Tomorrow is going to be the most complicated Election Night of my lifetime, rivaled only by 2000. Bush/Gore was tightly contested, and we weren’t sure for weeks who the next president would be. But by early Wednesday morning we understood what the issue was: a razor-thin Florida margin that would shift as the votes were counted and recounted.
This election probably isn’t as close as that, but it’s complicated: It’s not just what the votes are, it’s how they’ll be counted and when we’ll find out. It’s whether right-wing militias or Russian cyber attacks will disrupt the process. When Trump declares victory Tuesday night based on sketchy results, will the system have the integrity to keep counting the votes accurately?
Also, there’s much more at stake than there seemed to be in 2000, when few suspected how conservative a president Bush would be. Trump is openly running against democracy, and promising to fire more officials who insist on doing their jobs with integrity, like Anthony Fauci or FBI Director Wray. In 2000, Ralph Nader could argue that it made no difference whether Bush or Gore won. Not this time.
So today’s featured post “What Happens Tomorrow?” has more to cover than my usual Election Night preview. It should be out by 11 EST.
The weekly summary will also have some election coverage, plus the recent Trump administration corruption scandals, the Republican effort to count as few votes as possible, that strange blue-line flag that has started appearing at Trump rallies, and — oh, by the way — we set records for Covid-19 cases this week, and Louisiana had another hurricane. Remember when a hurricane would dominate the news for a week or more?
This week everybody was talking about the election
The featured post discusses my hopes and fears for Election Night.
There was a debate Thursday (transcript), which I once again was unable to make myself watch. The upshot seems to be that not much changed: Polls say Biden did better, but by a margin not much bigger than he gets in polls about how people will vote. Mostly, people liked the performance of the candidate they’re voting for anyway.
I did not see this coming: The Manchester Union Leader endorsed Biden. Maybe you have to have lived in New Hampshire to know what this means, but for decades the Union Leader WAS conservatism. It’s still a conservative paper, but I think it recognizes that its worldview has no place in a world where conservatism means Trump.
Our policy disagreements with Joe Biden are significant. Despite our endorsement of his candidacy, we expect to spend a significant portion of the next four years disagreeing with the Biden administration on our editorial pages.
But the Union Leader has bigger fish to fry than the Green New Deal.
President Trump is not always 100 percent wrong, but he is 100 percent wrong for America.
They fault him for:
His pre-pandemic deficit spending, which added 3 trillion to the debt. “The layman would expect that the best economy in history would be a time to get the fiscal house in order, pay down debt and prepare for a rainy day (or perhaps a worldwide pandemic).”
His failure to deal with Covid-19. “Mr. Trump rightly points out that the COVID-19 crisis isn’t his fault, but a true leader must own any situation that happens on their watch. We may be turning a corner with this virus, but the corner we turned is down a dark alley of record infections and deaths.”
He can only cause division at a time when the country needs unity. “America faces many challenges and needs a president to build this country up. This appears to be outside of Mr. Trump’s skill set. Building this country up sits squarely within the skill set of Joseph Biden.”
and the virus
The daily new-case numbers hit a new high Friday. The exact numbers vary depending on things like when you change over to a new day, but The Washington Post claimed 82,920 cases Friday, while The New York Times recorded 85,085. In both systems, Thursday had just missed setting the record established in July, and Saturday’s total was either just above (WaPo) or just below (NYT) Friday’s.
It’s worth noting that the first hump is probably understated, because tests were much harder to get in March/April. The weekly death totals have never again reached the April levels of around 15K. The second wave peaked in August at around 8K. Deaths tend to lag cases by about a month, and are now running a little over 6K per week. (That’s the tiny kernel of truth behind Rudy Giuliani’s outrageous statement that “People don’t die of this disease anymore.” Ignoring six thousand corpses is easier than ignoring 15 thousand corpses.)
But in addition to that time lag, it does look like fewer cases are leading to death now, as treatments gradually improve. There is still no cure, and the strategy is still to keep people alive until their own immune systems can win the battle, but doctors are getting better at it.
Amy Coney Barrett will be voted on by the Senate tonight. Republicans have the votes to confirm her, and President Trump expects to have a ceremony swearing her in almost immediately.
[T]his idea sounds simple and sensible: In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787. Period. Anything else is “judicial lawmaking.”
In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old (“35” means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn’t say “armed forces”; it explicitly says “Army” and “Navy.” Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.
So is the Air Force unconstitutional, even though it clearly fails both prongs of the “originalist” test?
They go on to explain what’s really going on with this nonsensical theory, which of course will never be applied to the Air Force or corporate free speech or any other non-original notion that serves the purposes of conservatives.
Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it.
but the Court is just one of the things that will need to be fixed
Assume for a moment that the polls are right and Biden wins the presidency. (Then go back to whatever level of uncertainty causes you to put the most effort into influencing the outcome.) American democracy will have dodged a bullet, narrowly avoiding the fate of failed or failing democracies like Russia, Turkey, Hungary, and Poland.
But in some ways we’ll be like a middle-aged heart-attack survivor: There’s no reason we can’t go on to have a robust life, but we’ll also have to make changes if we don’t want the same thing to happen again. Trump has pointed out just how fragile our system is, and how much it has depended on all the players operating with a certain amount of good faith and good will.
For example: We have emergency laws so that the country can respond to crises that play out too quickly for Congress to act. We all took for granted that no president would declare a phony emergency just to circumvent the will of Congress, as Trump did to fund his border wall.
The recent executive order extending the President’s power over government professionals (explained below) will only make this worse.
Electing Biden may stop the flood, but we will also need to repair the levees — and not just to their previous strength. This is one important area where we need to “build back better”. The next would-be autocrat might be cleverer and less buffoonish than Trump. We need a democracy that can survive that challenge too.
things like the media
One levee that badly needs repair is the press. For that issue, I recommend Vox’ recent interview with Jay Rosen. Rosen and interviewer Sean Illing discuss a propaganda tactic the Russians call the “firehose of falsehood” and Steve Bannon described as “flooding the zone with shit”: You say so many false and outrageous things that the media’s attempt to fact-check you drives the news cycle. Opposing views are pushed out of the conversation, and the argument becomes You vs. the Media.
The first Trump/Biden debate is a perfect example: No one remembers anything Biden tried to say. The whole post-debate conversation was about Trump’s outrageousness and the moderator’s inability to control him.
Trump is the first major politician to bring this tactic to the US.
[Previous presidents] would change the [fact-checked] claim to make it kind-of sort-of factual, or they would take it out of the stump speech, because they didn’t want to suffer the penalty of being described as untruthful. And this was true across parties.
Illing asks how a news outlet like The New York Times can deal with this tactic without being “seen as inherently biased by a lot of people”, and Rosen acknowledges this is impossible.
What’s actually achievable, however, is a newsroom that serves everyone in the country — Democrats and Republican — who shares with Times journalists a certain baseline reality and evidentiary standard. That’s all you can get. … If the perception of critics can shape rule-making in his newsroom, then [NYT editor Dean] Baquet has surrendered power to enemies of the Times, who will always perceive bias because it is basic to their interests to do so.
Rosen wants election coverage to become voter-centered rather than candidate-centered: What’s important isn’t the campaigns’ strategies and messages, it’s “the voters struggling to get their concerns addressed by the system”.
In the citizens agenda model, you “win” when you gain an accurate sense of what people want the campaign to be about, and when you successfully pressure the candidates to address those things people told you they want the campaign to be about.
He also wants the media to confront openly the difference between the parties, which are no longer mirror-images of each other, if they ever were.
The Republican Party has become a counter-majoritarian party. It can only win elections by making it harder to vote, and by making it harder to understand what the party is all about. The conflict with honest journalism is structural, not just a matter of broken practices or bad actors. And I believe the people who report on politics in the United States are going to have to confront that reality, whether Trump wins or loses.
If our journalists continue in the assumption that we have a normal system where there is a contest for power between roughly similar parties with different philosophies, then every day of operation they will be distorting the picture more and more.
There is apparently a new cache of “Hunter Biden emails”, with yet another dodgy story about where they came from and what they supposedly prove.
This is a different cache, one that is even more tangential to the U.S. presidential campaign and even harder to understand. In order to even make sense of the messages’ content, the reader must learn the backstories of a whole new cast of characters, not just Cooney but two other convicted fraudsters named Devon Archer and Jason Galanis; the wife of the former mayor of Moscow, Yelena Baturina; and Chris Heinz, John Kerry’s stepson, who broke away from the group; as well as their relationships, their jokes (they refer to Baturina as the “USSR woman’s shot put champion”), and the rules of the ugly world they inhabit. In order to link them to Joe Biden, you have to turn somersaults, do triple flips, and squint very hard.
… In releasing the 26,000 emails, Tyrmand and his collaborator, the Breitbart News contributor Peter Schweizer, are not bringing forth any evidence of actual lawbreaking, or an actual security threat, by either Hunter or Joe Biden. They are instead creating a miasma, an atmosphere, a foggy world in which misdeeds might have taken place, and in which corruption might have happened. They are also providing the raw material from which more elaborate stories can be constructed. The otherwise incomprehensible reference in last night’s debate to “the mayor of Moscow’s wife,” from whom Joe Biden somehow got rich, was an excellent example of how this works. A name surfaces in a large collection of data; it is detached from its context; it is then used to make an insinuation or accusation that cannot be proved; it is then forgotten, unless it gains some traction, in which case it is repeated again.
