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To Save Democracy, End the Filibuster

American democracy only works if the Senate works.


At the moment the two biggest stories in American politics are the impeachment of Donald Trump and the long-anticipated inauguration of Joe Biden. Both stories, at their root, are about the continuance of democracy.

Biden’s inauguration may be sparsely attended, socially distanced, and observed by enough troops to conquer a medium-sized country, but fundamentally it will be a celebration of the peaceful transfer of power. In spite of a long list of bad-faith challenges, culminating in a right-wing mob attacking the Capitol itself, the American People will get the president they elected.

Trump’s impeachment is in some sense the flip side of that same coin. When a president tries to hang on to power in spite of the People, even to the point of inciting violence against the government he supposedly heads, there must be consequences. One lesson of history is that democracies must be willing to defend themselves. Letting would-be authoritarians walk away and try again only validates anti-democracy propaganda: that democracies are fundamentally weak, and that advocates of democracy secretly admire and envy the self-styled Leader and his followers for their love of country and the courage of their convictions. “If we got away with this,” the anti-democratic forces wonder, “what else can we get away with?”

So count me among those who approve of both these stories. But at the same time, I recognize that each offers our constitutional republic only a short-term salvation. The longer-term problem is the widespread perception that our system is not working, and that it grows more dysfunctional year by year. If Trump is convicted, American fascism might be stuffed back into its box for a few years. And if Biden uses his powers wisely, he may spark a short-term rise in the nation’s self-confidence. Certainly, he should be able to quickly reverse the corrosive effect of the last year, when our president appeared to have lost interest in a plague that killed (and continues to kill) thousands of Americans each day.

But long-term, the health of any democracy relies on public faith in one simple idea: The most effective and most legitimate way to seek change is to convince other citizens to agree with you, so that the public will elect a government that will achieve the changes you seek. Conversely, a democracy is in trouble if its citizens begin to see elections as empty spectacles that change nothing.

Now it only takes 60 votes, but the same principle applies.

Legislative failure. In the past several cycles, Democrats and Republicans have each won wave elections that left the party in control of the presidency and both houses of Congress. But neither produced an FDR- or LBJ-like list of legislative accomplishments. Instead, each managed only one big thing: ObamaCare for the Democrats and the Trump tax cut for the Republicans.

In spite of broad support from their voters, the Democrats couldn’t pass cap-and-trade to fight climate change, ObamaCare’s public option, any significant gun control, or immigration reform. Republicans couldn’t repeal ObamaCare, pass an infrastructure program, or fund Trump’s wall.

Voters on both sides were left wondering: What was all that for?

Admittedly, both parties faced obstacles beyond the Senate filibuster. Obama thought he had more time: His filibuster-proof 60-Democrat Senate didn’t last two years, but only half a year; Republican lawsuits delayed Al Franken’s arrival in the Senate until July, and the next January the Democrats unexpectedly lost the Massachusetts seat vacated when Ted Kennedy died. (Only a parliamentary maneuver allowed ObamaCare to become law.)

Trump’s GOP suffered from a lack of real programs to pass. “Repeal and replace ObamaCare” turned out to be an empty slogan; neither Trump nor any other Republican had a replacement plan, and three Republican senators wouldn’t vote for repeal without one. Trump eventually announced an infrastructure plan, but couldn’t get his own party to buy into it.

Each party suffered from the implacable opposition of the other. It is striking to look back at big legislation of the past. Medicare got 70 votes in the Senate, including 13 Republicans. Social Security got 77 votes (16 Republicans), and the Voting Rights Act got 77 (30 Republicans; the main opposition came from Southern Democrats). The National Environmental Protection Act (which, among other things, established the EPA) passed unanimously. But both ObamaCare and the Trump tax cut were party-line votes.

