The SEC Undermined a Powerful Weapon Against White-Collar Crime

“In a quiet vote on Sept. 23, the Republican-dominated SEC adopted amendments that could allow it to lower payments to whistleblowers. Its argument is that awards should only be as large as necessary to prompt people to come forward, and excessively high payouts might be better spent on other priorities.

Advocates say that may dissuade whistleblowers, insulating the biggest Wall Street banks and investment firms, which are typically subject to the largest fines and whose wrongdoing is often the most difficult to spot without help from highly paid insiders.

The SEC’s shift may exacerbate the effects of the Trump administration’s blitz of deregulation of the financial services industry, advocates fear. With weaker incentives to report fraud, regulators may have fewer allies as they monitor markets for the kind of bad behavior that can follow such loosening of rules.”

” The SEC declined to comment. Defenders of the SEC’s action point out that the rule also contained some provisions that are good for whistleblowers, such as the ability to more quickly dismiss frivolous complaints that gum up the system and a new presumption that whistleblowers who help the commission attain settlements worth less than $5 million should get the maximum allowable award. Also, fiscal year 2020 saw the highest payouts in the program’s history and the most claims processed overall.”

“The commission weakened the law in other ways, too, making it harder for whistleblowers to get a bounty if they did not have inside information but instead provided analysis that SEC staff members could plausibly have inferred on their own — even if the staff hadn’t done so.”

“The financial adviser who blew the whistle on his firm says the new rules will surely dissuade some insiders at his level from stepping forward.

“If these guys decide they want to lower their awards, they’re going to get $200,000 employees taking a shot, and that’s about it,” he said. “The only people who know stuff are the people who are at the top.””

““I appreciate the fact that the average guy on the street can’t comprehend these numbers,” he said. “That it would be offensive to a normal human being making normal money. Lots of people on Wall Street make $100 million every 10 years. They’re not risking that for a million bucks.””

The Conservative Idea That Would Let Biden Seize Control of Washington

“The outgoing administration will continue to hold power within administrative agencies long after noon on January 20, 2021. Even worse: In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for “good cause.” For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal—with the right to seek judicial review of the legal sufficiency of the president’s reasons if he attempts to remove them from office. By confirming a slew of last-minute Trump appointments to key posts within the administrative bureaucracy, Trump’s imprint on the federal government could remain long after he and Melania have decamped from the White House.”

“Biden could adopt a theory advanced by conservative judges and legal academics, and long championed by The Federalist Society: The unitary executive theory. Under this theory, President Biden would be constitutionally empowered to remove executive-branch personnel who are opposed to his administration’s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.
The Federalist Society, a conservative legal organization that has played an integral role in Trump’s judicial selection process, has long advocated the unitary executive theory. Under this theory, the president must be able to exercise direct forms of control over any and all officers holding policymaking posts within the federal executive branch—including, for example, a sitting member of the Federal Reserve Board of Governors.

Trump-appointed federal judges, such as Brett Kavanaugh and Neomi Rao, have written in both academic articles and judicial opinions about the central importance of the unitary executive theory to the proper enforcement of the separation of powers. Both have argued, strenuously, that the federal courts must interpret “good cause” removal protections very narrowly so that the president has the ability to fire subordinates within the executive branch in whom he lacks confidence.

Under this theory, it’s unthinkable that an entity charged with enforcing federal laws, such as the FCC, could be rendered largely unaccountable to the president.”

“Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration’s policies. Judy Shelton, for example, a Trump nominee to the Federal Reserve Board, has publicly advocated a return to the gold standard. If the Federal Reserve Board were to embrace her position, it would hobble the agency’s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton’s nomination currently remains pending before the Senate; despite failing to secure a majority vote last month (with two GOP senators absent due to Covid-19), Senator McConnell has preserved his ability to call up her nomination again before President-elect Biden is inaugurated.

If Republicans retain control of the Senate after the Georgia special elections, Biden should offer McConnell a choice: Either swiftly confirm a Biden appointee to the fifth seat on the FCC, or President Biden will remove Simington from the commission. Biden should adopt exactly the same negotiating tactic with respect to other federal independent agencies where the presence of lame-duck Trump holdovers, coupled with the Senate’s refusal to timely confirm the president’s nominees, would leave Biden without the ability to perform his constitutional duty to “take Care that the Laws be faithfully executed.”

Indeed, it may well be that the Biden administration’s only practical option to counter these unprecedented midnight appointments will be to fire these appointees after he takes office. And, when the newly unemployed federal officers seek judicial review of Biden’s action, the administration should quote the Federalist Society judges back to themselves in the legal briefs. In fact, were Biden to signal that he will remove illegitimate lame-duck appointees after taking office, it might persuade McConnell to cease and desist trying to saddle the Biden administration with a federal bureaucracy committed to seeing his administration fail.”

“Trying to booby-trap administrative agencies for an incoming administration is inconsistent with a meaningful commitment to the peaceful transfer of power.

