[This review was published in the Fall 2014 issue of The Journal of Social, Political and Economic Studies, pp. 363-376.]
A Fighting Chance
Metropolitan Books, 2014
Elizabeth Warren, now a United States Senator from Massachusetts, has recently come on the scene in the United States like a bright morning star, rising to national prominence through her work overseeing the financial bailout and first campaigning for, and then helping set up, the new Consumer Financial Protection Bureau. What especially captured the public’s imagination as she first came to public attention, it would seem, was her austere academic aura of learned competence, a persona acquired through years of teaching at leading law schools, most recently at Harvard.
A Fighting Chance is a memoir of her life so far, although with little attention to the couple of years she has now served in the Senate. Personably written, it provides an easily readable window into her thinking and politics. The book will no doubt help establish her place in American life.
This reviewer first became aware of Warren while reading the commentaries on the financial crisis written by Sheila Bair and Neil Barofsky, both of which books have been reviewed in these pages.(1) Bair was head of the Federal Deposit Insurance Corporation, and Barofsky the Special Inspector General in charge of oversight of the bank bailout. Each of them saw Warren as a kindred spirit who, as chair of the Congressional Oversight Panel that was also keeping an eye on the bailout, shared their skepticism about the rather unconditional help being given to the big banks. Together, theirs has been what Secretary of the Treasury Timothy Geithner would criticize as a “populist” approach to handling the financial crisis. From what Bair and Barofsky had to say, we gained a strongly favorable impression of Warren both for her intellectual quality and her fighting spirit.
It may have been inevitable, then, that the familiarity gained by reading A Fighting Chance would displace her from that pedestal. Although most of the book’s readers will probably find their view of her enhanced, for reasons we will explain this reviewer now sees Warren in a diminished light. To understand her, one must see where she fits within the complexities of the present American social, political and ideological scene. One might say “Warren is a woman of her generation.” It will help to see just what that implies. A reading of A Fighting Chance shows that her mind is neither as expansive nor as thoughtful as we had believed. We would explore this in a vacuum, however, if we did not first see what Warren tells us about her life, views and politics.
Her education, teaching career, and political involvement. She was born in 1949, and she and her three brothers grew up in Oklahoma in a family of modest income. Warren says she “hated high school,” but that didn’t prevent her from skipping a grade and excelling in debate (she and her partner won the Oklahoma state debate championship). We aren’t told much about her academic performance, but know that she won a debate scholarship, “a full scholarship and a federal student loan,” to prestigious George Washington University. Her education there was interrupted when she married at 19. After dropping out of school for a time, she finished college at the University of Houston before going on to Rutgers Law School, from which she received her law degree in 1976.
Although she hung out a shingle for a brief time as a sole practitioner, she was soon asked to teach part-time at the Rutgers Law School from which she had graduated. In 1978 she accepted a “full-time, tenure track teaching job” at the University of Houston Law School. The next step, after a divorce and remarriage, was to the law school at the University of Texas in Austin, where her new husband was also a law professor. It was there that she began her long-term interest in bankruptcy law, studying especially the human dimension of who takes bankruptcy and why. Her teaching career continued on its peripatetic path when in 1987 Warren and her husband became law professors at the University of Pennsylvania. It wasn’t long, though, before Harvard Law School, in 1992, recruited her and her husband to teach, although she and not he was granted a permanent professorship there the next year. He returned to Penn until Harvard had him join her on its law faculty in 2005. In the course of her academic career, she has co-authored four books relating to the economic condition of the American middle class.
Warren’s activity in politics began in 1995 when she became an advisor to President Clinton’s National Bankruptcy Review Commission. When TARP (2), the large-bank bailout law, called for a five-person Congressional Oversight Panel, Warren was named to it and elected its chairman. She stayed with the Panel until September 2010, at which time she took the job of setting up the new Consumer Financial Protection Bureau, for which she had long campaigned. Because of her effort there and as a critic of the bailout, she had become a lightning-rod figure, too “controversial” for President Obama to find it politic to name her the permanent head of the Bureau, and this made her available for the next big step: election to the United States Senate from Massachusetts in 2012.
