Taking a whack at the tax reform pinata -- Jan. 29, 2015 column

By MARSHA MERCER

Tax reform is like the old song about heaven. Everybody wants to go there, but nobody wants to die.

Nearly everybody -- President Barack Obama, politicians, most taxpayers -- says we need a simpler, fairer tax code, but nobody wants to give up anything to get there.

   

The uproar over Obama’s proposal to tax 529 plans is a case in point. You can imagine how the big brains in the White House figured that 529s were ripe for picking. Less than 3 percent of families use 529 and similar tax-free savings plans for college, and the plans disproportionately benefit the well off.

Households at all income levels may make after-tax contributions, earnings are tax-deferred and funds may be used tax free for qualified education expenses. About 70 percent of account balances are held by households with incomes over $200,000.

As part of his “middle class economics” plan, Obama suggested taxing 529s and using the revenues to expand an education tax credit for couples making up to $180,000 a year.

Cue the outrage. House Speaker John Boehner charged Obama’s proposal would hurt the very people the president claimed he wanted to help: the middle class. Congressional Democrats also took a whack at Obama’s 529 pinata.

The Obama family’s own hefty 529 accounts would have been unscathed as the proposal only would have taxed future contributions to plans. Back in 2007, the then-senator and Michelle Obama socked away $240,000 in 529 plans for their daughters’ education.

About half the households with 529 and similar college savings plans had incomes above $150,000, according to a Government Accountability Office study in 2012. But that means about half had income below that amount.

The GAO began its report with a disturbing fact: “While median family income decreased between 2005 and 2011, college tuition and fees increased at an average annual rate of 6 percent, more than double the rate of inflation.”

However promising taxing 529s looked on paper, it should not have come as a surprise to anyone in the White House that families that could afford to save used the plans and would hate to lose them.

In federal budget terms, taxing the capital gains of future contributions wasn’t a big ticket item. It would have resulted in revenues of $1 billion over 10 years -- but the proposal hit millions of families. There are about 12 million accounts nationwide.

Thus, Obama managed to accomplish something rare in Washington: His proposal united Democrats and Republicans – against him. The White House said the proposal had become “a distraction” and dropped it within a week.

A peevish editorial in The Wall Street Journal lamented that Obama had moved so quickly. “This is a cut-their-losses move, but we wish the idea had rotted in the sun for a few more months. It would have been instructive to the same middle-class taxpayers Mr. Obama claims to serve,” the paper opined. Pass the sour grapes – or raisins.  

Income inequality, long a Democratic issue, has become a new political cause for Republicans. As they weigh 2016 presidential bids, former governors Mitt Romney and Jeb Bush as well as Sen. Rand Paul of Kentucky and Wisconsin Gov. Scott Walker talk of ending poverty.   

Another problem is the shrinking middle class. About as many Americans identified themselves as lower or lower-middle class as middle class in a Pew Research Center/USA Today survey last year.  The share of Americans who said they were middle class dropped from 53 percent in 2008 to 44 percent last year.

The median household income was about $52,000 in 2013, the latest year for which the Census has figures. That’s 4.6 percent lower than it was in 2008 and 8.7 percent below 1999’s median household income of $56,895.

For the time being, savings in state-run 529 accounts appear safe from tax reform efforts.

Families will continue to use the plans tax-free for tuition, books, fees and other qualified expenses at any college or university in the country. 

One necessity that doesn’t qualify is computers. A bipartisan bill in the House would allow computer purchases with 529 funds, and Boehner has urged Obama to support it.

But that helps illustrate the problem with tax reform. It’s always easier to give -- or expand -- a tax break than to take one away.

©2015 Marsha Mercer. All rights reserved.

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The politics of high school civics -- Jan. 22, 2015 column

By MARSHA MERCER

Everybody loves seeing how dumb other people are, so this Tweet naturally rocketed around the Twitterverse:  

“The NFL been around longer than our government. We’ve had 48 Super Bowls and only 44 presidents. I didn’t know that.”

It would be funny except that, as somebody commented on Facebook, “Her vote counts the same as yours.”  

Too often our fellow Americans display breathtaking ignorance about U.S. history or government. In a nationwide survey last year, only 36 percent of adults could name all three branches of government, the Annenberg Public Policy Center of the University of Pennsylvania reported. Worse, 35 percent could not name even one branch.

Most adults also didn’t know which party controlled the U.S. House or Senate, the survey found.

