America has crisis of confidence

Gordon L. Weil

Welcome to this month’s crisis of confidence.

A bank failure, the debt ceiling conflict and the proposed Maine state budget have something in common. They all raise doubt about our confidence in institutions on which we depend.

The underlying cause is politics.  The effect of this loss of confidence in our government may be more important than how each issue is resolved.

The Silicon Valley Bank failed because of truly poor management.  Its executives invested their depositors’ funds unwisely, making it impossible for them to get their money out of the bank when they needed it.  What started with a trickle of withdrawals became a flood, and the bank failed.  Depositors in other banks panicked.  The problem spread, endangering the economy.

In 2008, banks got into trouble and some failed. The federal government shored up others. The lesson was learned, and Congress added new rules improving the chances that banks would hold enough available reserves to meet stepped up depositor withdrawals.

The biggest banks, the ones considered “too big to fail” because of the possibly massive effect of failure, are subject to “stress tests” to ensure their reserves are adequate.  So were other medium-size banks, but many, including SVB, disliked being checked.  The Trump administration backed off the scrutiny on all but the biggest.

The reversal was pushed by a dislike of what was claimed to be government overregulation. Unfortunately, the banking system turned out to need the safeguards.  Fortunately, there was a back-up.

To stop the panic right away, federal government regulators took over SVB and said depositors would get all their money.  Remember that little sign on the bank that says “Member FDIC.”  It means something. The Federal Deposit Insurance Corporation, funded by banks, has the cash to cover the crash.

Nobody complains when the FDIC and the Federal Reserve, both government agencies, save the banking system.  But Republican deregulators now warn against using tax dollars to bail out the banks.  The federal agencies are not using taxpayer money and don’t need to.  But, if attacking “big” government scores political points, the opponents of regulation don’t back off.

Similarly, the partisan battle over raising the debt ceiling calls into question whether Washington will do a backdoor reversal, this time of spending decisions it has already made.  That raises doubts about the federal government’s ability to pay its debts, and the world’s financial system loses confidence in the most important currency – the U.S. dollar.

The reason why the dollar is the world’s main money is that the U.S. has a long history of paying what it owes lenders.  Plus, it’s the world’s largest economy. That creates great confidence in the dollar and, as a result, in the U.S.

If the U.S. defaults on its debt, weakening confidence in the dollar, number-two China is ready to offer its currency as the alternative.  American world power probably depends as much on the strength of the dollar as on the strength of the armed forces.  It boils down to a question of confidence: can the world still rely on America?

President Biden might solve the problem himself and ignore GOP attempts to hold the debt ceiling hostage to reversing previous spending decisions. The Constitution says the U.S. pays its debts. So, there may be no need for a debt ceiling bill at all, and Biden could prevent a crisis of confidence.

This can even happen in Maine.

In a 2004 referendum, Maine voters decided that the state should pay 55% of basic school costs. In another vote, they raised taxes on the wealthiest to pay for the added state budget cost.  The Legislature promptly overruled the voters and reversed the tax increase but capped state spending plus making a start on reaching 55%.

Under Gov. Janet Mills, the state now has enough money to pay the 55% and stay under the cap, which it has observed aside from funding the school adder.  Now, as part of her budget, she proposes to break the deal that had been made.  Flush with funds, state government seems to believe the cap, now almost 20 years old, can also be flushed.

The Maine GOP says the state should keep to a deal that was made after the Legislature overruled two referendums. If Mills wants to bury the deal, she could either ask for a clean vote on the issue by the Legislature or send the question back to the voters.

The governor has the legislative votes to do what she wants. But the action, as in the other two cases, explains a frequently heard citizen reaction to government.

Some voters say that politicians don’t keep their word, abandoning promises meant to reassure voters when they think the voters aren’t looking.  Lacking confidence in government, why vote?

The real message: low trust in government can threaten democracy.

