Commentary Law and Policy

Why Wall Street’s Angst Over Elizabeth Warren is Unfounded

Sheila Bapat

While Elizabeth Warren is viewed as a threat to the banks, she is just one Senator. Congress is still rife with members, both Republican and Democrat, who rely heavily on the banks for their campaigns.

President Obama’s victory is rooted in his narrative on the economy and the middle class — and so are the victories of other Democratic winners, including Massachusetts Senator-elect Elizabeth Warren. Warren has long been an advocate for working families, but she is best known for promoting greater regulation of the banks and for helping create the Consumer Finance Protection Bureau (CFPB). Her race, and the grassroots support she garnered, has the same subterranean quality of Obama’s 2008 victory: though she outraised all Senate candidates, raking in a monstrous $39 million, the Federal Election Commission’s disclosure page tells us that a mere 1.5 percent (about $607,000) of Warren’s war chest came from political action committees, most of which are labor or women’s rights groups. The vast majority of her support came from tens of thousands of individuals, who all want Warren to give the banks hell.

Warren’s victory helps heal America’s hangover from 2008-2009, when Lehman Brothers shut its doors and the mortgage crisis reared its head. Even after the financial crisis was under control, Americans saw banks using Troubled Asset Relief Program (TARP) money to pay executive bonuses while the struggles of the middle class and poor grew. To voters Warren represented the antidote: it was high time to elect someone who will hold the banks to task.

So naturally Warren’s victory makes Wall Street nervous. Goldman Sachs, Bank of America and several others banks threw their support behind Warren’s opponent Scott Brown, but to no avail. According to Forbes, Dennis M. Kelleher of Better Markets, a non-profit focused on financial markets, says the financial industry has been dealt a crushing defeat after spending hundreds of millions to defeat Warren and Obama. And as CNBC’s Fast Money commentators pointed out the day after the election, banks are concerned about Warren’s victory and even more concerned about the prospect of her serving on the Senate Banking Committee, where she could wield more power in pursuing greater bank regulation.

But is Wall Street’s angst justified? True, Warren was elected by pure will of the people and without relying on any banks — but she is just one Senator. Congress is still rife with members, both Republican and Democrat, who rely heavily on the banks for their reelections. The Hill pointed out last week that incoming Democrats Chris Murphy of Connecticut and Joe Donnelly of Indiana are viewed by some as pro-business; and incumbent Democrat John Tester, who defended banks over a controversy involving debit card fees, narrowly won his reelection.

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In addition, financial firms are likely to do everything in their power to keep Warren from holding a seat on the Senate Banking Committee, which would further empower her to promote greater regulation of the banks. The committee assignment is a genuine possibility, though it is primarily up to Democratic Senate Majority Leader Harry Reid.  Reid would likely be amenable to the assignment, but it is worth noting that he like many Republicans and Democrats accepts money from banks. For example, in 2010, Reid received $5,000 from Goldman Sachs, along with several thousand from the Mortgage Bankers Association and the American Bankers Association.

And, the Democratic National Committee also accepts bank money freely. Twenty million dollars were funneled in from Bank of America and Wells Fargo to fund the Democratic National Convention.

Wall Street will also try to influence Obama’s nominee to replace Geithner and will continue supporting Democratic candidates. If his first-term picks for economic advisers offer any clues, the Obama administration may again be stacked with economic advisers like Larry Summers and Tim Geithner who are viewed as friendly to the banks. Geithner, along with Congressional Republicans and Wall Street, are among the reasons Warren was passed over head up the CFPB.

As Monica Potts wrote in her recent American Prospect piece, “There was huge public support for Warren to be appointed director [of the CFPB], but it was clear from the start that congressional Republicans would oppose her nomination. They associated her with an idea, a new regulatory body, that they loathed. Warren also had opposition inside the Obama administration; she’d publicly clashed with Treasury Secretary Timothy Geithner, who believed some of the reforms on credit cards, mortgages, and other consumer products Warren called for would cripple the still-fragile banks.”

Financial firms are already scrambling to rebuild relations with Obama and other Democrats again, after staunchly supporting Romney in this election. Going forward, we may see a rift between Democrats who fall in line with Warren’s philosophy and those want to keep Wall Street happy.