To be sure, taking this step would constitute a further escalation of the confirmation wars and represent yet another step toward creating an imperial presidency. Firing a GOP member of the FCC would, like the Senate’s behavior, break an existing convention and also escalate of the battle between the Senate and the president, in periods of divided government, over control of independent regulatory agencies.

On the other hand, though, it was the Senate—not Biden—that started this fight.

Moreover, for independent regulatory bodies that feature multimember heads and partisan balance requirements for the membership, Biden simply has no effective workaround other than dismissing GOP members if the Senate will not consider his nominees with the same alacrity that they have considered Trump’s lame-duck picks. The Federal Vacancies Reform Act does not, for instance, permit a president to name “acting” voting members to independent agencies. Thus, for administrative bodies like the FCC, the Securities and Exchange Commission and the Equal Employment Opportunity Commission, which have partisan balance requirements and feature a multimember head, the only way for the president to establish control over the agency, if the Senate will not speedily consider and confirm his nominees, would be to remove opposition party members from it.

Further expanding the president’s unilateral authority is unfortunate collateral damage—but if a choice must be made between having an agency operating free and clear of meaningful presidential supervision and further accelerating the devolution of the separation of powers toward an imperial presidency, unaccountable government power in the hands of a rogue agency presents the greater of the two evils.

McConnell’s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work.”

The ‘deep state’ of loyalists Trump is leaving behind for Biden

“A higher-than-usual number of Trump administration political appointees — some with highly partisan backgrounds — are currently “burrowing” into career positions throughout the federal government, moving from appointed positions into powerful career civil service roles, which come with job protections that will make it difficult for Biden to fire them.
While this happens to some degree in every presidential transition, and some political appointees make for perfectly capable public servants, Biden aides, lawmakers, labor groups and watchdog organizations are sounding the alarm — warning that in addition to standard burrowing, the Trump administration is leaning on a recent executive order to rush through dozens if not hundreds of these so-called “conversions.” The fear is that, once entrenched in these posts, the Trump bureaucrats could work from the inside to stymie Biden’s agenda, much of which depends on agency action.

The October executive order — which Biden is expected to swiftly rescind — has allowed federal agencies to help political appointees circumvent the usual merit-based application process for career civil service jobs, while moving career policymakers into a new job category with far fewer legal protections.

Thanks to weak transparency laws, the full impact of both changes may not be known for months.”

Why the Biden administration should establish a Department of Climate

“Establishing new Cabinet departments in the US isn’t that unusual either. In fact, more than half of the government’s 15 active departments have been formed in just the past 75 years. But among these executive-level departments and in all the hundreds of federal agencies, not one has a mission solely dedicated to the climate crisis.”

“When the US faced grave security threats in the past, it rose to those challenges by reorganizing the executive branch. For instance, after World War II, Congress enacted the National Security Act of 1947 and it was signed by President Truman. The Act reorganized military and intelligence branches, established the National Security Council and Central Intelligence Agency, and merged the War and Navy department into what became the Department of Defense.
Following the terrorist attacks on September 11, 2001, the Department of Homeland Security was established, integrating 22 different federal agencies and offices into one unified Cabinet department. In a message to Congress on June 18, 2002, President George W. Bush wrote: “History teaches us that new challenges require new organizational structures. History also teaches us that critical security challenges require clear lines of responsibility and the unified effort of the US Government.””

“legion of civil servants, who have devoted their careers to combating climate change, are fragmented and lack that clear line of responsibility President Bush described as necessary to address critical security challenges. These leading experts could be convened under one broad mission, with the potential for producing unified actions and outcomes far greater than the sum of their disaggregated parts.
Just as the Department of Homeland Security promises “relentless resilience” to attacks against the United States, a Department of Climate could deploy this same mindset, ensuring the US has the foundation it needs to take on the threats climate change poses to this nation and to future generations.”

“federal health agencies’ ability to focus on climate-related health impacts is currently inadequate. This is in part due to leadership that is dismissive of climate change — and in part because their attention is, understandably, on the Covid-19 pandemic. And the 2018 hurricane season before that, and Zika before that, and Ebola before that. While the CDC and other health agencies are full of experts working to mitigate climate-related health threats, their priorities will always be driven by the next new global health crisis — and by each new administration’s political whims.

A new department would not be completely immune to the same geopolitical winds that tug on other federal agencies’ attention; but a dedicated budget and clear language in its mission mandating action on climate change would better position it against such winds. Instead of each new administration interpreting whether work on climate falls within the scope of an agency’s mission, there would be no question that addressing climate change is within the purview of a Department of Climate.

While there are many offices or divisions across numerous agencies engaged in work related to energy or transportation, these cross-cutting topics nevertheless have Cabinet-level leadership and congressionally determined budgets to ensure their missions are met regardless of who sits in the White House. As with education, labor, or agriculture, we should have a Department of Climate so that our nation always has the clear dedication of resources it needs to concentrate on crucial issues.”