Her political, ideological orientation. Until recent years, the American Left has hardly been a champion of “the middle class,” from which it has been deeply alienated for over a century and a half. It would be superficial to think of it as the mainstream’s advocate even today, since there is so much that it supports that undercuts it (such as the on-going displacement of the erstwhile American population with many millions of people from the Third World). When Elizabeth Warren, however, who, as we will see, in all other ways seems to embrace the premises of the Left, fights on behalf of “a middle class under attack” against “a game that is rigged on the side of the rich and powerful,” she is in effect expanding the Left’s traditional championing of “the little guy” and the declasse by embracing a broad middle class constituency. Since so many members of the American Right have increasingly taken on a persona as special advocates for precisely “the rich and powerful,” a significant ideological shift may be occurring, bringing much of the Left over toward the mainstream. It will be interesting to see whether that develops. (To point this out is not intended to obscure the fact that neither the Left per se nor the Right actually govern the United States; that is done by the broad “establishment” that, among other things, defines what is “politically correct” and that tags along with the Left in rather obedient compliance, but that has a number of other ingredients than just the ideological Left. We will revisit this latter in another connection.)
Before we recount the details of Warren’s ideologically ambiguous stance against “the rich and the powerful,” however, let us notice the ways in which she has found a comfortable place within the American Left. The political leaders with whom she has worked most compatibly have been the late Senator Ted Kennedy, and Senators Richard Durbin, Charles Schumer, Russell Feingold and Paul Wellstone. She identifies strongly with the Democratic Party and President Obama. (Her loyalty to Obama is evident when she at no point holds him responsible for having had Timothy Geithner as his Secretary of the Treasury even though she is sharply critical of multiple facets of Geithner’s handling of the financial crisis and even though addressing that crisis has been one of the more important tasks of the administration.) Warren’s attitude on most issues is conventionally “liberal”: She stakes out a certain position in the American “culture war” when she asks “what difference would it make if I were a lesbian?,” while pointing out that she has herself twice been married and is a mother; she accepts the concern over “climate change”; she doesn’t question the counter-factual notion that “the little guys” pay the taxes; she joins the Left’s hue and cry about “Republican voter suppression,” criticizing the measures taken to prevent non-citizens from voting; and although she writes that she doesn’t make “personal attacks,” she accepts the view, taken generally by those who demand “politically correct” thinking, that those who disagree are necessarily beyond the pale. A good example of the latter comes when Warren voices her support for the alarm that was sounded when a congressman referred to something as “not legitimate rape.” It would seem to us that the clamor was transparently demagogic, premised on the assertion that the congressman was saying that some rape is “legitimate,” when clearly he meant to distinguish between rape and false (and hence “illegitimate”) allegations of rape. To peg him as someone who supports rape was, in effect, to demonize him.
Warren’s joining the Left on this incident was consistent with her overall identification with ideological feminism, even though that is not a major emphasis in her book. This found political expression when she won her Senate seat by a twenty-point margin in the women’s vote. Along with “the people,” she credits “the LGBT [Lesbian, Gay, Bisexual and Transgender] community,” “black ministers,” “Latino activists,” and “Asian leaders” for her victory. Here, we see that her political constituency still consisted largely of the customary unassimilated or disaffected groups that have so long been affiliated with the Left, and this needs to be taken into consideration in connection with our thought that perhaps there is a move toward including the middle class as a constituency. There are incongruities in the mixture.
Warren expresses solidarity with other women running for office, although we can justifiably assume that this gender affinity is not extended to conservative women such as Sarah Palin. “When a woman runs, she makes it easier for the next woman to run, and that’s how we’ll win.” More than once, she voices dismay over being treated differently as a woman, such as when she “hates the question” of “what is it like to run as a woman?”
