In December, President Barack Obama nominated attorney Sharon Bowen to help run the Commodity Futures Trading Commission (CFTC), which regulates derivatives and futures markets. Bowen has little experience inderivatives, and she has represented big banks in court. Financial-reform advocates are skeptical that she is the right woman for the job—and are trying to generate opposition to the nominee. But the real question is this: Will middle-class crusader Sen. Elizabeth Warren (D-Mass.) oppose Bowen's confirmation? And if she did, would that derail Bowen's candidacy?
If Warren signals she will vote against Bowen, other key senators may follow suit, and that could cause a problem for the White House and Bowen. There's precedent for this. In September, Warren's no-vote threat helped scuttle the nomination of former Treasury Secretary Larry Summers, whom Obama was considering as chairman of the Federal Reserve.*
Warren has weighed in on Obama's CFTC picks before. In November, she expressed skepticism about Timothy Massad, the Treasury Department official Obama tapped to be chair of the agency, saying she needs more information about Massad's views on regulation and his qualifications for the post. (Massad has not yet been confirmed by the Senate.)
Warren has declined to comment on Bowen's nomination. But there's reason to suspect she may not approve of this pick. In late November, the Massachusetts senator and eight other Senate Dems sent a letter to Obama urging him to nominate CFTC commissioners who have "demonstrated experience in futures, options and swaps markets" and who possess "the expertise, independence and track record necessary to…provide long overdue oversight to the swap and derivative markets that pose a systemic risk to our economy." In the same letter, the senators expressed concern that if hard-nosed reformers are not nominated to vacant CFTC posts, Wall Street may have more influence at the agency. "We are deeply concerned that some industry interests may view [these nominations] as opportunities to roll back or slow down essential reforms," Warren and her colleagues wrote.
Bowen does not have the traits Warren and the others called necessary. She has no record of financial reform and little experience regarding derivatives. (Derivatives are financial instruments with values derived from underlying variables, such as interest rates.) Instead,Bowen is a partner at a Wall Street law firm, Latham & Watkins, that has represented Big Finance clients, including Goldman Sachs, Merrill Lynch, and Deutsche Bank.Michael Greenberger, a law professor at the University of Maryland who previously worked at the CFTC, argues that Bowen's background will "undoubtedly" make the CFTC more receptive to Wall Street lobbying, just as Warren and her colleagues fear.
Outgoing CFTC Chairman Gary Gensler—an aggressive financial reformer—also started his career on Wall Street and went onto deregulate derivatives at the Treasury Department. When he was nominated in 2009, progressive senators were skeptical that he was the right person to head up the agency. But Gensler allayed their fears by reaching out to financial-reform groups, CFTC commissioners, and senators, and he put forward a plan for regulating derivatives, which had been largely unregulated before the financial crisis. "It was a very impressive document," says Greenberger. "He made it clear that he understood what problem was and he knew how to fix it." So far, Bowen has not publicly provided any indications of her priorities for the CFTC, Greenberger says.
Bowen did not respond a request for comment for this story. Her firm, Latham & Watkins, directed questions to the White House, which did not respond.
If Warren and other Senate Dems oppose Bowen, they may have Republican company. According to Hill staffers, some GOPers are not happy with Bowen's work as chair of the board of directors of the Securities Investor Protection Corporation, an industry fund that covers losses from brokerage firm failures. SIPC was supposed to compensate the victims of Allen Stanford's $7 billion Ponzi scheme, but is trying to get out of it. Victims of the $60 billion Madoff ponzi scheme have also been disappointed by what they see as insufficient compensation by SIPC.
"[Bowen] has been a part of all that," says a Republican Hill aide. Her nomination "give[s] us great pause."
*This story has been corrected to reflect that the Senate agriculture committee, not the banking committee, vets CFTC nominees.
Last week, a federal court issued a ruling strengthening protections for Americans injured by chemicals on the job.
Both state and federal statues dictate how companies are required to label harmful chemicals in the workplace. Federal law usually trumps state law, but victims injured due to inadequate chemical labeling are still allowed to sue their employer for damages under state law. Earlier this year, the American Tort Reform Association (ATRA) sued the Occupational Safety and Health Administration (OSHA), which is the federal workplace safety regulatory agency, arguing that OSHA regulations only allow workers to sue under federal law, not state law. (Tort reform refers to proposed changes to the civil justice system that would cut down on personal injury lawsuits.) Last week, the powerful DC Circuit Court unanimously rejected ATRA's argument, which consumer advocates say is a win for workers.
"The court’s opinion is great news for those who want to hold chemical manufacturers liable for injuries to employees," Leah Nicholls, an attorney with the public interest law firm Public Justice, said in a blog post Tuesday.
While the ruling does not mean that other courts will agree that workers are allowed to sue under state law, the DC Circuit decision "will help persuade other courts that the existence of federal regulations does not prevent people from suing under state laws," Nicholls adds.
ATRA is a coalition of industry groups founded in 1986 whose members range from the chemical industry to the tobacco industry to the drug industry. The organization advocates for limits on corporate liability for damage caused by member industries' products and services. Since the group's inception, corporations including Dow Chemical, Exxon, Phillip Morris, and Aetna have helped fund it.
In the case before the DC Circuit, ATRA said that when OSHA issued its regulation governing how federal chemical injury law preempts state chemical injury law, it changed the definition of "preemption," which only Congress is allowed to do.
Detaining certain defendants before trial makes them more likely to commit a new crime, according to a recent report.
Many pretrial detainees are low-risk, meaning that if they are released before trial, they are highly unlikely to commit other crimes and very likely to return to court. When these defendants are held for two to three days before trial, as opposed to just 24 hours, they are nearly 40 percent more likely to commit new crimes before their trial, and 17 percent more likely to commit another crime within two years, according to a report released last month by the Laura and John Arnold Foundation, a private foundation that funds criminal justice research.