If this all sounds vaguely like a replay of the 2016 attacks on Hillary Clinton, that’s because it is.
Those messages contained no actual scandals either—only the miasma of scandal. And that was all that mattered. But her emails was an effective phrase precisely because it was so amorphous. It was an allusion to a whole world of unnamed, unknown, and, as it turned out, fictional horrors.
I got a small chance to be part of the solution this week. Lately I’ve been working as a volunteer on The Bedford Citizen, the local online newspaper of my small Boston suburb. This part of Massachusetts is heavily Democratic, to the point that the Republicans don’t field candidates for all the important offices. This year, both our state representative and our state senator are running unopposed.
One complaint I share with Jay Rosen is that the press covers politics as if it were a horse race, with all its attention directed to the back-and-forth of the campaigns, virtually ignoring the race’s impact on how the community will be governed.
Well, that kind of coverage isn’t possible for our local legislative races, because there is no horse race to cover. What to do? Here’s how I answered that question. My article is still candidate-centered, but is more about governing than politicking.
and the environment
The town of Greensburg, Kansas was all but wiped out by a tornado in 2007. Its rebuilding plan “put the green in Greensburg”, and now the town has energy-conserving buildings and a wind farm that produces more electricity than the town uses. A farmer and local businessman comments: “People assume you’re a community of hippies or some nonsense. No, it’s the responsible way to build now.”
Could the new all-electric Hummer be good for the environment? Well, no, not really. It’s a 3-ton behemoth that takes gobs of energy to manufacture and operate, no matter where that energy comes from. But Grist does its best to see the bright side.
All that said, the Hummer EV may do something kind of useful: make all-electric driving appeal to people who aren’t that into the environment. … Even if early Hummer EV owners are only those who can afford to shell out $112,000 on a massive “supertruck,” the purchase of these metal monstrosities could increase the push to install chargers, and provoke even more EV ownership down the line in decidedly non-hipster, non-environmentalist markets. … [B]uying a Hummer might be some people’s first step into an eco-friendly lifestyle. Cutting carbon emissions is, after all, kind of a choose-your-own-adventure situation. Decide to have one fewer child to fight climate change? Good on you. Avoiding all plastic to save the ocean? Go for it! Buying an electric Hummer instead of a similarly giant gas-guzzling SUV? Uh, sure.
Grist sums up the Trump administration’s climate-change record in an eight-minute video.
and you also might be interested in …
Wednesday President Trump issued an executive order that could finally bring the “Deep State” to heel. The order is fairly technical and hard to make interesting to the general public, but in essence it makes vast numbers of civil servants fireable by the President.
Any civil servants in “positions of a confidential, policy-determining, policy-making, or policy-advocating character” would be reclassified into a new Schedule F in order to guarantee that “the President have appropriate management oversight regarding this select cadre of professionals”.
The purpose of establishing the civil service was to avoid the corrupt machine politics of the 19th-century spoils system, where the federal bureaucracy turned over every time there was a new administration. This executive order undermines civil service protections, and creates vast new opportunities for corruption and autocracy.
At stake are the career professionals who have stayed loyal to the missions of their departments rather than the whims of the President — like the scientists at the CDC and FDA who have been trying to maintain the safety standards for vaccines, even though the President wants them to approve one before the election.
During the primary in September, poll-watchers in Exeter, NH stopped a 60-something woman because her t-shirt was too political for a polling place. So she took it off and voted topless.
and I have a question for you
I used to have a “This Week’s Challenge” feature to encourage comments, but I haven’t done that in a long time. Well, here’s a challenge.
A computer-security researcher in the Netherlands says he hacked Trump’s Twitter account by guessing the password “maga2020!”. He reported the security problem, and if he did any mischief at all, it was subtle. That shows way more discipline than I would have had.
So that’s this week’s challenge: If you had control of Trump’s Twitter, and figured you would probably only get one tweet out before they shut you down, what would it be?
Eight days from the end of voting, the signs are good.I know you’re still worried.
Politico sums up how this race might look to a dispassionate observer:
Trump is an unpopular incumbent saddled with a recession and an out-of-control coronavirus pandemic that has killed more than 220,000 Americans. Meanwhile Biden has only seen his favorability ratings increase over time, emerging largely unscathed from Trump’s attacks on him and his son Hunter Biden. And Biden is outspending Trump down the homestretch almost everywhere
Those strategic observations are reflected in the polls: 538’s polling average has Biden up by 9.1% nationally, with few undecided voters: 52.0%-42.9%. And yes, the Electoral College rigs the system in Trump’s favor — the only reason he’s president now is that the electors overruled the voters in 2016 — but even that looks good: For some while 538’s tipping-point state has been Pennsylvania, where they project a 5.5% Biden advantage: 52.4%-46.9%. (That’s the margin in a model that projects ahead to election day. Their who’s-leading-now polling average is a bit bigger: 50.4%-44.7% or a 5.7% margin.)
If something goes wrong in Pennsylvania, Biden has other paths to victory. He’s also currently leading in North Carolina (2.5%), Florida (2.4%), Arizona (3.0%), Iowa (1.3%), and Georgia (.9%). (The model expects his leads to go away in Iowa and Georgia, but not in the other states.) And Trump’s leads are narrow in a number of states once thought to be safe for him: Ohio (1.4%) and Texas (tied).
That’s right: If you’re being all quantitative and wonky about it (like 538 always is), Biden currently looks way more likely to win Texas than Trump does to win Pennsylvania.
Ghosts of 2016. Election Night 2016 was a trauma that Democrats may not recover from for a very long time. (I wonder if Republicans fretted this much about Eisenhower’s chances in 1952 after the Dewey debacle in 1948.) The Saturday before the election, the Princeton Election Consortium said Clinton had a 99% chance of winning. While other people’s speculations were less extreme — and Nate Silver’s election-eve estimate that Trump stood a 28% chance was probably about right; some unlikely things still had to happen, but everybody has gotten wet when there was a 28% chance of rain — few of us expected to see a President Trump.
And then it all fell apart: Florida and North Carolina early, and then Pennsylvania, Wisconsin, and Michigan.
So why couldn’t that happen again?
If you insist on a strict interpretation of could, then sure: Everything could still go wrong. But this isn’t like the horror-movie sequel where only one character remembers what happened in the original. Everyone is out there looking for signs that the polls are wrong, or that subterranean forces are shifting the election under our feet. Nobody’s finding them.
What’s different now: non-college voters. 538’s Dhrumil Mehta explains the extent to which the polls were wrong in 2016 and what has been done to correct them in 2020. Nationally, the 2016 polls were pretty accurate; they only mildly overestimated Clinton’s 2% popular vote win. Late polls in Michigan and Pennsylvania showed Trump momentum, even if they still had a small Clinton lead. Only Wisconsin was a true polling failure.
Mehta explains a mistake that has since been corrected by many pollsters: They didn’t rebalance their samples for education levels.
What is rebalancing? When you already know the demographics of the population you’re sampling, you may notice that your sample is off in some way. Suppose, for example, that the electorate in some state is 14% black, but your sample is only 10% black. So you might adjust for that by counting each sampled Black person as 1.4 people.
In 2016, polls in the upper Midwest regularly undersampled people without college degrees. They didn’t intend to do that, it just happened. But it didn’t occur to them to rebalance for education, and the result was that more non-college people — and especially non-college whites — voted than anyone expected. That was Trump’s margin of victory.
Pollsters know about that mistake now, and are taking various steps to avoid it this time around.
So Trump doesn’t have some magical ability to conjure voters out of nowhere. We know where his 2016 margin came from, and we’re looking for it but not finding it this time.
What’s different: margins. Biden’s polling leads are bigger and broader than Clinton’s were. Clinton went into the election leading in the polls by 3 or 4%. Biden’s lead is running 8-10%.
What’s different: favorability. One reason the 2016 race went south at the end was that Hillary Clinton had very high unfavorable ratings. Many of 2016’s “undecided” voters were actually people searching for an excuse to vote against her, which the last-minute Comey announcement provided. (Trump’s negatives were also high, but that’s where we see the effect of sexism: A male president you dislike is unfortunate, but we’ve all disliked a male president at one time or another. A female president you dislike, on the other hand, may seem like an unimaginable horror.)
He has emerged with more Americans viewing him favorably now than at this time last year, the opposite of the usual trajectory of a campaign and far different from the circumstances that faced Hillary Clinton in 2016.
Biden may not inspire dreams of a utopian future, but he’s hard to dislike. That’s why Trump keeps trying to run against somebody else, preferably some woman: Kamala Harris or AOC or Nancy Pelosi or Clinton again.
What’s different: the news. In 2016, Clinton’s weak spot was the suspicion of corruption. Largely that was the result of a decades-long Republican smear, and none of the so-called Clinton scandals subsequently amounted to anything. (Not even Bill Barr can find an excuse to “Lock her up!”)
But nonetheless, the final-week announcement that the FBI had found more Clinton emails and needed to examine them brought that weak spot to the fore.