Commentary Politics

Is Clinton a Progressive? Not If She Chooses Tim Kaine

Jodi Jacobson

The selection of Tim Kaine as vice president would be the first signal that Hillary Clinton intends to seek progressive votes but ignore progressive values and goals, likely at her peril, and ours.

During the 2016 presidential campaign, former secretary of state and presumptive Democratic presidential nominee Hillary Rodham Clinton has frequently claimed to be a progressive, though she often adds the unnecessary and bewildering caveat that she’s a “progressive who likes to get things done.” I’ve never been sure what that is supposed to mean, except as a possible prelude to or excuse for giving up progressive values to seal some unknown deal in the future; as a way of excusing herself from fighting for major changes after she is elected; or as a way of saying progressives are only important to her campaign until after they leave the voting booth.

One of the first signals of whether Clinton actually believes in a progressive agenda will be her choice of running mate. Reports are that Sen. Tim Kaine, former Virginia governor, is the top choice. The selection of Kaine would be the first signal that Clinton intends to seek progressive votes but ignore progressive values and goals, likely at her peril, and ours.

We’ve seen this happen before. In 2008, then-presidential candidate Barack Obama claimed to be a progressive. By virtue of having a vision for and promise of real change in government and society, and by espousing transparency and responsibility, he won by a landslide. In fact, Obama even called on his supporters, including the millions activated by the campaign’s Organizing for Action (OFA), to keep him accountable throughout his term. Immediately after the election, however, “progressives” were out and the right wing of the Democratic party was “in.”

Obama’s cabinet members in both foreign policy and the economy, for example, were drawn from the center and center-right of the party, leaving many progressives, as Mother Jones’ David Corn wrote in the Washington Post in 2009, “disappointed, irritated or fit to be tied.” Obama chose Rahm Emanuel as Chief of Staff, a man with a reputation from the days of Bill Clinton’s White House for a reluctance to move bold policies—lest they upset Wall Street or conservative Democrats—and a deep disdain for progressives. With Emanuel as gatekeeper of policies and Valerie Jarrett consumed with the “Obama Brand” (whatever that is), the White House suddenly saw “progressives” as the problem.

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It became clear that instead of “the change we were hoping for,” Obama had started on an impossible quest to “cooperate” and “compromise” on bad policies with the very party that set out to destroy him before he was even sworn in. Obama and Emanuel preempted efforts to push for a public option for health-care reform, despite very high public support at the time. Likewise, the White House failed to push for other progressive policies that would have been a slam dunk, such as the Employee Free Choice Act, a major goal of the labor movement that would have made it easier to enroll workers in unions. With a 60-vote Democratic Senate majority, this progressive legislation could easily have passed. Instead, the White House worked to support conservative Democrat then-Sen. Blanche Lincoln’s efforts to kill it, and even sent Vice President Joe Biden to Arkansas to campaign for her in her run for re-election. She lost anyway.

They also allowed conservatives to shelve plans for an aggressive stimulus package in favor of a much weaker one, for the sole sake of “bipartisanship,” a move that many economists have since criticized for not doing enough.  As I wrote years ago, these decisions were not only deeply disappointing on a fundamental level to those of us who’d put heart and soul into the Obama campaign, but also, I personally believe, one of the main reasons Obama later lost the midterms and had a hard time governing.  He was not elected to implement GOP lite, and there was no “there, there” for the change that was promised. Many people deeply devoted to making this country better for working people became fed up.

Standing up for progressive principles is not so hard, if you actually believe in them. Sen. Elizabeth Warren (D- MA) is a progressive who actually puts her principles into action, like the creation against all odds in 2011 of the Consumer Finance Protection Bureau, perhaps the single most important progressive achievement of the past 20 years. Among other things, the CFPB  shields consumers from the excesses of mortgage lenders, student loan servicers, and credit card companies that have caused so much economic chaos in the past decade. So unless you are more interested in protecting the status quo than addressing the root causes of the many problems we now face, a progressive politician would want a strong progressive running mate.

By choosing Tim Kaine as her vice president, Clinton will signal that she values progressives in name and vote only.