Dangerous proposal for ‘national divorce’

Gordon L. Weil

Let’s get a divorce.

Rep. Marjorie Taylor Greene (R-GA) has loudly proposed a “national divorce” for the U.S. There are what the law calls “irreconcilable differences” between the Red states and the Blue states, so we should split up. Silly as that sounds, her proposal offers the chance for remembering just who this “odd couple” is.

Former GOP Rep. Liz Chaney says the proposal amounts to a call for secession from the U.S. But national divorce is neither legal nor possible in this law-abiding country. That’s what the Civil War settled. So Greene, a right-wing extremist, is really proposing the impossible.

In her view, the Blue states, those under Democratic (though she insists on “Democrat”) control, are imposing their woke will on the rest of the country. Everything from Social Security to environmental protection are part of a Democratic plot to replace freedom with socialism in her view.

Because the country is so closely divided, she wants to stop the Democrats by political separation, which would prevent them forcing their policies on Red states. The barrier would be high. If a Blue stater moved into a Red state, they would be banned from voting for five years. The same would have to be true in the other direction.

Her proposal has historical roots that have been torn out. The original American deal was based on a compromise about slavery. The U.S. accepted both slave and free states, and the choice was left to each state.

At first, there was an even balance. But free states would outnumber slave states, which worried that a national majority would end the practice. So they wanted to pick up and move out: national divorce. President Lincoln proposed to guarantee their system even if it could not extend elsewhere. But the slave states did not trust him and, as Lincoln lamented, “the war came.”

When the dust settled, slavery ended. The victors amended the Constitution to ensure that the federal government would gain much greater control of the states. Congressional majorities, formed by either side, could make laws that applied to all states. That’s what Greene does not like – majority rule.

The U.S. was built on an ingenious system of government. It would produce the world’s first functional federation with power shared between the national authority and the states that had created it. The combination would produce a great world power, while keeping governments that were close to the people. This was the second great compromise that made America.

Over time, the powers of the federal government grew. The Great Depression of the 1930s was an economic catastrophe that had to be met on a national level after it was shown that the states and private business failed to resolve it. New institutions and policies were developed for modern times.

In the decades of prosperity that have followed, the original opponents of federal action, mainly the Republicans, have come to chafe under those institutions and policies. In effect, they would turn back the clock. In Greene’s theory, states ought to be able to opt out.

The system has been based on the belief that future political differences would be resolved through new compromises. But increased equal treatment of African Americans, culminating in the election of Barack Obama as president, after the deep division caused by the Vietnam War, led to hostility to government in the Red states met by self-righteousness in the Blue states.

For the system to work requires both sides to be willing to compromise. In some communities and in some states, that was possible. But in Washington, the sides hardened. Compromise has become so rare that what should have been a common practice became a rare achievement. Members seldom negotiate; they often bloviate.

Compromise has been defined as a deal under which each side is equally unhappy. It’s based on the concept of “win a few, lose a few.”

But when each side believes in “winner takes all,” compromise is impossible. This fact has been brought home by the belief that when the GOP took control of the House this January, the possibility for action by a divided Congress virtually ended.

Greene, a dangerous partisan, sees no hope for cooperation. For her, the Democrats are simply bad guys, out to crush freedom in the name of big government. Just free the Red states from federal control and they’ll be able to preserve their ways.

But “divorce” would not stop there. Red states could continue to confront blue states. For example, the conservative Supreme Court ruled that abortion policy should be left entirely to the states, as Greene proposes. Now, conservatives seek a national judicial ban on a long-used abortion medication, even halting its use in states opting to allow abortions.

Utah’s GOP Gov. Spencer Cox has an answer to Greene: "We don’t need a divorce; we need marriage counseling."

Has Putin's nuclear treaty move increased danger?

Gordon L. Weil

The Ukraine war came home to Americans when Putin quit Russia’s last nuclear arms control agreement with the U.S.  But the potentially renewed threat of nuclear confrontation, part of the Cold War between the U.S. and the Soviet Union, has been mostly ignored.   