The news cycle this time around is playing out very differently. The Trump tactic of insinuation-with-little-basis worked in 2016 largely because the country was doing pretty well. No urgent crises loomed that we had to picture Trump or Clinton trying to handle. “What have you got to lose?” Trump asked, and a lot of people had no compelling answer.
Right now, the country is in terrible shape, and the problems hit home every day. People worry about getting sick, they worry about their vulnerable relatives, they worry about their jobs. Nobody would ask “What have you got to lose?” now.
Trump’s weak spot is that he has completely bungled the only real crisis he’s faced: the pandemic. More than 220,000 Americans are dead on his watch, and he doesn’t seem to care. “It is what it is,” he says. We’ll have to “learn to live with it”. We should thank him because millions haven’t died.
And the news cycle is bringing that to the fore: The virus is surging precisely at the moment people are voting. There’s no way to put that out of the voters’ minds.
Election night. One more consideration that’s on everybody’s mind is what will happen on November 3. Will we actually know anything that night? Or will we be in painful suspense for days or weeks?
538 has a video where Galen Druke talks through what election night might look like, and in particular the question of whether we’ll know a winner. The upshot: Florida, North Carolina, and Arizona should count ballots fairly quickly, so we probably will know who wins those states (unless they’re very close). If Biden takes any of them, he’s going to win. If Trump takes all of them, it’s still a race, but the odds tip in Trump’s favor.
You can also play with the interactive tool Druke is using. When I do that, and give Trump FL, NC, AZ, but give the other states where Biden has sizeable leads to him, leaving only Wisconsin and Pennsylvania undecided, Biden is again favored.
So there’s a chance next Tuesday won’t be an ordeal. Or maybe it will.
For months, I’ve been resisting (more successfully some weeks than others) the urge to focus entirely on the election. I’ve especially tried not to get lost in speculating about who’s going to win, because that’s a black hole that can suck down all your brain cycles without leading to any productive action.
But now voting is well underway. This year, Election Day marks the end of the voting season, and that’s a week from tomorrow. More than a third of the expected electorate has already voted. I dropped my own ballot off at the local court house a few days ago. I feel like I’ve crossed the event horizon — not thinking about the outcome is not an option any more.
But it’s a real challenge to think about it sanely. 2016 was the kind of nightmare you don’t soon recover from. Hillary was supposed to have it in the bag, and then everything went wrong. I didn’t even entertain the thought that she might lose until about 6 in the evening, when I heard over the radio that black turnout in Cleveland was unexpectedly light.
Time hasn’t eased those wounds, because Trump pokes at them every day. The last four years have been every bit as bad as we feared, and then some. Even Bill Barr isn’t corrupt enough or subservient enough for him now. Another four years of this and we’ll have a true autocracy that he can hand off to Don Jr. or Jared or Ivanka.
So it’s hard to feel sanguine no matter how good the signs look. But all the same, they do look good. That’s what I’ll talk about in the featured post “I Want To Believe”. That should be out around 10 EDT.
In the weekly summary I’ll also cover the virus, which has surged to a new peak in daily new cases. Unlike the spring and summer surges, this fall surge is just about everywhere: all sections of the country, urban and rural alike. The Northeast is probably the safest region right now, because we got the crap scared out of us in the spring and so we’re following the guidelines better than most other places. But cases are ramping up here too.
But I’ll also tempt fate a little and start thinking about what we need to fix after Trump is gone. Even if we dodge this bullet, his administration has stress-tested our democracy and exposed a lot of flaws. (I expect this to become a major theme of the Sift after the election is safely over.) I’ll talk some about the media and the environment (which needs a lot more attention in future weeks).
Also: what’s wrong with originalism, the all-electric Hummer, hacking Trump’s Twitter, and what can happen to a Twinkie if you leave in the basement for eight years. I’ll try to get that out by noon.
When our leaders speak, their words matter. They carry weight. When our leaders meet, encourage or fraternize with domestic terrorists, they legitimize their actions and they are complicit. When they stoke and contribute to hate speech, they are complicit.
This week everybody was talking about the White House coronavirus cluster
The Trump White House is displaying its usual lack of transparency. We still don’t know exactly who’s infected, when Trump’s last negative test was, whether he had been tested before his debate with Biden (as the rules stipulated), or who White House Patient Zero is. The Washington Post tried to summarize what we do know.
There’s also a lot we don’t know about Trump’s current condition. He held his comeback rally on the White House lawn Saturday, speaking from a balcony. (Almost forgotten in the hoopla is that using the White House for rallies used to be taboo. The Marine Band played, which was “pushing the boundaries of U.S. law and the military tradition of political neutrality”. More and more, Trump treats all government resources as his personal property.) He will hold a rally in Florida today.
Is that safe, either for him or for the people around him? We get carefully worded statements from his doctor that don’t really answer the question.
and right-wing terrorism in Michigan
Thursday, 13 right-wing domestic terrorists were charged with participating in a plot to kidnap (and possibly kill) Michigan Governor Gretchen Whitmer. Confidential informants taped conversations about storming the Capitol, placing Whitmer on trial for treason, and taking her from her vacation home. And they did more than just talk.
The conspirators conducted surveillance of Whitmer’s vacation home on two occasions in late August and September, the complaint said. Croft and Fox discussed detonating explosive devices to divert police from the vacation home area, according to the FBI.
President Trump stands back from groups like this when they get caught, but he has also been encouraging them. When armed protesters (including some of the conspirators) surrounded and entered the Michigan state capitol in April, Trump tweeted “LIBERATE MICHIGAN“, and urged Whitmer to “make a deal” with them because they are “very good people”. (It’s worth noting that Whitmer did not give in to Trump’s pressure to reopen prematurely, but the Republican governors of Arizona, Texas, Georgia, and Florida did, with disastrous results. Whitmer was right and Trump wrong.)
In his debate with Joe Biden, Trump addressed another right-wing hate group, the Proud Boys, telling them to “stand by” because “somebody’s got to do something about Antifa and the left”.
Whitmer has refused to let Trump off the hook for this:
When our leaders speak, their words matter. They carry weight. When our leaders meet, encourage or fraternize with domestic terrorists, they legitimize their actions and they are complicit. When they stoke and contribute to hate speech, they are complicit.
It’s clear all 13 of these men — and probably many more like them — were and still are listening for signals like these, and interpret them as permission and direction. When Republican leaders call the governor a “tyrant,” we see that language take hold among protesters, who then take to carrying signs saying, “Tyrants Get the Rope.” (In Michigan, protestors even brought a naked brunette doll hanging by a noose to a rally.)
Republicans didn’t create these 13 angry men, but they have absolutely encouraged them — like blowing on a tinder to start a campfire.
What’s more, when there is some violent incident on the left, no one praises it. You don’t hear local officials or presidents of the United States justifying it. That stuff only happens on the right.
and Trump’s collapsing support
Two weeks ago, 538’s polling average had Biden leading Trump by 6.9%: 50.1%-43.2%. Now it’s up to 10.6%: 52.4%-41.8%. Then, the tipping point state was Pennsylvania, where Biden led by 5.2%. Now it’s Wisconsin, where Biden is up by 7.1%.
What I would call the coup de grâce state, the one that could tell us on election night that Biden has won, is Florida, where 538 has Biden ahead by 4.5%. Two weeks ago, Biden’s lead was only 1.7%.
Mitch McConnell is saying that literally, claiming that he hasn’t been to the White House in two months, because he “personally didn’t feel that they were approaching the protection from this illness in the same way that I thought was appropriate for the Senate.” And Joni Ernst says, “I’m running my own race.“
and the off-again on-again stimulus deal
Right now it looks like it’s off, largely because McConnell shows no interest. I think McConnell is already looking past the Trump administration, and thinking about how he can sabotage the Biden economy.
and the 25th Amendment
The 25th Amendment cleaned up a bunch of possible problem areas related to presidential succession, including what happens when the President is incapacitated. Section 3 covers when the President knows he is (or is about to be) incapacitated: He sends a note to both houses of Congress telling them that the Vice President is taking over for a while. Ronald Reagan did it once and George W. Bush twice before going under general anesthetic for surgery.
Section 4 covers presidents who don’t know they’re incapacitated, either because they’re unexpectedly unconscious, or because they’re off their rockers.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
That’s the situation we have appeared to be in this week. The steroid treatment Trump is receiving may have side effects:
While this commonly used drug is generally safe, there are a range of known side effects. “By far, the most common is hyperglycemia, so that’s where your blood sugars will shoot up,” [Dr. Celine] Gounder [of the New York University School of Medicine] said.
Also quite common, especially among older patients are a range of psychiatric side effects, she added. “Anything from feeling like you’re on top of the world … your arthritic aches and pains of age just melt away, you have lots of energy,” she said. “There may be some grandiosity.” The drug can also cause agitation, insomnia and even, psychosis, Gounder said.
It should be obvious that no one taking this drug should wield the powers of the presidency. And since he came back to the White House, Trump has been even more unstable than usual.