The National Assessment of Educational Progress has been reporting for years that only a few students know civics. Among 4^th graders, only 27 percent tested at or above the proficient level in civics, according to the 2010 assessment, the most recent. Only 22 percent of 8^th graders and 24 percent of 12^th graders tested as proficient.

The poor performance shouldn’t come as a surprise. Many schools have dropped civics as a separate class, combining it with American history. The good news is we’re seeing a proliferation of efforts to reinvigorate civic education. Former Supreme Court Justice Sandra Day O’Connor has devoted her retirement to the cause, and many nonprofits have sprung up to tackle the problem.

Last September, 26 nonpartisan groups – including the Annenberg center, Library of Congress, National Archives and Mount Vernon -- launched the Civics Renewal Network. The online resource offers high-quality, no-cost instructional materials for various grades.

Some states, though, are pinning their hopes on a dubious method to foster greater civic knowledge: the U.S. citizenship test.

Arizona just became the first state to require that students pass the citizenship test before graduating from high school. The naturalization test is an oral exam in which a candidate for citizenship is asked up to 10 questions from a list of 100 and must answer six correctly in the interview. 

Members of the Class of 2017 in Arizona will need to get 60 of 100 questions correct. Similar measures are moving through the legislatures in North Dakota, Utah and Missouri.

A few other states require some type of history or civics test for high school graduation. The U.S. citizenship test is the focus of the Civics Education Initiative, a project of the Joe Foss Institute, a nonprofit based in Scottsdale, Ariz., whose motto is “Patriotism Matters.”

The institute’s goal is to have every state pass a law requiring the citizenship exam for high school graduation by Sept. 17, 2017, the 230^th anniversary of signing of the Constitution. It says about 15 other states are currently considering the idea.

For legislators, adopting the citizenship test is a bipartisan way to appear to be educating students while sidestepping the political controversies that often surround civics education.   

“Every classroom discussion, textbook adoption, or comment by a teacher has become a potential flashpoint,” Peter Levine and Scott Wagner wrote in a Jan. 15 op-ed in The Hill newspaper. “Even the word `democracy’ is politically divisive in a way that was not true in the 1980s,” they wrote.

Levine is director of the Center for Information and Research on Civic Learning and Engagement at Tufts University, which formed the Commission on Youth Voting and Civic Knowledge.

The commission concluded in a major study in 2013, “We find that testing civics has no positive impact, but that could be because the tests are not well designed, teachers are not well prepared and supported to teach the material, or the curriculum is misaligned with the tests.”

The commission recommended that new tests be designed that are aligned with curriculum, so that students gain the knowledge and skills necessary for active citizenship. 

Before jumping on the citizenship test bandwagon, states should consider a broader approach to civics, one that stresses understanding over rote learning.

Otherwise, we may simply churn out more graduates who have passed a test but remain dumb. Remember, their votes count the same as yours.   

©2015 Marsha Mercer. All rights reserved.

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Backstory on SOTU: TJ wouldn't approve -- Jan. 15, 2015 column

By MARSHA MERCER

On Tuesday night, President Barack Obama will ride in his limo to the Capitol where, bathed in TV light, he will deliver his State of the Union Address to a joint session of Congress. 

Ho hum, you may say with 21^st century ennui. Big deal. We don’t think twice about presidents appearing before Congress.

But nobody was blasé in April 1913 when President Woodrow Wilson addressed Congress in person. It was shocking.

Presidents in those days didn’t deliver speeches to Congress. They followed the model of Thomas Jefferson and sent carefully written reports.  

The Constitution requires that a president “shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.” It’s silent on how the information should be delivered.

Presidents George Washington and John Adams gave annual messages to Congress in person, but Jefferson ceased the practice. He found the pomp and ceremony too reminiscent of the English monarch’s “speech from the throne” to Parliament. The first two presidents had appeared with quite the entourage -- their entire Cabinets and all their secretaries.

Jefferson apparently wasn’t a polished public speaker and the Capitol wasn’t yet finished, so he was happy to give the speech a pass. So were his successors.   

Wilson, the Virginia-born former president of Princeton University and former governor of New Jersey, was a gifted orator at ease before crowds. He said when he broke with the tradition: 

“I think that (a personal appearance) is the only dignified way for the president to address Congress at the opening of a session, instead of sending the address to be read perfunctorily in the clerk’s familiar tone of voice. It is a precedent which, it is true, has been discontinued a long time, but which is a very respectable precedent.”