To understand the new situation, I interviewed John Holum, former U.S. Under-Secretary of State responsible for arms control in the Clinton Administration, for an expert analysis.  Here are key points from that interview.

Weil: How important is Putin’s move to suspend the New START nuclear treaty?

Holum: There’s no way to know.  It could be purely Ukraine related, a way to add leverage.  The practical significance of this step in isolation is not great, because there haven’t been inspections since 2020 due to Covid and subsequently we were prepared to renew the inspections and he balked because of Ukraine. If it’s a change in nuclear doctrine, that would be a huge deal.  We have to treat it that way until we know for sure.

W: Should we be more concerned?

H: Yes, almost all the [arms control] treaties we were dealing with are gone.  The Bush Administration withdrew from the Anti-Ballistic Missile Treaty.  Trump pulled out of the Intermediate Nuclear Forces Agreement and Open Skies Treaty. In invading Ukraine, Putin violated an agreement under which Ukraine gave up their nuclear weapons in exchange for an agreement by Russia to respect their territorial integrity.  Previous strategic arms control agreements have expired.  Now Russia is saying we’re going to abandon the last remaining one with the U.S. All that’s left are multi-country agreements. What has been carefully constructed going back to the Eisenhower Administration (1953-61) will be gone.

W: What about Russia?

H: It’s a pretty foolish step on Putin’s part. The Russian economy is one-tenth of the American economy to say nothing of Europe.  Many think the Soviet Union collapsed because it couldn’t keep up in the arms race.  Does he really want to do that again?  And it would further cement Russia’s status as an outlaw state, equivalent to North Korea.  It may be something Putin is doing; I don’t think it’s the consensus view of Russian leadership.

W: Does this bring back something like the Cold War?

H: Yes, it does. Remember that the technology both for monitoring compliance and for destruction have advanced dramatically since those early days.  We have the potential of hypersonic weapons that would eliminate early warning times. We can monitor launching vehicles like planes and missiles, but inspections remain necessary to monitor the number of nuclear warheads.

W: Are we now living more dangerously?

H: I think we are. If this is a major change by Russia, then I think we’re in a world of trouble. We need to hope that saner heads will prevail in Russia.  I want to go back to the possibility that this may be a minor step, but we are still in trouble for the reasons I’ve mentioned.

W: Though while we must treat this move as a change in the nuclear danger, we don’t automatically get support around the world from countries who question the U.S.

H: We may think we can reverse doubts about the U.S., but we have a world that can see that Trump pulled out of an Iran nuclear deal [the U.S. ended a multi-party agreement and Iran can now have nuclear weapons] and other agreements. Once that’s happened people can think it can happen again.  After Trump, our word is less valued.

W: What should the U.S. do in the current situation?

H: Intelligence may give us a better fix on what has just happened. Regardless of what’s said, we have to respond to what’s actually being done. When Putin threatens the use of tactical nuclear weapons, you have to take that seriously. You have to be planning now how to deal with it. If Russian doctrine is changing, we have to begin by rebuilding faith in nuclear nonproliferation with all nuclear weapon states agreeing to negotiate in good faith to reduce and then eliminate their arsenals. Preventing a weapons build-up is in Russia’s interest. By walking away from an agreement, Russia is rejecting that bargain, so the global community should join in the response.

We should, however, be wary of getting back into a reflexive arms race.  Instead of a tit-for-tat reaction, we should always determine whether our forces are sufficient to maintain an unquestioned deterrent. [Interview ends.]

After my interview with Holum, the Russian president seemed to be having second thoughts about his rash move.  But Holum’s worries deserve priority attention and U.S. readiness to deal with an irresponsible outburst  from the world’s second nuclear power.

American leaders need to take the situation seriously and not see Putin’s move as only an empty threat.   The world just became a more dangerous place.