He has demanded that Attorney General Barr arrest his enemies, including Barack Obama, Hillary Clinton, and Joe Biden. “Wow!!! NOW DO SOMETHING ABOUT THIS, THE BIGGEST OF ALL POLITICAL SCANDALS (IN HISTORY)!!! BIDEN, OBAMA AND CROOKED HILLARY LED THIS TREASONOUS PLOT!!! BIDEN SHOULDN’T BE ALLOWED TO RUN – GOT CAUGHT!!!” He reiterated that demand in a phone interview with Fox Business Network. MSNBC comments: “These hysterical rants have no basis in reality.”
In that same FBN interview, he referred to Kamala Harris as “this monster“, and attacked his own appointees Mike Pompeo and Christopher Wray. Eventually the host said, “Mr. President, I know you have to go.”
While tweeting about the plot to kidnap Governor Whitmer — denying that he all but endorsed it with his “LIBERATE MICHIGAN” tweet this summer — he mixed his message with “Governor Whitmer of Michigan has done a terrible job.” He seemed much more upset that he might be blamed than that his supporters had planned a political crime unprecedented in US history.
So Nancy Pelosi has started the 25th-Amendment conversation, with a bill that establishes “such other body as Congress may by law provide” to assess the President’s fitness for office. But I disagree with one part of that article’s interpretation:
The commission, if called upon through House and Senate approval of a concurrent resolution, would “carry out a medical examination of the president to determine whether the president is mentally or physically unable to discharge the powers and duties of the office,” according to the bill text. The president could refuse the examination, but the commission would be authorized to factor that into their decision.
If the commission determines the president is unfit to perform his executive duties, the vice president would take over.
As I read the “or” in the 25th Amendment, the commission replaces the cabinet’s role the process, but not the Vice President’s. If the VP stands by the President, I don’t think the President can be removed.
and the fly on Mike Pence
I didn’t last long watching the vice presidential debate [transcript]. The first substantive exchange was about the administration’s handling of the Covid pandemic, which Pence absurdly claimed “saved hundreds of thousands of American lives”. Harris then made the obvious response:
Whatever the vice president is claiming the administration has done, clearly, it hasn’t worked. When you’re looking at over 210,000 dead bodies in our country …
And Pence then spun her attack on his administration as an attack on the American people, because Trump is the People, apparently.
when you say what the American people have done over these last eight months, hasn’t worked, that’s a great disservice to the sacrifices the American people have made
I turned it off right there. I’ve given this administration plenty of opportunities to explain their point of view, and all they do is bullshit me. I’m done listening.
So I missed the news event of the night: the fly who spent two minutes on Pence’s head without him noticing.
For what it’s worth, 60% in a CNN poll said Harris performed better.
Mr. Trump did not merely fail to end Washington’s insider culture of lobbying and favor-seeking. He reinvented it, turning his own hotels and resorts into the Beltway’s new back rooms, where public and private business mix and special interests reign. …
Federal tax-return data for Mr. Trump and his business empire, which was disclosed by The New York Times last month, showed that even as he leveraged his image as a successful businessman to win the presidency, large swaths of his real estate holdings were under financial stress, racking up losses over the preceding decades.
But once Mr. Trump was in the White House, his family business discovered a lucrative new revenue stream: people who wanted something from the president. An investigation by The Times found over 200 companies, special-interest groups and foreign governments that patronized Mr. Trump’s properties while reaping benefits from him and his administration.
and you also might be interested in …
The featured post includes yet another of my rants against minority rule. Somewhat coincidentally, though, this week two Republican senators openly expressed doubt or discontent with democracy.
In an odd series of tweets, Mike Lee of Utah said “We’re not a democracy” and then proceeded to explain why it’s better that way.
democracy isn’t the objective; liberty, peace, and prospefity are. … We want the human condition to flourish. Rank democracy can thwart that
Vox’ Zack Beauchamp looks at the vague but ubiquitous conservative talking point that “We’re a republic, not a democracy.” It’s true that the Founders worried about the tyranny of the majority, but modern Republicans are using this rhetoric to justify rule by the minority, which is surely worse.
modern conservatism has long had a built-in intellectual justification for ruling without popular support. … [T]he tradition Lee is operating out of … casts doubt on the most basic democratic principle: that the people who win the public’s support should rightly govern.
… The idea that majority rule is intrinsically oppressive is necessarily an embrace of anti-democracy: an argument that an enlightened few, meaning Republican supporters, should be able to make decisions for the rest of us. If the election is close, and Trump makes a serious play to steal it, Lee’s “we’re not a democracy” argument provides a ready-made justification for tactics that amount to a kind of legal coup.
Ben Sasse is similarly anti-democratic in his proposal to repeal the 17th Amendment, so that senators would once again be chosen by state legislatures rather than by popular vote. As he surely realizes, that would allow the Senate to be even more gerrymandered than the House. Just as the voters of Michigan, Wisconsin, and several other states can’t get rid of the Republican majorities in their gerrymandered legislatures, they also wouldn’t be able to get rid of their Republican senators.
Reasonable people will certainly disagree about the many political positions taken by candidates. But truth is neither liberal nor conservative. When it comes to the response to the largest public health crisis of our time, our current political leaders have demonstrated that they are dangerously incompetent. We should not abet them and enable the deaths of thousands more Americans by allowing them to keep their jobs.
The people who received the money managed it pretty well: They were more likely to be food secure and got off the streets more quickly than the control group. Their spending on alcohol, cigarettes, and drugs went down.
“It challenges stereotypes we have here in the West about how to help people living on the margins,” [Claire Williams, CEO of the funding foundation] said.
and let’s close with something analytic
This is from 2013, but I just found it, so maybe you haven’t seen it either. It’s a quiz the NYT’s Upshot column put together to analyze what your word usage says about where you’re from. My own dialect heat map doesn’t pick out my central Illinois home town precisely, but my years in Chicago apparently pulled my usage north a bit.
Three weeks ago, in “The Illegitimacy of a Conservative Supreme Court“, I focused on the Court as both the product and the enabler of minority rule: Democrats have won the popular vote in six of the last seven presidential elections, and yet the rural small-state bias built into the Electoral College has given us eight additional years of Republican presidencies. Combined with Mitch McConnell’s maneuvers and the luck of who dies when, Republican presidents have replaced four of the eight justices who left the Court during that time, with Amy Coney Barrett nominated to be the fifth, joining Clarence Thomas (appointed by the first President Bush, who did win the popular vote) to make a 6-3 conservative majority.
The Senate has an even larger rural small-state bias, which allowed McConnell’s minority-supported Senate majority to refuse to consider President Obama’s nominee Merrick Garland, stealing the seat for Neil Gorsuch, who was appointed by popular-vote-loser Donald Trump.
In short, the 6-3 majority Barrett’s confirmation would produce flies in the face of the will of the American people, who are considerably more liberal than a 6-3 Court would be. Worse, the 5-4 conservative majority has already shown a partisan Republican bias that makes rule by the Republican minority even more likely: unleashing a torrent of corporate money in Citizens United, gutting the Voting Rights Act, and refusing to recognize partisan gerrymandering as a violation of the right to vote. (The last two opinions were written by Chief Justice Roberts. In Rucho v Common Cause, he wrote that even the most extreme gerrymandering is “beyond the reach of the federal courts” and should be corrected “through legislation” that would need to pass precisely the legislatures where a minority party has been gerrymandered into power.) In its next term, the Court will hear a case that could undo the rest of the Voting Rights Act.
Why should you care? “But so what?” a voter might ask, particularly an independent voter who holds no particular sympathy for Democratic politicians kept out of power by Republicans who represent fewer people. The public associates certain high-profile issues with the Court — abortion, same-sex marriage, gun control, and affirmative action pop to mind — but what if those aren’t your issues? If you’re white, straight, unlikely to get pregnant, and not worried about mass shootings, why should a Court with an outside-the-mainstream conservative bias matter to you?
Even if you belong to some vulnerable group, you can fix most of the problems in your personal situation just by moving to a blue state. If you’re sick of being dominated by the Republican minority in Wisconsin, move to Minnesota or Illinois, where the majority still rules. And if you worry that federal courts will no longer protect you from the authentic conservative majority in Mississippi, go to Vermont or Oregon. Your abortion rights will be safe, no one will threaten your marriage, and white supremacy will be much less onerous.
So what do you need the Supreme Court for?
A recent state-court decision in Michigan, highlighted in an article in The Atlantic, points to a different kind of danger: Conservative courts can reinterpret the fundamental rules of our system of government in such a way that many important issues are placed beyond the reach of government entirely.
That’s worth caring about.
The Lochner Era. We’ve seen this before in American history, though it is passing out of living memory. Beginning in the late 1800s, the original Progressive movement tried to rein in the robber barons of the Gilded Age. People who felt crushed by a system that favored employers over employees elected representatives who passed laws to make that dominance less oppressive: child-labor laws, limits on the work-week, worker safety laws, minimum wage laws, and so on.
And the courts threw those laws out.
The case that gave the era its name in the legal history books is 1905’s Lochner v. New York. Joseph Lochner owned a bakery in Utica and liked to overwork people. But New York had passed the Bakeshop Act, a workplace-safety measure that limited bakers to working 60 hours a week or 10 hours a day. (Not only is it a bad idea for exhausted people to tend fires, but constant exposure to flour dust can cause respiratory problems.) Lochner appealed his fine to the Supreme Court, which overturned the Bakeshop Act as an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract”.