Warren’s fight against “a system rigged in favor of the rich and powerful.” Most specifically, her career has centered on issues of consumer bankruptcy, oversight of the bank bailout, and establishing an agency for consumer financial protection. What might be called her “populist” approach to these things is predicated on her broader perception of the American political and social scene, a perception she shares with many people on both the Left and Right. “Today the game is deliberately rigged… armies of lobbyists… billion-dollar loopholes in the tax system… Too many people in Washington were fighting on the side of the rich and powerful… There was a long tradition of executives and regulators moving back and forth between government and private sector jobs.” When the push was on to revise the bankruptcy law, which over her opposition led to the new statute in 2005, she saw that “underneath it was a clash about whether our government exists to serve giant banks or struggling families.” In all, she says, “America’s middle class is under attack.” She observes that in the past “thirty years… the middle class has been turned upside down.” “Wages were flat.”
When she ran for the Senate, her campaign made it known that she “had been an outspoken critic of the bank bailout and its blank check to Wall Street” and that “she’s worked hard to stop Wall Street from ripping off middle class families.” As we have seen, she chaired the Congressional Oversight Panel. What were her criticisms?:
. That although “tens of billions of dollars started flowing to the giant banks… that didn’t keep credit flowing to the small businesses, and… at the same time, the tide of foreclosures just kept rising.” She felt that “the banks could have been required to help meet certain public aims, such as reduced foreclosures and increased lending to small businesses.”
. That “some put the money in their vaults… Others used the money to buy other banks or make other acquisitions.”
. That when the Treasury Department bought banks’ stock, it “overpaid – and not just by a little… Every time Treasury spent $100, it received assets worth just $66. Treasury was subsidizing these banks, pure and simple. Treasury had said one thing in public and then had done something very different in private.” She points out that eventually the government recovered its money, but notes that “at the time those deals were struck, no one knew what the future held, and the risks were all on the taxpayers.”
. That every creditor of AIG received 100% repayment, among them Goldman Sachs, which as a creditor received $12.9 billion of the AIG bailouts. “And it wasn’t just AIG. TARP sent truckloads of cash to the banks, but… [there were] no haircuts for the creditors, no CEO firings, no promises to abandon risky trading.” Warren called it a “no-strings-attached bailout.”
. That Neil Barofsky, the Special Inspector General of TARP, strongly criticized the Treasury Department for not insisting that AIG renegotiate its contracts with its employees rather than pay them “huge bonuses.” The insistence, he said, could have come as a condition to AIG’s receiving an extra $30 billion beyond the initial $170 billion. Warren quotes Barofsky’s comments about the executive compensation that was paid generally, and not just by AIG, during the bailout: Barofsky spoke of “the absolute fetishization of the lords of high finance.”
In these criticisms, we can see several ways by which, in Warren’s view, the bailouts should have been conducted more in the public interest. Her criticism goes beyond that, however. Several commentators on the financial crisis have argued that the government’s abundant help should have gone to “the main economy” rather than to the large banks. Along these lines, she supported bailing out the auto companies. She says it was “the real ‘could haves’ [the things that might have been done instead] that tore at me.” With the $700 billion, “we could have fixed our roads and bridges and public transportation. We could have launched universal preschool and made state universities affordable again. We could have doubled our federal investments in medical research and scientific research for the next twenty years.” Although large banks were rescued, “170,000 small businesses closed in the United States between 2008 and 2010.” And “more of Treasury’s efforts should have been channeled toward dealing with the crisis directly by addressing home mortgage foreclosures.”
It is worth observing that this disagreement over who should have been bailed out reveals two different lines of thought precisely within the Keynesian school. Each favored pouring hundreds of billions of dollars into the faltering financial/economic system. The argument was not over whether government should step in, but over how it should do so and who should directly benefit. It was a very different thing from the non-Keynesian “let the bottom drop out quickly so that spontaneous recovery can begin” position.