  

Social Security brings clash on government's role

Gordon L. Weil

“Love Me or Leave Me.”

The title of that old hit movie could be attached to that old hit government program – Social Security.

Most Democrats, who invented it, love it.  Some Republicans, conflicted about it, would leave it and replace it with individual investing.  Both understand that, well past the usual retirement age, it needs updating.

Democrats see it as a major federal program on which tens of millions depend. In their view, touching any key aspect of the single most costly federal program could be politically fatal.  Republicans, believing that increasing taxes is never a good idea, even to allow it to survive, would replace it.

Democrats and Republicans agree that it will run out of money to maintain benefits; Democrats want to raise taxes and Republicans want to cut benefits. 

For Democrats, Social Security is the most successful and enduring part of President Franklin D. Roosevelt’s New Deal.  It assures older Americans of at least some support in meeting their living costs when they retire.

Originally, it was not expected to grow to its current size.  Though all workers and employers would contribute to it, there would be relatively few beneficiaries.  The retirement age was set at 65, higher than normal life expectancy in the 1930s when it began.  The population would grow and the accumulated funds and taxes on new workers would cover the cost.

But medical science extended the lifespan enough to produce many recipients.  The aging population began to reveal that contributing workers would decrease while retirees increased. It became evident that Social Security would not support itself out of the payroll tax.  Politicians and voters kept avoiding the inevitable shortfall, but it kept coming.

Making the issue more obvious resulted from rolling it into the federal budget process rather than keeping it apart from other programs.  At the time, though no money moved, it made the deficit budget appear to be balanced.  Now, it makes the deficit even worse.

Here’s how the federal budget looks.  More than half of outlays go to “mandatory” programs like Social Security, Medicare and Medicaid.  The rest goes to “discretionary” programs like defense and all other programs.  Income comes mainly from individual and corporate income taxes plus payroll taxes.  In coming years, payroll taxes and reserves won’t cover mandatory programs.

Only two tools are available to fix the mismatch – raise taxes or cut spending – as they apply to mandatory programs. They must be used independently or in a mix.

The essence of Democratic proposals is that payroll taxes should be raised.  The most obvious method would be to lift the cap on earnings subject to the payroll tax, making it possible to collect much more from the wealthiest people.  Beyond that increase, income taxes on the rich should be increased in ways that their schemes cannot dodge.

Not only would those increases solve the cost-revenue mismatch, but they could support expansion of Social Security.  The country would admit what is already becoming true: Social Security is a national retirement plan.  Private employers would continue with their own plans, encouraged by the tax laws and to be used to recruit employees.

But financing Social Security by income taxes would virtually ensure that it would become as permanent a part of federal spending as defense.  As in other countries with similar programs, the tax burden could be expected to be heavier.

That’s what worries the GOP.  Money that goes to taxes is money that is denied to profits and investment. That shift could change the American economy.  Republican leaders seek ways to reduce payouts by raising the retirement age.  They also want older people to invest in the private market and use returns there to replace government payments.

In effect, under the Republican approach, older Americans will work longer and take on more risk, though many would avoid higher taxes needed to keep traditional Social Security solvent.  Some Republicans dislike big government, so shifting retirement from a government program to encouraging private investment would meet their concerns.

Congress and the country face a difficult decision on Social Security and other mandatory programs.  Until now, Congress has avoided any serious attempt to resolve the issue.  Appointing an expert commission, as some propose, would just be kicking the can down the road.

While the decision is difficult, the choice is not.  Voters will ultimately have to decide between bigger government to maintain and possibly expand Social Security or giving individuals more of a required role in managing their own retirements.

In a broader sense, this is the essence of the national political debate between the two parties and in a divided electorate.  Is there a common need justifying a greater role for government or is government an uncontrolled force that seeks to deprive us of personal choice?

It’s a debate worth having and one we must have.