In practice, the “right to contract” meant this: If the only job available to you requires you to work yourself to death, and if your alternative is to watch your children starve, you have the “freedom” to accept that arrangement. The state can’t interfere.
In essence, Lochner put workplace issues beyond the reach of government. No matter what the voters thought, employers could use the scarcity of jobs and the surplus of workers to enforce their will. If workers lacked the market power to say no, government couldn’t say no for them.
The swan song of the Lochner Court came when it declared FDR’s National Recovery Administration unconstitutional in 1935. The threat to block the entirety of the New Deal motivated Roosevelt’s court-packing plan, the Judicial Procedures Reform Bill of 1937. And while that bill did not pass, the Court seemed to take it as a shot across the bow. It started to back off, the New Deal was allowed to proceed, and FDR eventually stayed in office long enough to replace eight of the nine justices he inherited.
Non-delegation. The Michigan case examined in The Atlantic’s article concerns a law the Michigan legislature passed in 1945 titled “Emergency Powers of Governor“. It’s a short but sweeping bill whose stated intent is
to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.
In March, Governor Gretchen Whitmer invoked these emergency powers to fight the coronavirus pandemic. On October 2, on a party-line 4-3 vote, the Michigan Supreme Court not only invalidated Whitmer’s orders, but closed the door on future emergency orders by ruling that
the [EPG] Act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
The portion of the Michigan Constitution in question is rather general and open to interpretation:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
The whole point of a state-of-emergency laws is that legislation is a slow process that events can outrun. So the 1945 legislature, recognizing its limited speed, pre-loaded some powers into the governorship.
But that is now unconstitutional in Michigan.
Minority rule in Michigan. It’s worth noting that Michigan is currently a minority-rule state. A majority of the voters have repeatedly tried to elect Democrats to the legislature, but have failed to take control away from Republicans, who have gerrymandered themselves into power. In 2018, Michigan voters tried to deal with this by passing a ballot proposition to create an independent commission to draw legislative-district boundaries. Republicans sued in federal court to invalidate that law, but so far have failed. Even if the independent commission succeeds, though, the new districts won’t be in force until the 2022 election.
In short, Governor Whitmer represents the voters of Michigan; the Republican leadership of the gerrymandered legislature does not. Moreover, even though critics of majority rule sometimes smear it as “mob rule”, in this case it is the minority-rule Republicans who are supported by a violent mob.
Neil Gorsuch. The Michigan Court’s invocation of “non-delegation” explicitly references a dissenting opinion by US Supreme Court Justice Neil Gorsuch, in which he calls for reviving the non-delegation doctrine of the Lochner Court.
Before the 1930s, federal statutes granting authority to the executive were comparatively modest and usually easily upheld. But then the federal government began to grow explosively. And with the proliferation of new executive programs came new questions about the scope of congressional delegations. Twice the Court responded by striking down statutes for violating the separation of powers.
Gorsuch’s target is what conservatives pejoratively call “the administrative state”, which is embodied in agencies like the SEC, FDA, EPA, FCC, IRS, and many others that keep powerful economic interests in line.
In the same way that emergencies can develop too quickly for a legislative response, corporate interests can repackage and reinvent themselves much faster than Congress or a state legislature can counter. Congress has responded by laying out broad principles and delegating their enforcement to administrative agencies.
For example, the Clean Air Act did not list every pollutant, or lay out precise standards for controlling each one. Instead, it empowered the EPA (according to Wikipedia)
to construct a list of Hazardous Air Pollutants as well as health-based standards for each one. There were 187 air pollutants listed and the source from which they came. The EPA was given ten years to generate technology-based emission standards.
This kind of thing happens across the government. The FDA might ban some food additive, and then respond immediately with a new ban if food companies just tweak the formula in some trivial way.
Under non-delegation, though, every such decision could be challenged in court, and ultimately be decided by the corporate-favoring regulation-hating 6-3 majority. The Atlantic’s Nicholas Bagley (a University of Michigan law professor) draws the conclusion:
The nondelegation doctrine isn’t about democracy. It’s about the power to restrain government. And it will be wielded as opportunistically against a President Biden as it has been wielded against Whitmer.
What Biden should say about expanding the Court. When FDR threatened to “pack the Court” by increasing its size so that he could appoint new justices, there was good reason to do so. The Court was enforcing a theory of economics and of the government’s relationship to the economy that the American people no longer believed in. The country wanted to change, and the Supreme Court would not let it. Only by relenting did the Court make Roosevelt’s power move unnecessary.
And if all you are allowed is a short answer, that’s the right response, because “yes” and “no” are both premature. I’d like to hear Biden answer the question like this:
Pack the Court? I hope it doesn’t come to that. I can promise you this: I will not come into office on Day 1 saying, “We need to change the Supreme Court.”
But as everyone can see, there are several conservative biases in our system, and those biases are combining to produce a Supreme Court that radically diverges from the American people.
Twice in the last seven elections, a Republican has become president even though another candidate got more votes. Similarly, Republicans currently have a majority in the Senate, even though their senators represent fewer voters. That situation has not been uncommon in recent years. And since the President and the Senate choose the Supreme Court, over time the Court has become far more conservative than the American people.
Now, that doesn’t have to be a problem. When John Roberts was being confirmed as chief justice, he said his political opinions didn’t matter, because a justice is just an umpire, calling balls and strikes according to a strike zone defined by the laws and the Constitution. If he, and the rest of the Court, can hold to that discipline, then they won’t get any trouble from me.
But I can’t help noticing that several times in the last two decades, the Court hasn’t called balls and strikes, but has put its thumb on the scale of politics, nearly always on the Republican side. The Court wasn’t calling balls and strikes when it opened the spigots of corporate money in Citizens United. It wasn’t calling balls and strikes when it undid the Voting Rights Act, which had been renewed by Congress in a near-unanimous vote. It wasn’t calling balls and strikes when it shrugged off partisan gerrymandering. In those cases, it was taking a political position and favoring a political party.
If it continues down that road, then we will have a problem.
Right now, the Court is considering whether to undo the biggest achievement of progressive politics in the last few decades, the Affordable Care Act — ObamaCare. If they do, they will take health insurance away from tens of millions of Americans, and remove protections from the additional tens of millions who have preexisting conditions — including everyone who has survived Covid-19. The argument for striking down that law is based on a novel legal theory that no one who voted either for or against the ACA ever considered at the time. It’s bogus, and they know it.
The ACA passed because the American people were worried about their healthcare and wanted change. They still want change; they want more change than we were able to give them then. And healthcare is just one area where the American people are crying out for change.
Early in the 20th century, the American people were also crying out for change. And so they elected state and federal representatives who legislated for a minimum wage, a limited work week, a safe workplace, and the right to organize a union. But the Supreme Court of that era said no, and invalidated law after law — hundreds of them. What that Court said to the American people was: “I don’t care what you want, you can’t have change.”
And so the change that the American people had wanted since the turn of the century was delayed until the New Deal in the 1930s.
Now if that’s what this Court has in mind, to thwart the will of the voters for decades, for as long it can, in service to an ideology that the American people don’t share, then I think the elected branches of our government will have to respond.
What will that response look like? I don’t know yet, because I haven’t seen what the Court will do. If it behaves itself, if it lets the elected branches of government do the things that the American people elect us to do, then there will be no response, because there will be no problem.
But if I’m not going to begin my administration with a plan to change the Court, I’m also not going to begin my administration by writing this Court a blank check, by saying, “Abuse your power any way you like, and I’ll just sit on my hands.”
If I’m elected, then I will have a responsibility to the voters who elected me. And if I find that the will of those voters is consistently being blocked and subverted by judges who not only are unelected, but who were appointed by people who lost the popular vote themselves, then I will have to consider the options that our constitutional system provides.
People, not politicians. That position represents a subtle shift in framing from what many other Democrats are saying. Yes, the problem has been caused by shenanigans in the Senate, capped off by the plan to rush Amy Coney Barrett’s nomination through before the voters can do anything about it. But framing this as tit-for-tat shenanigans — we’ll pack the Court if you jam Barret through — is bad politics. That’s a threat to make behind closed doors, not to broadcast to the public.
Biden should hinge his position not on how the Senate behaves, but on how the Court behaves. Striking back because Mitch McConnell stole Merrick Garland’s seat is a he-hit-me-first argument that just increases a lot of Americans’ disgust with politics, because it’s about politicians, not about them. But framing the argument as “The Supreme Court is taking away your health insurance” or “The Supreme Court won’t let us protect your drinking water” or “The Supreme Court won’t let us stop mass shootings” is a different story.
You want change, but the Supreme Court won’t let it happen. Help us fix the Supreme Court. That’s the right argument to have.
Three weeks from Tuesday, we start counting the votes, which are already being cast. I’m sure it will seem like forever. Right now, Trump is sinking, and his October surprises are looking like the “secret weapons” Hitler was counting on as the Russians closed in on his bunker: No vaccine is coming before the election, and John Durham isn’t going to indict Joe Biden.