As Zach Carter wrote in the Huffington Post, Kaine is “setting himself up as a figure willing to do battle with the progressive wing of the party.” Kaine is in favor of the Trans-Pacific Partnership (TPP), a trade agreement largely negotiated in secret and by corporate lobbyists. Both Sen. Bernie Sanders, whose voters Clinton needs to win over, and Sen. Elizabeth Warren oppose the TPP because, in Warren’s words, it “would tilt the playing field even more in favor of … big multinational corporations and against working families.”

The progressive agenda includes strong emphasis on effective systems of governance and oversight of banks and financial institutions—the actors responsible, as a result of deregulation, for the major financial crises of the past 16 years, costing the United States trillions of dollars and gutting the financial security of many middle-class and low-income people.

As Warren has stated:

Washington turned a blind eye as risks were packaged and re-packaged, magnified, and then sold to unsuspecting pension funds, municipal governments, and many others who believed the markets were honest. Not long after the cops were blindfolded and the big banks were turned loose, the worst crash since the 1930s hit the American economy—a crash that the Dallas Fed estimates has cost a collective $14 trillion. The moral of this story is simple: Without basic government regulation, financial markets don’t work. That’s worth repeating: Without some basic rules and accountability, financial markets don’t work. People get ripped off, risk-taking explodes, and the markets blow up. That’s just an empirical fact—clearly observable in 1929 and again in 2008. The point is worth repeating because, for too long, the opponents of financial reform have cast this debate as an argument between the pro-regulation camp and the pro-market camp, generally putting Democrats in the first camp and Republicans in the second. But that so-called choice gets it wrong. Rules are not the enemy of markets. Rules are a necessary ingredient for healthy markets, for markets that create competition and innovation. And rolling back the rules or firing the cops can be profoundly anti-market.

If Hillary Clinton were actually a progressive, this would be key to her agenda. If so, Tim Kaine would be a curious choice as VP, and a middle finger of sorts to those who support financial regulations. In the past several weeks, Kaine has been publicly advocating for greater deregulation of banks. As Carter reported yesterday, “Kaine signed two letters on Monday urging federal regulators to go easy on banks―one to help big banks dodge risk management rules, and another to help small banks avoid consumer protection standards.”

Kaine is also trying to portray himself as “anti-choice lite.” For example, he recently signed onto the Women’s Health Protection Act. But as we’ve reported, as governor of Virginia, Kaine supported restrictions on abortion, such as Virginia’s parental consent law and a so-called informed consent law, which, he claimed in 2008, gave “women information about a whole series of things, the health consequences, et cetera, and information about adoption.” In truth, the information such laws mandate giving out is often “irrelevant or misleading,” according to the the Guttmacher Institute. In other words, like many others who let ideology rather than public health guide their policy decisions, Kaine put in place policies that are not supported by the evidence and that make it more difficult for women to gain access to abortion, steps he has not denounced. This is unacceptable. The very last thing we need is another person in the White House who further stigmatizes abortion, though it must be said Clinton herself seems chronically unable to speak about abortion without euphemism.

While there are many other reasons a Kaine pick would signal a less-than-secure and values-driven Clinton presidency, the fact also stands that he is a white male insider at a time when the rising electorate is decidedly not white and quite clearly looking for strong leadership and meaningful change. Kaine is not the change we seek.

The conventional wisdom these days is that platforms are merely for show and vice presidential picks don’t much matter. I call foul; that’s an absolutely cynical lens through which to view policies. What you say and with whom you affiliate yourself do indeed matter. And if Clinton chooses Kaine, we know from the outset that progressives have a fight on their hands, not only to avoid the election of an unapologetic fascist, but to ensure that the only person claiming the progressive mantle actually means what she says.

Analysis LGBTQ

A Challenge to North Carolina’s HB 2 Could Mean Greater Protection for Trans People

Imani Gandy

Courts have historically been reluctant to designate transgender people as a discrete group that has suffered discrimination and therefore needs special legal treatment. But that may be changing.

A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcaño and Payton McGarry have challenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.

The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.

Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”

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Since the Court first articulated the concept in the 1930s, it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.

Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.

Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”

But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.

Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.

The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in part to their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.

Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”

This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.

But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.

In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”

Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression. In a 2011 case, Glenn v. Brumbythe 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.

Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.

This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)

In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”

However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”

As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”

For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicit constitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.

Until recently.

In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.

Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.

The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. United States, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.

In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.

And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.

Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”

Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”

It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.

In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?

There is none.