 

On his birthday, George Washington attacked: racist or woke?

 

Gordon L. Weil

Was George Washington woke?

When I write my annual tribute to America’s great leader as his birthday is celebrated, he has come under attack from critics who find he was not woke enough.  He was a slave owner. 

That view overlooks much of his exceptional life.  Even by today’s understanding, Washington could qualify for being called woke, though it might not have mattered to him.

“Woke” as a label grows out of an effort to get people to accept the belief that the legacy of slavery remains present in virtually every part of American political and economic life. This belief is about “systemic racism” and the academic study of “critical race theory.”

The term “woke” does not mean the same thing to everybody.

For some, it is used as an accusation against leaders who have developed and benefitted from the American political system and economy.  They are charged with having abused their dominant position at the expense of slaves and their descendents.  The accusation goes back in history to revered leaders.

Washington is attacked for having excluded Africans from the Army in the Revolutionary War.  He owned slaves and sought the recapture of escapees throughout most of his life.  He would split up Black families.  He does not deserve our respect, the critics claim.

As a Virginian, he lived the life of his times.  The criticism of him assumes he should have exercised the wisdom of our times.  His actions anger his critics, leading them to ignore how unusual he was for his times.

They choose to overlook how his life developed.  As commanding general, he changed his policy and Blacks entered the Army, including 5,000 who saw combat for the American side.  That act was exceptional.  Only at the end of World War II were Black soldiers assigned front-line combat roles.  A friend of Washington’s reported that he resolved as president to support the North if the country split apart over slavery. 

He mandated that his slaves would be freed upon the death of his wife, but she freed them soon after his passing.  The U.S. did not abolish slavery until almost 70 years later and only after a raging Civil War.

With anti-Semitism growing in recent years, he assured the Jewish congregation of Newport, Rhode Island, of their equality with other citizens.  He understood that Jews had provided loyal support for the Revolutionary War.

Washington’s life shows “woke” is absurd when it would rewrite history by trying to erase people and their acts.  We learn from history.  What worked and what didn’t work?  How was progress achieved?  Did people gain mainly by exploiting other people?  There’s a record with answers showing success and failure. Both are worth understanding.

The Black Lives Matter movement is an expression of the effort to raise awareness of continued injustice in American society.  The shocking killing of Blacks who are alleged by police to have committed minor offenses fuels frustration and anger.  The “All Lives Matter” response is both true and intentionally misleading.

The BLM movement is meant to get people to understand that equal justice remains a goal, not an achievement.  It could focus more on where George Washington ended than on where he started from.

‘Woke” has become a negative word for some people.  They are not responsible for slavery, and they resent being accused of being its unconscious beneficiaries. They reject complicating their lives to deal with guilt they do not feel but sense could be imposed on them to pay reparations.

Of course, some people believe in their own racial superiority. To them, opposing “woke” may be a barely disguised way of expressing their discredited opinions. They see critical race theory as a threat.  To them, the election of Barack Obama was an affront, not a milestone.

Yet there are disadvantaged and deprived people in society, and it is fair to draw attention to their condition. “Woke” is an old word and it means to awaken.  It’s used to make people aware of the need to help the less fortunate so the promise of equal opportunity can be realized.

Today, right-wing Republicans have attacked “woke” as a way of attacking government’s role in helping poor and middle-income people improve their lives.  They blindly ignore how much government has helped them to attain their positions.  They often defend a past that cannot survive in a changing world.

George Washington provided a good example.  Like everybody else, he was not perfect.  He exploited others. But he did not cling to the unjust, old ways.  As a good general and an excellent statesman, he moved the country beyond its colonial origins in directions that could lead to greatness.  That looks easier now than it was then.

Washington should be remembered not only as a leader but for his ability to learn and change.    

Balloon: China’s dangerous mistake

Gordon L. Weil

Here’s a phone call that never took place.