This week, I decided to step back from the Trump Circus and look once again at the prospect of a 6-3 conservative majority on the Supreme Court: what it means for the continuance of minority rule, how it might change the fundamental rules of our government, and what Joe Biden should say about it. In particular, I look away from the issues we usually associate with the Court — abortion, guns, gay rights, affirmative action — and focus on the possibility that a conservative Court might undermine the legal basis for government to regulate big corporations by reviving a “non-delegation” doctrine from the Bad Old Days of the Supreme Court: the Lochner Era.
That post looks at what’s going on now in conservative jurisprudence and how it relates to legal history. I close by recommending a long answer for Joe Biden to give to the question “Do you support packing the Supreme Court?” (The short answer is: not if they behave themselves.)
That’s done but for proofreading, so it should be out shortly.
The weekly summary will discuss the White House Covid Cluster, and just how little we’ve been allowed to know about it. Also the 25th Amendment, and why it should have been invoked this week. The increasing likelihood that no further stimulus is coming. And, BTW, let’s not forget that this week included a right-wing plot to overthrow the government of Michigan, one of the states Trump urged his supporters to “liberate” this summer. Who could have imagined that armed yahoos would respond to something like that?
Republican senators are openly dissing democracy. Trump’s return to campaigning despite being infected completely obscured his abuse of the White House grounds and the Marine Band as campaign props. The NYT outlined the scope of Trump’s pay-to-play corruption. And the virus is running wild again, especially in the Dakotas.
That should all be in the weekly summary, which should be out by noon, EDT.
Schadenfreude was our top lookup on October 2nd, by a very considerable margin, following President Trump’s announcement that he and the First Lady had tested positive for COVID-19.
I feel like it’s my responsibility to watch things like this, or review the video later, or at least read the transcript. But in fact, I have done none of those things. The next morning (Wednesday), I watched the first ten minutes, plus the clips the media wanted to show me, and decided that life is too short.
In early September, Politico did an article on Trump’s debate strategy, and it rings pretty true: The point of all the interruptions and other antics was to provoke Biden into an embarrassing stuttering incident. It didn’t work. However, it did hide the fact that Biden has plans for his administration and Trump doesn’t.
A post-debate Politico article “Trump Is Not the Man He Used to Be” compares this debate performance to his 2016 debates, particularly the one with Hillary Clinton right after the Access Hollywood tape threatened to derail his entire candidacy.
With his back to the wall, facing scrutiny like no presidential hopeful in memory, Trump turned in his strongest stage performance of 2016. He was forceful but controlled. He was steady, unflappable, almost carefree. Even his most noxious lines, such as suggesting that Clinton belonged in jail, were delivered with a smooth cadence and a cool smirk, as if he knew a secret that others didn’t.
On substance, I thought he lost that 2016 debate, as he lost all the Clinton debates. But he restored an image that just enough voters found appealing: the mischievous boy thumbing his nose at authorities and all their stupid rules. The supposed “gaffes” of 2016 — calling Mexican immigrants “rapists”, refusing to be impressed by John McCain’s war-hero status, mocking a reporter’s disability, telling his supporters to “knock the hell” out of protesters at his rallies, and so on — were delivered with an air of “look what I can get away with”.
A certain kind of voter, particularly the white male non-college voter Trump was hoping to turn out, loved that. (Rush Limbaugh appeals in the same way, for example, when he tries to see how close he can come to saying the N-word on the radio.) To them, it was fun. While Trump was often compared to a bull in a china shop, his base saw something equally destructive but much more humorous, like the Blues Brothers driving a stolen police car through a shopping mall, leaving a trail of broken glass and crushed mannequins. Sure, it’s wrong and would make a lot of people mad, but wouldn’t you love to get away with something like that?
It might be hard to remember through the fog of these past four years, but the animating sentiment for Trump during his first run for the presidency wasn’t hatred or division. It was fun. He was having the time of his life. Nothing Trump had ever experienced had showered him with so much attention, so much adulation, so much controversy and coverage. He loved every moment of it.
But that look-at-me-I’m-a-bad-boy attitude was completely absent from the Biden debate. He seemed more like the bad boy who gets caught and then whines about his punishment.
The president wasn’t enjoying himself last night. … There was no mischievous glint in his eye, no mirthful vibrancy in his demeanor. He looked exhausted. He sounded ornery. Gone was the swagger, the detached smirk, that reflected bottomless wells of confidence and conviction. Though described by Tucker Carlson in Fox News’ pregame show as an “instinctive predator,” Trump behaved like cornered prey—fearful, desperate, trapped by his own shortcomings and the circumstances that exposed them. He was a shell of his former dominant self. … Watching the president on Tuesday night felt like watching someone losing his religion. Trump could not overpower Biden or Wallace any more than he could overpower Covid-19 or the cascading job losses or the turmoil engulfing American cities. For the first time in his presidency, Trump appeared to recognize that he had been overtaken by events.
You might think denouncing violent white supremacists would be an easy call for any American politician, but Trump couldn’t get it done during the debate. Prodded by Chris Wallace to ask the Proud Boys to “stand down”, Trump instead asked them to “stand back and stand by” because “somebody has to do something about Antifa and the left”.
After considerable pearl-clutching (but no sharp criticism) from Republican senators, Trump backed off, sort of. In his last interview before announcing his Covid infection, Trump told Sean Hannity:
Let me be clear again: I condemn the KKK. I condemn all white supremacists. I condemn the Proud Boys. I don’t know much about the Proud Boys, almost nothing, but I condemn that.
Let’s parse all this a little. Antifa is largely a right-wing myth. (We’ll discuss below the possibility that something else is going on.) As FBI Director Christopher Wray has explained: “It’s not a group or an organization. It’s a movement or an ideology.” Even if somebody needs to “do something” about Antifa (and I suspect nobody does), that “somebody” should be local law enforcement, not armed gangs of right-wing vigilantes.
But let’s say Trump really didn’t know anything about the Proud Boys Tuesday night, and still knew “almost nothing” about them after two days of controversy. Then why was he giving them instructions on national TV?
So far, three senators — Ron Johnson, Mike Lee, and Thom Tillis — have tested positive. Two of them — Lee and Tillis — are on the Judiciary Committee that needs to hold hearings on Barrett. Two others — Ted Cruz and Ben Sasse — are self-quarantining.
The first obstacle for Republicans may be the committee vote, tentatively planned for Oct. 22.
To report out a nomination, a majority of the 22-member committee will need to be present, and Democratic senators will not help Republicans make quorum, aides said Sunday. Although proxy voting is allowed in the Judiciary Committee, it works only when there is a quorum present and the proxy votes don’t change the outcome of the vote, according to committee officials.
I am sure we will see many procedural maneuvers between now and November 3, and I don’t want to predict how they will play out.
but let’s think about undecided voters
Several people this week have asked me some version of: “After everything we’ve seen these last four years, how can anybody be undecided in this election?”
Given my advanced case of male answer syndrome, of course I have a theory: I picture two kinds of undecided voters: the apathetic and the torn.
To understand apathetic voters, think about some level of government you don’t usually pay attention to. For example, maybe you don’t have kids, and school board elections go by without you noticing. Or maybe you just moved to a new town, and haven’t found a reason yet to care about who your alderman is.
Probably you hear something about these elections, but it just goes in one ear and out the other. You know some of your neighbors care, but to you it just sounds like a bunch annoying people yelling at each other.
That’s how apathetic voters are about national politics, and the media’s both-sides-do-it narrative feeds their inclination to stay ignorant. “Some people love Trump, and some people hate him, but they’re all crazy and I steer clear of them.”
if these people do end up voting, it’s a last-minute decision. The night before or the morning of Election Day, they’ll look up some issue they care about on the internet, or talk to some friend they think is well informed, and that’s how they’ll make up their minds. They’re highly vulnerable to misinformation, so they’re largely who the Russians target with their social-media bots. But I think Biden does have a persuasive last-minute message to offer them: “Given the 200,000 dead of coronavirus, the restrictions on what the rest of us can safely do, the high unemployment, the enormous budget deficit, and the growing racial tensions in our country, do you think America is better off than it was four years ago? Has Trump kept his promise to make us ‘great again’, or should somebody else get a chance to lead us?”
Torn voters are fighting an internal battle. Some part of them has an irrational attraction to or repulsion from one of the candidates, but they don’t know how to justify giving in to that urge. (I irrationally wanted to vote for John McCain in both the 2000 and 2008 New Hampshire primaries. In 2000 I did.)
I believe torn voters were the key to Trump’s 2016 victory. They knew Hillary Clinton would be the better president, but they didn’t like her, and wouldn’t it be a hoot to have that other guy? And since he wasn’t going to win anyway, what harm would it do to vote for him? The Crooked Hillary meme and the last-minute Comey announcement about her emails gave them the permission they needed, and so the Undecideds all broke to Trump at the last minute.
This year, I think a lot of the undecided are Trump’s 2016 voters who now are torn. They know he’s a bad president, but they don’t want to admit they were wrong. I think a lot of them will break to Biden at the last minute, largely because of the point made in the Politico article I quoted above: Trump isn’t fun any more. On Election Day, the thought “All this bullshit could just be over” will ripple through the electorate.
