, it is a rare politician indeed who will offer them one.

  1. Suzanne Mettler, The Submerged State: How Invisible Government Policies Undermine American Democracy (2011). []
  2. Mark R. Rank & Thomas A. Hirschl, Welfare Use as a Life Course Event: Toward a New Understanding of the U.S. Safety Net, 47 Soc. Work 237, 241-43 (2002). []
Cite as: Karen Tani, Not My Welfare State, or the Taxpayer’s Lament, JOTWELL (October 31, 2012) (reviewing Molly C. Michelmore, Tax and Spend: The Welfare State, Tax Politics, and the Limits of American Liberalism (Philadelphia: University of Pennsylvania Press, 2012)),

Judicial Independence, But From What?

Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard University Press, 2012).

I think history is most fun to read when it upsets the conventional understanding of something in the present day. That’s a hard trick to pull off. Most conventional understandings are pretty close to the truth – otherwise they would have been abandoned already. And if you want to buck the conventional wisdom about something in the present, you’re more likely to succeed simply by explaining why it’s wrong in the present rather than by detailing its past. It takes an unusual combination of insight and luck to find a topic you can make readers see completely differently by writing its history.

Before I read Jed Shugerman’s The People’s Courts, I would never have guessed that judicial elections were that kind of topic. Like most lawyers, I suppose, I thought judicial elections were a little silly at best, and sometimes downright pernicious. How are voters supposed to know who the good judges are? And worse, how can elected judges prevent politics from leaking into their decisions? The last thing we want is for a judge to be keeping an eye on his reelection when he’s deciding, say, whether a notorious murderer’s rights have been violated, or whether a popular new law is unconstitutional. If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.

No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.

In The People’s Courts, Shugerman shows that this isn’t true at all. It’s more nearly the opposite. Most states moved to judicial elections in the mid-19th century to get politics out of judging, not in. The problem that elections were intended to solve was the danger of political pressure from the governors and legislatures who appointed judges. Americans wanted their judges to be independent – independent from the other two branches of government. Judicial elections are not the only way that politics can influence the judiciary. When judges are appointed by politicians, political pressures can be just as strong. “With direct popular elections, we watch the sausage-making,” Shugerman explains in his introduction. “With appointments, the sausage-making is out of sight, out of mind.” (P. 5) One of the great virtues of the book is how Shugerman demonstrates that in the mid-19th century it was the other sort of sausage-making that people were mostly worried about.

Shugerman then goes on to show that these new judicial elections worked just as they were intended. Judges actually did become more independent when they were elected, as measured by the frequency with which they struck down legislation as unconstitutional. That’s a result completely different from the one we would expect if the Jacksonian democracy story were true, but it’s a result that makes perfect sense if the purpose of electing judges was to insulate them from behind-the-scenes political pressure.

Once you understand the history of judicial elections this way, it’s hard not to see them differently in the present, and Shugerman turns to this issue at the end of the book. No matter how judges are selected, he points out, politics will creep in one way or the other. Anything we do to shift judges away from one kind of politics will only bring them closer to another kind. We can’t talk intelligently about how to pick our judges without acknowledging these inevitable tradeoffs.

There’s a lot more to The People’s Courts than this. The book is a complete history of judicial selection methods in the United States, from the 18th century through the big-money judicial campaigns of our own time. That’s a really valuable contribution in its own right; indeed, it’s surprising that no one has written a book like this before. But the best part is the chapters on the origin of judicial elections.

Cite as: Stuart Banner, Judicial Independence, But From What?, JOTWELL (October 3, 2012) (reviewing Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard University Press, 2012)),