Warren doesn’t comment at length about the situation that now exists. She does note, however, that, despite so much talk about the problem of intertwined financial institutions being “Too Large to Fail,” “the largest financial institutions are now 30 percent larger than they were before the financial crisis and the five biggest banks now hold more than half of all banking assets in the United States.” Similar thoughts were voiced by Bloomberg Business Week in late July 2014 when it pointed to the three main reforms provided for in the Dodd-Frank financial reform act – increased capital requirements, the monitoring of risk-taking, and a new resolution mechanism to wind up institutions in distress – and said that, even at that late date, “regulators have yet to complete any level of this fail-safe system.” It went on to say that “Dodd-Frank provides regulators with all the powers they need… All that’s wanting is the will to use them.”
Warren’s relationship with the Secretaries of the Treasury: Paulson and Geithner. Henry Paulson was the Secretary of the Treasury under President George W. Bush, serving during the first weeks after TARP’s enactment. When Barack Obama became president on January 20, 2009, he named Timothy Geithner his Treasury Secretary. Warren, accordingly, served as chairman of the Congressional Oversight Panel (COP) briefly under Paulson. She reports that “Treasury had made it clear in our first meeting that they weren’t planning to cooperate with the COP watchdog.” The Panel submitted some substantive questions to Paulson, who just “blew them off.” Warren ran into the same thing from Geithner. When the banks were to be subjected to “stress tests,” the COP wanted to know enough to evaluate them, but were blocked: “the Fed [Federal Reserve] and Treasury informed us that they wouldn’t let us in the clubhouse door.” So they asked again; “Answer: Nope, not a chance.” Warren stayed with the Panel for the first year and two-thirds of Obama’s presidency, and observed all of the failures of the bailout program that we enumerated earlier. Typical of what she saw was how the mortgage relief program was handled. “It was a bust,” she writes. The program “was intended to foam the runway to protect… the banks.”
Her work for consumer financial protection. Although we just saw that Bloomberg Business Week lists three other items as the key Dodd-Frank reforms, Warren would certainly add a fourth: the creation of the new federal agency to regulate consumer financial transactions of many types, including “credit cards, mortgages, student loans, payday loans and car loans.” She noted that consumer protection has been extended to “pretty much every product offered for sale” as to “basic safety,” and fought hard to see similar regulation for financial products, not in this case for physical safety but to protect consumers from abuses. The political struggle not just for the new agency but for financial reform in general ran into vigorous opposition. “According to one source,” Warren writes, “the financial industry was spending more than $1 million a day on lobbying and campaign contributions during their drive to kill any meaningful financial reform” (her emphasis). As we have seen, politics prevented her from being named the director of the Consumer Financial Protection Bureau (CFPB), but before running for the Senate she was the person put in place to set it up.
Her career in the law schools focused on consumer finance, so it isn’t surprising that she did not see that a great void still exists in consumer protection. Abuses abound in countless consumer transactions that are not themselves primarily financial – such things as apartment leasing, home sales and purchases, home construction and repair, automobile and homeowner’s insurance, car repair, and so on ad infinitum. One thing the CFPB is working on is model contracts. This reviewer has long advocated what he calls “paradigm contracts” that would be fair to both parties and that would be required in transactions of any given type with only such conditions and exceptions as are brought conspicuously to the consumer’s attention. Perhaps the work of the CRPB on consumer financial transactions will eventually pave the way to this broader consumer protection. The removal of abuses – so egregiously apparent in this reviewer’s experience as a lawyer – would constitute part of the legal framework that facilitates rather than impedes the operation of a market economy.
Other observations about Warren and A Fighting Chance. Additional thoughts of some importance remain to be mentioned.