Without getting into the legal weeds, the bottom line is that there is no way to throw the election into the House — where the Republicans would win if they could hold their current 26-24 advantage in state delegations — without either a 269-269 tie or a third candidate getting electoral votes. If some votes are thrown out, the candidate with the most electoral votes still wins, even if the total falls below 270.
Mail-in ballots, of course, are designed to be mailed. But if you aren’t confident in the mail delivering your ballot on time — say, because Trump is intentionally sabotaging the Post Office — you might set your mind at ease by taking your ballot to a dropbox that election officials will open themselves.
Except in Texas, apparently.
The rule affects mainly a few populous counties, including Harris, home of Houston, which had set up twelve collection spots for its 2.4 million registered voters.
The highly populated counties are exactly the ones where Democrats need a big turnout. Abbott claimed his order will “help stop attempts at illegal voting”, without presenting any evidence that illegal voting is a problem. But the move is certain to reduce attempts at legal voting, if courts let it stand.
Another underhanded scheme comes from Michigan, where two Republican operatives face charges in a robocall campaign to scare people out of voting by mail.
The calls told the recipients falsely that voting by mail would put their information in databases used for arrest warrants, debt collection and “mandatory vaccines.” … According to Thursday’s announcement, the robocalls went out to nearly 12,000 residents in Detroit. Attorneys general offices in New York, Pennsylvania, Ohio and Illinois also told [Michigan Attorney General Dana] Nessel that there were similar calls in their states, Nessel’s announcement said.
If Covid forces Bill Stepien to step down as Trump campaign chair, would you want to replace him, given what’s happened to your predecessors? Paul Manafort is serving a prison term (at home, due to Covid), Steve Bannon is under indictment, Brad Pascale is in the middle of some kind of personal crisis that has seen him arrested and hospitalized, and now Bill Stepien has Covid. Corey Lewandowski is the lucky one, so far: the misdemeanor battery charge against him was dropped.
I hadn’t been taking seriously the possibility that Iowa Senator Joni Ernst could lose, but apparently I should: A recent poll has her down 51%-39%.
The NYT’s Farah Stockman drew attention to a fairly obscure blog Public Report by Santa Monica photographer Jeremy Lee Quinn. Quinn has been studying anarchist groups that have been trying to turn Black Lives Matter protests into riots.
Mr. Quinn began studying footage of looting from around the country and saw the same black outfits and, in some cases, the same masks. He decided to go to a protest dressed like that himself, to figure out what was really going on. He expected to find white supremacists who wanted to help re-elect President Trump by stoking fear of Black people. What he discovered instead were true believers in “insurrectionary anarchism.”
These folks appear to be the root of what Trumpists call “Antifa”, but really they are something different. Quinn offers this Venn diagram., and writes: “Anarchist action is distinct from Antifacist action in which counter-demonstrators clash with the right wing to actively counterprotest their rallies”
I hope to have time to examine this better in coming weeks.
and let’s close with something weird
Weird Al Yankovich turned the presidential debate into a song with a catchy title: “We’re All Doomed“.
Bad as it is, what we know so far about Trump’s taxes may not be the worst of it.
One persistent problem of 2020 is that it’s hard to hold an issue in your mind for any length of time. The New York Times revealed Trump’s taxes just a little over a week ago, and since then two other big stories — the debate disaster and the White House coronavirus outbreak — have all but washed the tax issues out of the news. I think they deserve a little more attention than that.
Narratively, the problem with the tax story is that it’s a bunch of smaller stories, none of which encompasses the whole thing. It’s certainly about tax avoidance, maybe legal and maybe not. But it also could be about laundering money for people we can’t identify.
$750. The headlines that came out of the original NYT article were how little Trump has paid in taxes: $750 in each of 2016 and 2017, and nothing at all in many other years. And that certainly is scandalous, whether or not it turns out to be legal. I pay considerably more than that every year, and probably you do too. Nobody thinks Joe Biden is a billionaire, but he paid $299,346 in 2019.
Trump famously said “that makes me smart” when Hillary Clinton accused him of not paying his fair share of taxes in 2016. But that’s the same kind of “smart” that got him excused from Vietnam with bone spurs — unlike the “suckers” and “losers” who died for their country. It’s similarly “smart” to stiff your contractors, trade in your wives when they start to age, hire illegal immigrants to tend your golf courses, create a phony university and a phony foundation, and do a lot of the other things that have kept Trump safe and rich and feeling pleased with himself.
But I don’t think most Americans want to be led by someone with those kinds of smarts. Trusting “smart” people like Trump will usually get you outsmarted eventually. Someday, it will be smart to screw you the way he has screwed everybody else.
The bad businessman. The other headline from the NYT article was that many of Trump’s most famous properties are money-losers, and always have been.
The second article in the NYT series (the newspaper claims more are coming) showed how the windfall of income related to his TV show “The Apprentice” bailed him out of the financial difficulties created by his other business failures. In other words: His ability to play a successful businessman on TV covered up the fact that he actually isn’t one.
He sold his image in a variety of ways, many of which were harmful to the people who trusted him. The NYT finds he was paid $8.8 million to promote ACN, a multi-level marketing company that promoted what were essentially pyramid schemes.
The NYT paints a picture of a man who gets big windfalls (the first one being at least $400 million from his father), and then proceeds to fritter them away.
Debt. Trump owns a lot of assets and has taken out a lot of loans against them. The NYT estimates that about $400 million of loans come due in the next four years. We know some of the lenders (Deutsche Bank), but not all of them.
Nothing Trump is doing as a businessman is generating much cash. So during his prospective second term, he will either need to get new loans or sell assets. The security vulnerabilities here are obvious: If he gets loans or finds buyers, particularly from abroad, we will never know whether there is a bribe hidden somewhere in that money.
Ivanka? One way Trump lowered his taxes was to claim millions in “consulting fees” as business expenses. In at least some of those cases, it looks like he was funneling money to his kids, who shouldn’t be getting consulting fees from businesses that also list them as employees.
This resembles an apparently illegal scheme that Trump’s father used to funnel money to him.
The Times traces about $750K that went to Ivanka via this path. But CNN speculates about the other $25 million in consulting fees:
So we don’t know who received the other $25-ish million that Trump wrote off to “consulting fees” during that time. (Worth noting: The Times reports that Trump wrote off roughly 20% of all income he made on projects over that time to “consulting fees.”) Given the apparent payment to Ivanka Trump revealed by the Times, however, it’s not terribly far-fetched to wonder whether all (or much) of those “consulting fees” went through a similar process: Paid to one of Trump’s offspring who were serving as both managers of these operations for the Trump Organization and as consultants to the projects as well.
Money laundering? The most serious accusation is speculative, but the speculation explains transactions that are otherwise mysterious. A tweetstorm by author Adam Davidson delves into one Trump property (his golf course in Scotland) in detail, and finds some strange bookkeeping.
The thing everyone reports is the losses–the shareholder (Trump) has lost more than £7M. But the interesting stuff is the fixed asset value and the creditors — over one year. Trump is all of them: he owns the asset, lends the money, owes the money, is owed the money. …
There’s much more to say–each line here is fascinating. But the overall picture is crystal clear: Every year, Trump lends millions to himself, spends all that money on something, and claims the asset is worth all the money he spent.
He cannot have spent all that money on the properties. We have the planning docs. We know how much he spent — it’s far less than what he claims. The money truly disappears. It goes from one pocket to another pocket and then the pocket is opened to reveal nothing is there.
… These financials are clear: this is not a golf business, it’s a money disappearing business.
… If this is a money disappearing business and it is not only tax fraud, then he is making money disappear for somebody else and charging some sort of fee. Which might explain why a money-losing golf course pays huge fees to its owner.
Two obvious questions:
What would happen if Trump’s other money-losing properties came under similar scrutiny?
Didn’t the Mueller investigation look into all this?
Trump had also done lots of business with Deutsche Bank, and although Mueller issued his subpoenas secretly, word somehow leaked to 1600 Pennsylvania Avenue. When the White House asked Mueller’s team what they were examining, Mueller responded that Manafort, not Trump, was the target.
“At that point, any financial investigation of Trump was put on hold,” writes Andrew Weissmann, a veteran federal prosecutor who played a senior role in Mueller’s investigation, in a new book. “That is, we backed down — the issue was simply too incendiary; the risk, too severe.
Of all the things I hold against Trump, this is the one I will have the hardest time forgiving: He has made me realize how spiteful I can be.
Schadenfreude and karmic justice. I wish I could report that when I heard about Trump testing positive for the coronavirus, I felt a wave of human compassion. Because politics is one thing and life is another, and we’ve got to hang on to our humanity.
But what I actually thought was: “Maybe there really is a just God.” It wasn’t exactly schadenfreude, which would be more like “I’m glad that bastard is suffering.” (Coincidentally, Merriam-Webster reported a 305-times increase in the number of searches for schadenfreude on October 2.) But it’s close: Hearing about his diagnosis made the Universe seem like a safer, saner place.
This is the kind of thing a good person would never say about another human being, but (in both a karmic and a practical sense) nobody had this coming like Trump. Practically, he has been ignoring precautions, running around the country maskless, not enforcing sound workplace hygiene practices at the White House (which The Atlantic’s Peter Nicholas presciently described as “a petri dish” in August), and doing everything he could to discourage others from taking precautions (like berating a White House reporter for wearing a mask to a briefing).