Wilson gave a brief speech and made the trip simply, driving to the Capitol with one Secret Service man. His male secretary followed in his own car, The New York Times reported. Democrat Wilson was fortunate to have Democrats in control of both houses of Congress.

After appearing in person before Congress a few weeks after his inauguration, Wilson went back to Congress in June and August of 1913. He started weekly press conferences. That December, he gave his first annual message to Congress – what we now call the State of the Union Address.  

Subsequent presidents went back and forth between written and oral State of the Union messages and some delivered both. Since Reagan, presidents have delivered speeches. The first official televised response by members of the opposing party came in 1966. In 2010, Virginia Gov. Bob McDonnell gave the official Republican response.

   

This will be Obama’s sixth State of the Union Address, and he’s a lame duck. His legislative wish list will be dismissed as mostly fantasy – if people watch at all.

Viewership of Obama’s State of the Union speech last year dropped to its lowest level since his first address. In 2009, about 52.4 million people tuned in to see Obama. Last year, just 33.3 million watched. That was also the lowest viewership for the State of the Union since Nielsen began keeping track in 1993. That year, Bill Clinton’s first, 66.9 million people watched.

Presidents often hit the road to sell their proposals after the State of the Union address. Obama has tried to build interest in his speech by previewing his proposals. He quipped that with only two years left in his term, he couldn’t wait for the speech to roll out his ideas.

Traveling around the country, he announced an array of proposals aimed at improving the lives of middle-class Americans. These include making community colleges free, stepping up cybersecurity measures, expanding broadband service, protecting the environment and allowing workers paid family and sick leave.

The catch is that many of Obama’s proposals require the approval of Congress. That will be no mean feat -- even after the president stands before a joint session and makes his pitch in person.  

© 2015 Marsha Mercer. All rights reserved.

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On Stateline: States step in to protect pregnant workers' rights

http://bit.ly/1xKbKst

States Go Beyond Federal Law to Protect Pregnant Workers

• January 07, 2015 
• By Marsha Mercer

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AP

Many states are approving new protections for pregnant workers, requiring employers to give them more or longer bathroom breaks, rest periods, light duty, job transfers, leave time or other accommodations. (AP)

Decades after a federal law banned discrimination against pregnant women in the workplace, some states are providing additional protections to pregnant workers who want to stay on the job.

After Congress passed the Pregnancy Discrimination Act in 1978, many state legislators thought the problem had been solved. But as the number of women in the workforce has increased—and more of them have stayed on the job through their pregnancies—they have encountered obstacles not covered by the federal law.

Recent federal court rulings that have sided with employers who support a narrow interpretation of the law have added fuel to efforts in state capitals.

"Women should not have to choose between being a mother and having a job," outgoing Democratic Gov. Pat Quinn of Illinois said in August when he signed that state’s Pregnant Workers Fairness Act.

As of Jan. 1, employers in Illinois must provide pregnant workers who request them more or longer bathroom breaks, rest periods, light duty, job transfers, leave time or other accommodations, unless doing so creates an undue hardship for the employer.

"These are women who are healthy and want to continue working," said Democratic state Sen. Toi Hutchinson, a sponsor of the Illinois bill. "They’re not looking to get out of work. What they want is a temporary accommodation."

Eleven other states also have passed laws requiring employers to provide reasonable accommodations to pregnant workers. In 2014, laws took effect in Delaware, Minnesota, West Virginia and the District of Columbia. Since 2011, Alaska, Connecticut, Maryland and New Jersey also have approved laws.

California has had a pregnancy accommodation law since 1999, Louisiana since 1997 and Hawaii since 1990. Texas does not have a statewide law covering private employers, but since 2001 it has required county and municipal governments to make reasonable efforts to accommodate their pregnant employees. In addition, at least four cities have approved protections for pregnant workers in the public and private sectors: New York, Philadelphia, and Central Falls and Providence in Rhode Island.

Georgia, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island and Wisconsin are expected to debate statewide pregnancy protection bills this year.

"States have been a real model in embracing laws that require reasonable accommodation to pregnant workers," said Emily J. Martin, vice president of the National Women’s Law Center, a research and advocacy group.

Vital to Blue-Collar Workers

It’s illegal under the federal Pregnancy Discrimination Act to fire a worker, cut her pay or deny her health benefits because she is pregnant. But the law applies only to employers with 15 or more workers and is unclear on the extent to which employers must accommodate pregnant employees so they can continue to work. Pregnancy alone is not a disability under the federal Americans with Disabilities Act, although it does protect women with pregnancy-related impairments, such as difficulty bending or lifting heavy objects.