As we have seen, there is a sharp and often bitter disagreement between those who thought it was imperative to save the big financial institutions and those who, like Warren, believe the crisis should have been met by assistance to “the main economy.” What is missing from the memoirs of the main figures is a scholarly, intellectual analysis of what specifically the consequences would have been of letting AIG and the other huge institutions fail. Policy-makers who struggled through the succession of threatened bank failures were of the opinion that each bank’s collapse would mean economic, social catastrophe. Was that correct? If it was, could the catastrophe have been prevented by assistance directly to the other components of the economy? It’s amazing that so many intelligent people can stake out a position on one side or the other without the slightest curiosity to go deeper. Almost never are any of the country’s or the world’s leading economists cited. Maybe each policy-maker subsumes such a body of knowledge, thinking it unnecessary to share it with readers.
One of the things that “displaced” Warren from the pedestal on which this reviewer had originally seen her was her intellectual shallowness on this and a number of other matters. She has a fairly simple view of American society that divides people into what, for want of better terms, we might call “the good guys” versus “the bad guys.” We would that the world were so simple, and that all that would be needed would be to go after the abusers! What we see, instead, is a vast interchange between abusers and abused, so that it is most accurate to speak, as Ralph Waldo Emerson did, of “abuses in which all connive.” The person who may be bamboozled into signing an unconscionable apartment lease is very likely the same person who goes to the office and spends the day sending out nuisance robocalls; and the banker who is cheated on the cost of a home repair may well spend the day securitizing unsound mortgages for sale to unwitting investors. When society has descended to a welter of self-serving cupidity, there is no simple solution by identifying any finite group.
When Warren complains that “the government has been hijacked by the rich and the powerful,” she again simplifies things too greatly. All that she points out about the hijacking is true in itself, but this obscures for her a realization that the United States is governed by a much larger incubus that merely includes “the rich and powerful.” The “establishment” we mentioned earlier consists of academia, the principal media, Hollywood, the large corporations and financial institutions, the legal profession, ethnic activists, teachers and other centers of influence (all, of course, without including many individuals who don’t go along). It is this that defines which opinions are reputable and which are not. This gives rise to a giant fog of conventional thinking about personalities, historical events, heroes and villains, and much else. What is “conventional” among “the people whose opinions count” in the United States today accepts the Left’s basic mindscape. In our experience, most college educated Americans (many of whom never read a serious book after leaving college) take pride in identifying with this worldview. An enormous body of Americans do not, but their thoughts are marginalized and simply don’t count. The “establishment” as we have described it is not at odds with or exclusive of “the rich and powerful,” but it is much more than that.
One of the major ideological differences between the Left and others has centered on what to expect of people. Are most people passive receptors, trapped by circumstances, manipulatable and subject to exploitation, in which case they are in rather desperate need of help from outside sources, especially government?(3). Or do their lives offer a variety of choices and do they bring a fair amount of energy, resourcefulness and even wiliness to their lives; and, moreover, ought they to consider themselves to have a moral imperative to do so so that they can take care of themselves? For the most part, Warren sees people in the first of these ways, as when she sees that payday loans, say, “suck in people who are in a crunch.” She finds little reason to agree with a judge who writes that “I do think that it is a very important matter of personal integrity and honor not to take on obligations beyond one’s means….”
Although this difference in perspective has long created a sharp ideological dichotomy, at least two factors must be considered in evaluating it. One, as we’ve indicated, is that a “free society” of self-governing individuals is indeed well served if there is a framework of law (as well as of ethics) that will militate against abuses. Such a framework need not assume that people are incapable, but it does accept that people can be “taken advantage of” even as they seek to act prudently. Limited-government advocates, who agree with the judge about the need for personal responsibility, might well reflect more deeply than they often do about what sort of legal/ethical scaffolding best serves the individualism they favor.