"The primary goal of the American criminal justice system is to protect the public," the authors of the report say. "But…the pretrial phase of the system is actually helping to create new repeat offenders."
The report—based on studies of both state and federal courts—also found that the longer low-risk detainees are held behind bars before trial, the more likely they are to commit another crime. Low-risk defendants who were detained for 31 days or more before they had their day in court offended 74 percent more frequently before trial than those detained for just one day. The study found similar results for moderate-risk defendants, though for these offenders, the rate of increase in new criminal activity is smaller. When it comes to high-risk offenders, the report found no correlation between pre-trial detention time and recidivism.
The report noted that recidivism could be curbed if judges made an effort to distinguish between low-, moderate-, and high-risk offenders. "Judges, of course, do their best to sort violent, high-risk defendants from nonviolent, low-risk ones," the report says, "but they have almost no reliable, data-driven risk assessment tools at their disposal to help them make these decisions." Fewer than ten percent of US jurisdictions do any sort of risk-assessment during the pretrial stage.
Not only does unnecessary pretrial detention create repeat offenders, it costs taxpayers a lot of money. Pretrial detainees represent more than 60 percent of the total inmate population in the country's jails. The cost of incarcerating defendants pretrial is about $9 billion.
Sen. Elizabeth Warren (D-Mass.) with White House senior adviser Valerie Jarrett.
On Tuesday, Sen. Elizabeth Warren (D-Mass.) and six of her colleagues in the Senate introduced a bill that would prevent employers from using credit checks in the hiring process, a practice that disproportionately hurts poor people.
Over the past few decades, credit reporting bureaus have begun selling their services not just to lenders, but to a wide range of employers. Forty-seven percent of employers check applicants' credit history as an indicator of their employability, according to a 2012 survey by the Society for Human Resource Management. But research shows that a person's credit score has nothing to do with her likelihood of succeeding in the workplace. The Equal Employment for All Act—co-sponsored by Sens. Richard Blumenthal (D-Conn.), Sherrod Brown (D-Ohio), Patrick Leahy (D-Vt.), Edward J. Markey (D-Mass.), Jeanne Shaheen (D-N.H.), and Sheldon Whitehouse (D-R.I.)—would prohibit the judging of applicants by this metric.
"A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual's character or abilities," Warren said. "Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness—let people compete on the merits, not on whether they already have enough money to pay all their bills."
Chi Chi Wu, a staff lawyer at the National Consumer Law Center in Boston, told the New York Times in May that most of the people who contacted her group complaining that they'd been denied a job because of poor credit were low-wage workers applying to big retail chains. "Someone loses their job," she said, "so they can't pay their bills—and now they can't get a job because they couldn’t pay their bills because they lost a job? It’s this Catch-22 that makes no sense."
Who is losing unemployment benefits? The long-term unemployed. After state unemployment benefits run out—usually after 26 weeks—federal emergency unemployment benefits kick in for up to another 47 weeks. Since Congress didn't renew the program, 1.3 million Americans will be kicked off benefits, which average $1,166 per month. By the end of 2014, another 3.6 million will lose their benefits.
Why are they called emergency benefits? In 2008, under President George W. Bush, Congress authorized emergency unemployment compensation to help the jobless cope with the recession, giving workers a total of 59 weeks of unemployment compensation. A year later, President Barack Obama signed a law giving the unemployed 14 more weeks of jobless benefits. At the height of the recession, Americans could get up to 99 weeks of unemployment pay. That number has since dipped to a maximum of 73 weeks. This is the first time since 2008 that Congress hasn't extended the program.
The recovery is picking up pace. Is it time to end the program? Many Republicans think so. Sen. Rand Paul (R-Ky.) said last week that he thinks extending the benefits fosters unemployment. "I do support unemployment benefits for the 26 weeks that they're paid for. If you extend it beyond that, you do a disservice to these workers," Paul told Fox News. "When you allow people to be on unemployment insurance for 99 weeks [sic], you're causing them to become part of this perpetual unemployed group in our economy."
In past recessions, extended unemployment benefits ended when the long-term unemployed represented about 1.3 percent of the workforce. Today, the long-term jobless represent more than 2 percent of the labor force.
What will happen to Americans who lose their benefits? Even though the average monthly unemployment payment isn't nearly enough to support a family of four, the benefits do help people scrape by. When extended unemployment insurance expires, many Americans will fall deeper into poverty. In 2012, jobless benefits helped keep 1.7 million people—including 446,000 children—out of poverty, according to the National Employment Law Project.
[S]ome fairly substantial fraction of the long-term unemployed will just stop looking for a job and drop out of the labor force. If you're long-term unemployed, then almost by definition looking for work has not been very successful at getting you work. What it has gotten you is a UI [unemployment insurance] check. Take away the check, there's no point in bothering.
Could the expiring benefits stall the recovery? Unemployment benefits act as a short-term economic stimulus, because unemployed people spend their benefits checks immediately. If the benefits were to continue, the economy would gain 200,000 jobs, and the GDP would grow by 0.2 percent in 2014, according to the Congressional Budget Office.
Is there any way out of this mess? When Congress reconvenes in early January, Senate Majority Leader Harry Reid (D-Nev.) will push a retroactive extension of the benefits. Rep. Chris Van Hollen (D-Md.) is urging Democrats to withhold support for the farm bill unless it addresses unemployment insurance.
"The people that are unemployed for a long period of time are Democrats and they are Republicans," Reid said last week. "This is an issue that Republicans, I think, need more than we need it. This is something I think will be extremely difficult for them to turn away from."
But because the spending on unemployment benefits will not be accompanied by a spending reduction, many Republicans are likely to vote against it.