Courts have tended to rule narrowly on what employers must do to accommodate pregnant workers, and women’s rights advocates contend that many pregnant women are pushed out of their jobs.

Proponents say pregnancy accommodation laws are especially important to blue-collar and low-wage workers, who may need something simple—a stool at the cash register, additional bathroom breaks or light duty—to keep working.

When Lauri Huffman Wolfe of Saginaw, Michigan, became pregnant in November 2012, she asked for job modifications at the Speedway convenience store and gas station where she was a shift manager. Her doctor had advised her not to climb the 9-foot ladder to change the store sign, reach into the bottle bin or perform certain other tasks. Her employer attempted to put her on unpaid Family and Medical Leave, and she refused.

"I said, ‘I still have 22 weeks left in my pregnancy, and I need to work,’" she said. Speedway fired her for job abandonment. Michigan law does not expand pregnancy protections beyond federal law. She sued in federal court and has appealed a district court’s dismissal of her claim.

More than 250,000 women a year are denied their requests for pregnancy accommodation, according to a 2013 survey by Childbirth Connection, a project of the National Partnership for Women & Families. More than half the women surveyed said they did not request an accommodation because they feared retaliation.

Charges of pregnancy discrimination have risen substantially at the Equal Employment Opportunity Commission, which filed 5,342 charges in fiscal 2013, up from 3,900 in 1997. Under President Barack Obama, the EEOC has stepped up investigations and enforcement actions. In July, the commission issued guidance on pregnancy discrimination, but the guidance is not legally binding.

"Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices," EEOC Chairwoman Jacqueline Berrien said in statement last summer.

Bipartisan Support

In many states, new protections for pregnant workers have made allies of conservatives and liberals.

"As a conservative, pro-life Republican, I don’t want anyone choosing between a job and a child," said Delaware Del. Colin Bonini, who sponsored the bill that passed both houses of the legislature unanimously.

"From a fiscal-conservative standpoint, we don’t want people to lose their jobs and get on public assistance," he said. "We want women to work and to have successful pregnancies and successful families. This just made so much sense."

Bonini, who is running for governor in 2016, said he talked to some of the larger businesses in his state. "Nobody had any problem at all with this bill. Nothing from the Chamber (of Commerce). The only negative was a few far-fringe right, kooky emails."

In Illinois, however, some business groups remain concerned.

"We still think the law is going to create problems for employers," said Jay Shattuck, executive director of the Illinois Chamber of Commerce’s Employment Law Council. The council and several other business groups first opposed the Illinois measure, but later switched to a neutral stance because, according to Shattuck, opposing the state law was "like being against motherhood."

The Illinois law covers job applicants as well as employees, affects employers with one or more employees, and is vague on which conditions are covered, Shattuck said. He added that it may open the door to unpaid leave for those who don’t qualify under the federal Family and Medical Leave Act.

Additional protections for pregnant workers are less popular on Capitol Hill, where a new federal measure proposed by Democrats, the Pregnant Workers Fairness Act, has failed to garner any Republican support. GOP opponents contend the law would place an unfair burden on businesses.

Crucial Court Case

Meanwhile, the U.S. Supreme Court is currently considering Young v. United Parcel Service, Inc., a case that asks whether companies must provide pregnant workers lighter duty or other alternate assignments if they offer job modifications to other workers who are temporarily unable to do their regular jobs.

Peggy Young, an early morning UPS driver in Maryland, asked for a job modification when she became pregnant and her doctor advised her not to lift more than 20 pounds. UPS policy at the time did not provide light duty to pregnant workers, although it did allow employees who were injured on the job and drivers who lost their licenses to receive alternate assignments. UPS has since changed its policies to accommodate pregnant workers.

The court isn’t expected to issue its ruling until the summer, but the case has already spurred two states, Maryland and West Virginia, to pass their own measures. Legislators in both states said they were surprised at the limited scope of the federal law.

"The case showed there’s a hole" in coverage for pregnant workers, said West Virginia Del. Stephen Skinner, a Democrat. "So rather than wait around, we closed it in West Virginia."

The vote in the West Virginia House was unanimous; one Democratic state senator voted against it.

Misguided Efforts

State laws vary. Some are modeled on the proposed Pregnant Workers Fairness Act in Congress. In Illinois, the state American Civil Liberties Union’s Reproductive Rights Projectdrafted and lobbied for the legislation.