The other factor is that the world is changing, heading rapidly into a system of automated technology. Even if there were no low-wage imports, off-shoring and immigration, the on-rushing non-labor-intensive technology will increasingly displace labor, leaving the large mass of people who are not suitable for high-tech jobs as an immense labor pool for which there is less and less demand. In such a setting, which is hardly any longer merely “futuristic,” the middle class atrophies. This diminishes what has been the major legitimizing feature of capitalism as we have known it, that it necessarily creates goods and services not just for the rich but for people at large. A great ambiguity intervenes: it becomes far less possible to distinguish between irresponsible ne’er-do-wells and people who, though striving to take care of themselves and their families, have been rendered economically redundant. This makes Warren’s perception of people more correct now than it has been. The solution for human redundancy, however, hardly lies in an improved legal superstructure for the market, as desirable as that is. It calls for a radical reformulation of what it takes (1) to keep the market economy humming, with its productivity and innovation; and (2) to get that production out to the people for their sustenance (and, not incidentally, to allow them to be the consumers that a market economy needs).(4)
A final observation before we conclude. As an autobiographical narrative, A Fighting Chance tells about Warren’s marriages. In doing so, it illustrates well the change that has occurred in American life in the relation of the sexes. Things have come a long way since the days when the husband was almost always the bread-winner and the wife a mother and keeper of the home. Warren says “I wanted to be a wife and mother, but I wanted to do something more.” As we’ve seen, she went to a couple of law schools and became a law professor at a series of such schools. Her first marriage, at age 19, was to Jim Warren. He accommodated her taking the professorship at the University of Houston in 1978, getting a job transfer with IBM to Houston. It wasn’t long, though, before the marriage came apart. Warren says “I thought he was right” when “he felt I had reneged on our unspoken deal that he would work and I would take care of the house and children.” Her second marriage was to Bruce Mann, and that marriage has continued to the present day because he has subordinated his life to hers. He “left his job at the University of Connecticut” to move to Houston; from there, they went to the University of Texas in Austin, but when she got the tenured position there he wound up teaching at Washington University in St. Louis, flying to their home in Texas every week. They had to live a “two-city life” again when he joined the faculty at the University of Pennsylvania and she took the Harvard Law School professorship. Then when she became employed in the Obama administration in Washington, D.C., her husband, dutifully showing true love and devotion, found himself commuting again to be with her. Perhaps the most poignant passage in the book is a short one, when she writes “thank you, sweetie.” The story of her marriages would have shocked this reviewer’s grandparents’ generation, but today simply illustrates how American society has changed. It would seem that the relation of the sexes is much more complicated than it once was, now that a young man has no idea what to expect. More and more couples aren’t marrying until they have lived together for quite some time, and this perhaps gives them some hedge against the unknowns.
We have found that even though A Fighting Chance seems like an easily readable book by an intriguing new leader, there is much to ponder about it. Elizabeth Warren may no longer be on this reviewer’s pedestal, but he looks forward to seeing where her career takes her.
Dwight D. Murphey
(1) The book by Sheila Bair was Bull By the Horns: Fighting to Save Main Street from Wall Street and Wall Street from Itself. It was the subject of a book review article in our Winter 2012 issue, pp. 533-542, which may be accessed free of charge on the website www.dwightmurphey-collectedwritings.info as Article 108 (i.e., A108). That by Barofsky, entitled Bailout: An Inside Account of How Washington Abandoned Main Street While Rescuing Wall Street, was reviewed in our Fall 2012 issue, pp. 367-375, and appears on the website as Book Review 154 (BR154).
(2) TARP is the acronym for the “Troubled Asset Relief Program.”
(3) This was the central point argued by the nineteenth century German socialist Ferdinand Lassalle. See Chapter 11 of this reviewer’s Socialist Thought, which is on the website mentioned in Endnote 1 as Book 4 (i.e., B4).
(4) Such a reformulation is discussed in detail in this reviewer’s Internet book A ‘Shared Market Economy’, available at no charge as the first item mentioned on his website identified in Endnote 1. See also Articles 95, 100 and 105 on that site. An excellent recent book on the subject is Peter Barnes’ With Liberty and Dividends for All (Berrett-Koehler Publishers, Inc., 2014).