“Mr. Secretary of State, this is the Ambassador of China.  I call to alert you that China has lost control of a weather balloon that may head toward American airspace, and we are trying to get it under control. We would appreciate your cooperation and understanding.”

That’s the kind of call one friendly country would make to another. The fact that such a call was not made and China was livid about the balloon being shot down over U.S. territory proves that it was engaged in spying.

Carl von Clausewitz, the great German military strategist, wrote: “War is a continuation of politics (policy) by another means.”  Today, it is common to talk about “competition” between the U.S. and China.  It is fair to conclude that competition is war by another means.  The balloon was a bullet in that war.

The balloon was a major mistake.  The Chinese failed to understand that an incursion on U.S. territory is unrivaled in its effect on the American people.  The threat stirs widely shared emotions, beyond reasonable concern, like the 1941 Pearl Harbor or 9/11 attacks.

Xi Jinping, China’s boss, believes that his country’s version of Communism is superior to American-style democracy. China attempts to gain power in the Pacific, the Middle East and Africa, financed by hard currency earned from manufacturing for the U.S. and European markets.  China also directly harasses and threatens the U.S. military in the air and at sea.

The U.S. has been slow to respond to this “competition.” It has finally gotten around to opening an embassy in the Solomon Islands, which it had liberated in World War II, but moved only after China had established a firm foothold there.  China built artificial, heavily armed islands in the South China Sea before the U.S. fleet showed up in force.

Other countries have begun to take notice of the U.S.-China situation.  Japan, South Korea, the Philippines, and Australia are toughening their stance toward China.  Even Mexico has drawn closer to the U.S., perhaps partly in hopes of replacing some of the Chinese exports. Europe has mostly chosen to follow the American lead.

At the same time, China has been helping transform Russia from a major power into a satellite, heavily dependent on it.  While it has taken on the aura of neutrality in the Ukraine war, it helps Russia by buying its oil and providing military technology.

Two blocs are clearly emerging, one led by the U.S. and one by China.  The U.S. connects NATO, which it dominates, with Pacific Rim allies.  This group includes the world’s leading economies and growing military forces. 

Facing them is China, which also boosts its military.  Linked to it are Russia, Iran, and Belarus.  The central issue between the two blocs, as Xi sees it, is whether governments under popular control can produce results as effectively as authoritarian regimes.  China seeks to make other countries economically dependent on it through its Belt and Road initiative.

The United Nations in which the U.S., China, Russia, the U.K. and France were to join in maintaining world peace is a distant memory. These nations have proven unwilling to cede any real military powers to an international organization.

Meanwhile, much of the rest of the world tries to exploit the situation by taking advantage of the supposed competition.  Turkey is the prime example.  Xi has made a major visit to Saudi Arabia.  This month, China, Russia and South Africa are holding joint naval exercises.

The outlook is for a prolonged conflict, though not directly military, between the U.S. and China. In the lengthy Cold War, the Soviet Union and the U.S. engaged in saber-rattling.  Today’s version of near-war is not as likely to involve armed threats, though they are possible.  The balloon shows surprises can happen.

The U.S. cannot rely heavily on the non-governmental outreach of American investment and commerce to carry the burden of meeting the Chinese challenge in developing countries.  Adequate and appropriate armed forces and an active foreign policy are required, not a new version of isolationism. 

To be effective, American policy must focus on selling fewer sensitive electronics to China and Russia and buying consumer products in other countries, denying dollars to Xi.  Such measures can reduce U.S. exports and increase prices.  No war, even one packaged as mere “competition,” comes without a cost.  And U.S. election integrity should be defended.

At the same time, the U.S. and China must talk with one another.  Diplomatic contacts can provide helpful intelligence.  Secretary of State Antony Blinken was right to cancel his trip to China, but he should find a way to meet soon with its leaders.  If there is any chance of improved relations, it depends as much on continued contact as on continued readiness.  