"The law says the employer can’t impose an accommodation a woman doesn’t want," said Lorie Chaiten, director of the Reproductive Rights Project. "They can’t say, `You need to go home.’"

The goal is to educate employers, she said, not take them to court. On that, employers agree.

"The last place you want to be as an employer is defending against pregnancy discrimination," said John Hyland, an employment law attorney in San Francisco. "You don’t want to be in court in California as an employer in a discrimination suit. You’re already presumed guilty."

Hyland said employers often face discrimination complaints as a result of misguided efforts to help or protect pregnant workers.

"I don’t think I’ve ever seen a pregnancy discrimination case rooted in an animus or dislike toward the pregnant woman," he said.

Let the sun shine in Supreme Court -- Jan. 8, 2015 column

By MARSHA MERCER

The Supreme Court is poised this year to make momentous rulings – on the future of the Affordable Care Act, pregnant workers’ rights on the job and, probably, same-sex marriage.  

If you want to see the court in action, though, you’ll have to be present – just as when everybody wrote with a quill pen. Speaking of which, white quills are still set out on counsel tables every day the Supreme Court is in session – a nice touch for the lawyers arguing cases.

But citizens of the 21^st century shouldn’t have to journey to Washington to see justice.

After all, millions of Americans watch the Super Bowl without having to travel, Rep. Steve King, R-Iowa, said last month at a hearing of the House Judiciary subcommittee on courts. Most people watch the game on TV -- a technology that was cutting edge 60 years ago.

The hearing was on the proposed Sunshine in the Courtroom Act, a perennial, bipartisan effort to open the Supreme Court and lower federal courts to television cameras.

Republicans and Democrats in the House and Senate as well as C-SPAN and media and legal organizations have tried unsuccessfully for decades to persuade the Supreme Court to televise its proceedings.

C-SPAN, which began covering the House of Representatives in 1979 and the Senate in 1986, first made a request to cover oral arguments to Chief Justice William Rehnquist in 1988.

Chief Justice John G. Roberts Jr. dashed hopes that the court might relent in 2015 in his year-end report on the federal judiciary, released on New Year’s Eve. He didn’t mention cameras, but he did stress that the court shouldn’t embrace technology too quickly.

“The courts will often choose to be late to the harvest of American ingenuity,” he wrote. His goal is to make legal briefs and other filings available online “as soon as 2016.”

Roberts’ report prompted criticism from the incoming chairman of the Senate Judiciary Committee.

“The courts have yet to embrace the one technology that the founders likely would have advocated for – cameras in the courtroom,” Sen. Chuck Grassley, R-Iowa, a longtime proponent of televising court proceedings, said in a statement.

“The founders intended for trials to be held in front of all people who wished to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley said.

Every state allows TV coverage of courts, and some federal courts do too. The Supreme Court releases written transcripts and audio recordings of oral arguments, sometimes the same day.  

Independent organizations, including SCOTUSblog, blog arguments and opinions live as they happen. The court allows sketch artists. But cameras? No way.   

Justice David Souter quipped in 1996 that cameras would roll into the courtroom over his dead body.  Souter has since retired. Justice Anthony Kennedy has said the court should not become part of the “national entertainment network.” Justice Clarence Thomas has said his colleagues on the court would lose their privacy.

Justices fear that the public wouldn’t understand the court’s arcane proceedings, that lawyers might grandstand and that soundbites would wind up out of context on the news and late-night TV. 

A lot of that already happens. Ordinary citizens, kept at arms’ length, have to rely on pundits who offer flamboyant interpretations. If people could see the action for themselves, they would get a more measured view.

Interestingly, nominees to the court often approve of cameras but as justices favor keeping the door shut. For example, Elena Kagan said in her confirmation hearing in 2010 that she thought cameras in the courtroom would be “terrific.”

“I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” she said.  A couple of years later, though, Justice Kagan had cooled to the idea, saying she had “a few worries” about cameras.

Even if Congress were to pass the Sunshine in the Courtroom Act, you still might not be able to watch the Supreme Court from your den.  The act authorizes the chief justice and judges in lower courts to allow cameras but it doesn’t require them to do so. The court could still say no.

For the foreseeable future, if you want to see the court, you’ll need to saddle up for the trip to Washington – and that’s unjust.    

© 2015 Marsha Mercer. All rights reserved.

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