Trump Races to Weaken Environmental and Worker Protections, and Implement Other Last-Minute Policies, Before Jan. 20

“Six days after President Donald Trump lost his bid for reelection, the U.S. Department of Agriculture notified food safety groups that it was proposing a regulatory change to speed up chicken factory processing lines, a change that would allow companies to sell more birds. An earlier USDA effort had broken down on concerns that it could lead to more worker injuries and make it harder to stop germs like salmonella.

Ordinarily, a change like this would take about two years to go through the cumbersome legal process of making new federal regulations. But the timing has alarmed food and worker safety advocates, who suspect the Trump administration wants to rush through this rule in its waning days.

Even as Trump and his allies officially refuse to concede the Nov. 3 election, the White House and federal agencies are hurrying to finish dozens of regulatory changes before Joe Biden is inaugurated on Jan. 20. The rules range from long-simmering administration priorities to last-minute scrambles and affect everything from creature comforts like showerheads and clothes washers to life-or-death issues like federal executions and international refugees. They impact everyone from the most powerful, such as oil drillers, drugmakers and tech startups, to the most vulnerable, such as families on food stamps, transgender people in homeless shelters, migrant workers and endangered species.”

“these final weeks are solidifying conservative policy objectives that will make it harder for the Biden administration to advance its own agenda”

“The Trump administration is on pace to finalize 36 major rules in its final three months, similar to the 35 to 40 notched by the previous four presidents”

“In 2017, Republican lawmakers struck down more than a dozen Obama-era rules using a fast-track mechanism called the Congressional Review Act. That weapon may be less available for Democrats to overturn Trump’s midnight regulations if Republicans keep control of the Senate, which will be determined by two Georgia runoffs.”

ProPublica is tracking those regulations as they move through the rule-making process.”

Health Bureaucrats Botched the Response to Coronavirus. Trump Made It Even Worse.

“The single most important failure of the U.S. response to COVID-19, the disease caused by the novel coronavirus, has been the slow rollout of testing. This was an abject failure of bureaucracy. But it was also a failure of presidential leadership.
The countries that have had the most success in containing the outbreak, such as South Korea and Singapore, have done so through early, rapid, and widespread testing and contact tracing, followed by targeted quarantines. South Korea and the United States discovered initial cases of the coronavirus on the same day in January. Since then, some 290,000 people in South Korea have been tested and new daily cases have fallen from 909 to just 93. Despite a much larger population, the United States, tested just 60,000 people in the same period of time.”

“Much of the failure to make mass testing available lies with the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). As a Wall Street Journal report makes clear, the CDC, which managed the development of the initial test kits, botched the job in just about every possible way: The CDC not only produced a faulty test that had to be retracted but adopted narrow testing criteria that meant many people with symptoms simply couldn’t be tested.

Perhaps most disastrously, as The Washington Post reports, federal health agencies initially declined to certify tests produced by private companies that were better suited for rapid mass testing anyway. This is despite the fact that experts, including the former head of the FDA, were publicly recommending that they do so as early as February 2.

The CDC was following its usual protocols, developing initial diagnostic tests on its own in order to maintain quality control, as it usually does. But that’s exactly the problem.”

“But this was also a failure of political leadership, most notably from President Donald Trump. For weeks, Trump and senior White House officials actively downplayed the threat of the virus.

As late as February 25, National Economic Council adviser Larry Kudlow was offering assurances that the coronavirus was “contained” and that it was “pretty close to airtight.” Trump treated the virus with similar breeziness, suggesting that the virus was “going to disappear” and that while it might get worse, “nobody really knows.””

“The problem here is obvious: Trump, who as the head of the executive branch oversees federal agencies such as the FDA, did not view the virus as a serious problem—and did not want others to view it that way either. That, in turn, translated into a downstream lack of urgency, which meant that critical aspects of the response were not prioritized. According to The Wall Street Journal, health officials who have examined the testing calamity have concluded that it was a result of both bureaucratic bumbling and a “broader failure of imagination,” in which Trump and other administration officials “appeared unable or unwilling to envision a crisis of the scale that has now emerged.”

The job of a president is to make decisions, set priorities, and convey clear information to both the public and the staff of the executive branch. This is especially important in a moment of crisis, when the executive is in charge of acting both quickly and with sound judgment. In this outbreak, Trump has failed on every count. Not only did he fail to see the threat even when it was apparent to experts, but he actively undermined preparedness by downplaying its significance far long after the problem was apparent, and by providing false and misleading information as the mitigation effort proceeded.”

“The federal health bureaucracy deserves much of the blame for America’s faltering response to the coronavirus outbreak. But the president has made the fiasco worse.

The bureaucracy reports up to an executive, who is tasked with setting priorities and ensuring performance—and for taking responsibility when there are failures. Instead, Trump has inaccurately blamed the Obama administration for failures that occurred on Trump’s watch. (Indeed, under Barack Obama, diagnostic tests for swine flu were designed and approved in less than two weeks.) Asked whether any of this is his fault, the president rejected the idea, saying, “I don’t take responsibility at all.” Trump’s refusal to admit failures makes it more likely that he will repeat them, and that more Americans will pay the price.”