Murdaugh trial highlights lawyer's role; poor need counsel as good

 

Gordon L. Weil

The start of a sensational murder trial was almost lost in an avalanche of last week’s news from Memphis to Moscow.  Alex Murdaugh, a prominent South Carolina lawyer, is standing trial for the murder of his wife and one of his sons. 

Facing charges of stealing large sums from clients and under investigation in connection with another suspicious death, Murdaugh is alleged to have sought to make himself more sympathetic by eliciting pity after the two murders.  He may have even tried to have himself killed or at least have it look that way.

There are no witnesses to the murders.  The state has collected circumstantial evidence, and believes it has a strong case.  Murdaugh has hired an experienced and respected lawyer to represent him.  In a case lacking witness testimony, the outcome of the trial depends heavily on the ability of the state’s prosecutor and his defense lawyer to influence the jury.

The case highlights a key element of the criminal justice system.  It helps to have money. Murdaugh has been able to hire a lawyer who could put on the best possible defense.  He knows his way around the courts and is familiar with the ways of both the judge and the prosecutor.  His experience and reputation should help Murdaugh.

If Murdaugh could not have afforded his high-priced counsel, South Carolina would have to provide him with a defense attorney.  South Carolina has a public defender system and Murdaugh would have been represented by a professional defender, who is a state employee just like the prosecutor. 

This system goes back to the Sixth Amendment of the Constitution, which says that all criminal defendants have the right to a lawyer.  While that rule originally applied to the federal government, the Fourteenth Amendment imposed that same obligation on the states.

It was not until 1963 that the Supreme Court ruled this obligation applied to any criminal case from murder on down.  Almost any police procedural television crime show includes an officer reciting the notice that resulted from that case: “You have the right to an attorney.  If you cannot afford an attorney, one will be provided for you.”

California lawyer Clara Shortridge Foltz, one of the first woman attorneys in the U.S., is both historic and unknown.  In 1893, she delivered a landmark speech at the Chicago World’s Fair calling for the creation of public defenders.  She is considered the founder of the idea of professional defenders.

“Connected with the court is a public prosecutor, selected for his skill in securing convictions, strong of physique, alert of mind, learned in the law, experienced in practice ...,” she said. “[B]efore him sits a plastic judge with large discretion....”   Outspoken, she was.

She observed that defendants who plead poverty receive appointed counsel.  However, “the rule is that court appointees are wholly unequal to the public officers with whom they are to cope,” she said. Her solution? “For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund.”

In the end, lawyer Foltz’s proposal has brought results.  There are over 90 Public Defender offices for federal cases.  By law, their lawyers are paid like those in the U.S. Attorneys’ offices.  They have been rated as effective advocates.

States have public defender offices, sometimes administered through counties.  Many supplement the state employees with contract attorneys who may handle certain types of cases.  Panels of such contract counsel are established in advance, and they are often paid at comparable rates.

The state offices provide professional defense counsel that Foltz would have called “learned in the law, experienced in practice.”  Contract counsel often must demonstrate their expertise.  Together with the federal defenders, a national system for providing legal defense to the indigent has been developed since 1963.

Maine is the last state to provide professional public defenders to poor criminal defendants. 

Though Maine’s finances could support public defenders, it has customarily relied on attorney case hires that fall below the state’s need.  Governor Janet Mills has suggested using new law school graduates, not necessarily “experienced in practice” and lacking full staff support.  Their part-time pay is likely to amount to less than the salaries of prosecutors.  

Though Maine has recently approved five public defenders for rural areas, it continues to rely heavily on outside lawyers.  In other states, outside lawyers supplement experienced, full-time professional staffs. 

The Maine branch of the American Civil Liberties Union has brought a class action suit against the state, attempting to get a true public defender system off the ground.  When this happens, as seems inevitable, the constitutional promise in the Bill of Rights will have been kept all across the country.   Disclosure: I am a financial contributor to the ACLU case.