How many of America’s 214K-and-counting coronavirus deaths are Trump’s fault? It’s impossible to say precisely, but here’s how I think about it: Culturally and economically, the country that best resembles the US is Canada. Canada currently has 251 Covid deaths per 100K people. The US has 647. If our government could have handled the virus as well as Canada’s, and kept our deaths-per-100K down to 251K, we’d have only 39% of the deaths we currently have, or 83K rather than 214K.
That calculation would say that about 131K American deaths are on Trump. That’s about 33,000 Benghazis or 44 9-11s. If you make Germany or Australia the reference country, the number gets even bigger. If you use Japan, practically all the deaths are his fault.
So, am I rooting for him to suffer and die? No. But a Universe where he skates along unaffected by the damage he causes just feels wrong to me.
BTW, if you find yourself feeling guilty about your own lack of sympathy for Trump, take a look at how he responded during the 2016 campaign when Hillary came down with pneumonia.
The philosopher Aaron James has defined a technical term to describe people who want to claim the benefits of rules governing politeness and propriety, while always holding themselves exempt from the duties, inconveniences, and sacrifices those rules impose: They are assholes.
Is he really sick? On Friday, just about everybody I talked to was asking this question, and wondering if the Covid thing was a play for sympathy or an excuse for ducking the rest of the debates or a way to divert attention from his taxes or keep Biden out of the headlines. It’s crazy that we even have to consider the possibility of a presidential health hoax, but we do. Trump has lied about everything else, so why not this?
In general, though, I don’t believe in big conspiracies, and the longer this goes on, the more people would have to be in on it. So by now I’m pretty sure that he really is sick.
But even Friday morning the hoax explanation seemed unlikely, because catching Covid undermines so many things Trump has been working to accomplish. For months, he’s been trying to induce voters to think about anything else. He’s been telling his rallies that the pandemic is fading. Plus, he wants to present an image of larger-that-life strength. Trump aims to inspire awe and love in his supporters, and hate and fear in his enemies. People like me wondering if we ought to feel sorry for him is the last thing he wants.
His scandalous response. It’s not a scandal that Trump caught the virus, but what he did next is: After he knew he had been exposed, he continued to meet people who were not warned about the risk. (What the Wall Street Journal is reporting is even more damning: He had already seen a positive test before phone interview with Sean Hannity Thursday evening, but pretended he hadn’t.)
There’s been a lot of controversy about the timeline, but we do know this much: Hope Hicks was diagnosed Wednesday, so by Thursday afternoon Trump knew that he (and probably a lot of his staff) had been exposed and might be carrying the infection; his positive test was announced several hours later. Nonetheless, he went to a fund-raiser at his club in New Jersey and schmoozed with his donors. He traveled there with his staff on Marine One, a close-quarter helicopter without proper ventilation.
The fund-raiser included a round-table photo op with 18 quarter-million-dollar donors, few (or perhaps none) of whom were wearing masks. A larger photo op was held for mere $50K donors, and there was an outdoor event for the low-rollers who may have only given a few thousand. In all, we’re talking about hundreds of people. They aren’t his enemies; they’re the people he’s depending on to get him a second term.
Friday, the campaign emailed attendees to tell them about Trump’s positive test. The email did not recommend that they quarantine or get tested themselves, but merely said they should contact their doctors if they developed symptoms.
If you ever need an example to back up the point that Trump cares about no one but himself, here it is. He doesn’t even care about his staff, or the people who give big donations to his campaign.
And if you need an example to make the case that Trump is typical of an entire generation of conservative assholes, use Senator Ron Johnson of Wisconsin. Friday, he went to a fund-raiser after he had a positive test.
What if he can’t go on? One question on everybody’s mind: What happens if illness causes Trump to withdraw or die? The Washington Post has it covered:
The bottom line is that the RNC would determine who the replacement candidate would be, should it come to that unfortunate situation. And Republican slates of electors in states the president won, because he remains on the ballot, would very likely follow the RNC’s recommendation.
But one last possibility to ponder: If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.
The Atlantic surveys the same ground with more emphasis on the chaotic scenarios. That article also reveals history I didn’t know: Presidential candidate Horace Greeley died between the 1872 election and the date when electors cast their ballots, and VP candidate James Sherman died before election day in 1912. Both were on losing tickets, so the course of the nation didn’t hinge on how the rules were interpreted.
The White House cluster. After learning that the President and First Lady were infected, the next question was “Who else?” Many political movements fail by believing their own rhetoric, and Trump has been saying for a long time that the virus isn’t a big deal; we should all just get back to normal as fast as possible. Among Trumpists, mask-wearing and other good public-health practices are looked on as wimpy, as “living in fear“. (Packing heat at the supermarket, on the other hand, is just a reasonable precaution.)
when I arrived at the White House this morning, I was struck by the lack of safety protocols in place. The most famous address in America now feels like a coronavirus breeding ground. … Some of the West Wing desks are spaced so closely together, and some of the offices are so cramped, that it’s tough to see how people avoid exposure at all. In one small office today, two aides stood and spoke to each other without masks. Young aides sat at desks in an open bullpen-style space without masks. Walking through the hallways accessible to the press, I wore a mask, but I haven’t been tested for COVID-19; had I removed my mask for some reason and coughed or sneezed, there was no hint of a mask patrol prepared to whisk me out the building. The vibe was shockingly lax.
Apparently nothing is going to change. The White House is saying that CDC guidelines make mask-wearing optional, so that’s what they’ll stick with.
How is he doing? This gets into the breaking-news area I try to avoid. (I can’t compete with CNN, and you shouldn’t get your breaking news from a weekly blog anyway.) But the striking thing about this weekend’s announcements was how much bullshit you had to wade through to find out anything. Had the President needed oxygen? The doctor kept dodging the question and repeating that he wasn’t on oxygen now. Had his x-rays revealed any pneumonia or lung damage? Another dodge.
Eventually we found out that he did spike a high fever at some point. (How high? They won’t say.) He had a couple of episodes of low blood oxygenation. He has received multiple cutting-edge treatments, some of which are only recommended for severe cases. That raises three possibilities:
He’s sicker than the White House is letting on.
Doctors are being super-aggressive because he’s the President.
Trump is a victim of “VIP syndrome”, where doctors yield to the judgment of an important patient rather than doing what they think is best.
Photo ops. Whatever energy Trump does have has been devoted to controlling the narrative, rather than getting well or running the country. He has released two Twitter videos from Walter Reed Hospital, and Sunday he had two Secret Service agents risk their lives to drive him around the building, so that he could wave to his fans.
Every single person in the vehicle during that completely unnecessary Presidential “drive-by” just now has to be quarantined for 14 days. They might get sick. They may die. For political theater. Commanded by Trump to put their lives at risk for theater. This is insanity.
… That Presidential SUV is not only bulletproof, but hermetically sealed against chemical attack. The risk of COVID19 transmission inside is as high as it gets outside of medical procedures. The irresponsibility is astounding. My thoughts are with the Secret Service forced to play.
So file this with the other examples of Trump not caring about anyone but himself.
During the Trump Era we tend to forget that America has had previous presidents who behaved differently. But it’s worth thinking about that now. It’s not crazy for a president to want to reassure the country that he’s OK and that America is still in good hands. But other presidents would have used their limited energy to do work, not pull a stunt.
For a normal president, it would make perfect sense to, say, be on the phone lobbying senators to support his Supreme Court nominee, or urging members of Congress to work out their differences and send him a stimulus bill. Mark Meadows could tell us he was doing those things, and the people he was calling could verify how on-the-ball he was.
Instead, he had to leave the hospital and wave to his adoring public.
Political impact. Something you have to bear in mind is that prior to announcing his infection, Trump was losing the presidential race pretty badly. So anything that shakes up the race at least interrupts a story that was trending against him. 538’s national polling average has Biden up by 8%, and polling above the magic 50% mark that Hillary couldn’t get to, no matter far ahead she was. Ditto for the RCP average, which has Biden up by 8.1% at 50.6%.
Focusing on the Electoral College, 538’s most likely tipping-point state is Pennsylvania, where Biden is ahead by 5.3%, and its tipping-point status depends on Trump also winning Florida, Arizona, North Carolina, and Ohio, where Biden has smaller leads.
For comparison, Texas is closer than that: Trump is ahead by only 4%. So a landslide where Biden takes Texas (and Iowa and Georgia) is currently more likely than the narrowest possible Trump win.
If anything, the more recent polls, taken after Tuesday’s debate but before Trump’s positive test was announced, were even worse for Trump: Biden was up 14% in an NBC/WSJ poll released Sunday.
It wouldn’t surprise me if the short-term effect of Trump’s diagnosis is a small sympathy bump. But long-term I don’t see how it serves him. Anything that keeps the pandemic in the headlines is bad for him, because he has bungled our government’s response so badly. Anything that makes him look weak is bad for him. Cancelling rallies is bad for him. I don’t think his first debate performance did him any good, but cancelling the remaining two debates would remove opportunities for him to turn things around.
So no. Even if he recovers completely, I don’t think getting sick does Trump any good.
The Weekly Sift 