In part, the polarization of the Senate is due to the polarization of the voters. But the polarization of each party’s special interests is also an important factor. Polls show considerable bipartisan support for giving some kind of legal status to the Dreamers (undocumented immigrants brought into the US as children, many of whom remember no other country), for simple gun-control measures like universal background checks, for limits on medical malpractice lawsuits, and a number of other measures. But base voters oppose them, and so do organizations like the NRA or the National Trial Lawyers. So they don’t pass, to the great frustration of the majority of Americans.

Issues that used to be negotiable have now been cast as matters of principle. Republicans cannot support any tax increase, no matter what concession they might get in exchange. Many Democrats draw a line in the sand on entitlement reform. As recently as 2013, the Senate could pass a bipartisan immigration reform bill. But today that bill (which might also have passed the House if Speaker Boehner had allowed a vote) seems like a relic from a bygone era.

But all these factors come back to how easy it is to block things in the Senate. In a polarized environment with powerful special interests, it’s hard to get 60 votes for even the most popular bills. One of the levers that previously induced senators to compromise was the argument: “This bill is going to pass anyway. You might as well get on board and see if you can win any concessions in exchange for your support.” (This still works for must-pass bills like the ones that keep the government open.) But if the bill is likely not going to pass, why risk the attack ads that a yes-vote might generate?

Filibusters have become the rule, not the exception. The filibuster has existed since a rule change in 1806, which is sometimes blamed on the villainous Aaron Burr. It is not in the Constitution. On the contrary, the Constitution explicitly requires Congress to have supermajorities only for a few highly significant actions: removing a President or other official via impeachment, passing a constitutional amendment, and ratifying a treaty. But the Founders never intended a supermajority requirement to apply to ordinary legislation. In Federalist #22, Alexander Hamilton railed against those who would ask for a supermajority provision:

The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

… When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Filibusters were purely theoretical until the 1830s, and fairly rare thereafter. The Senate tended to think of itself as a gentlemen’s club; grinding business to a halt was ungentlemanly behavior. For years, filibusters were reserved for only the most important issues. For example, Southern senators used them to stifle civil-rights legislation, which they saw as a direct threat to the white supremacist society of the Jim Crow states. (Filibustering was, in essence, an alternative to seceding again.) But then the frequency of filibusters took off.

https://www.motherjones.com/kevin-drum/2013/11/charts-explain-why-democrats-went-nuclear-filibuster/

Today, the press simply takes for granted that everything will be filibustered, and routinely reports that it takes 60 votes to get anything through the Senate. For example, the post-Sandy-Hook-massacre effort to get background checks through the Senate failed 54-46, with the 54 voting for it. This was reported as if it were business as usual. Effectively, the Senate now has the supermajority requirement that Hamilton so opposed, with exactly the unfortunate results he predicted.

Spreading effects of Congressional dysfunction. People from both parties (or neither) frequently complain about two other unfortunate trends in American governance: the imperial presidency and the ever-expanding reach of the Supreme Court. Both of these developments are promoted by the dysfunction of Congress.

Increasingly, presidents push the boundaries of executive orders. It’s easy to criticize Trump’s excesses, like the phony emergency he declared in order to redirect money to his border wall. But it’s also instructive to note Obama’s overreaches, like DACA, which protected the Dreamers from deportation and allowed them to work legally, and the DAPA program that would have covered parents of American citizens if the Supreme Court had allowed it.

In Obama’s remarks announcing DACA, he pleaded for Congress to turn a popular cause into a law.

Now, let’s be clear — this is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. … Precisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. And we still need to pass comprehensive immigration reform that addresses our 21st century economic and security needs.

He stretched the power of executive orders because the American people supported something that Congress refused to do, or even bring to a vote. This is a common pattern in executive orders: Something needs to happen and Congress is log-jammed, so the president just does it on dubious authority.

Trump’s trade wars followed the same pattern. Tariffs are supposed to be set by Congress, but an obscure and seldom-used clause of a law delegated that power to the president under extreme circumstances. Trump decided those conditions were met and abused this power. But getting tougher on foreign imports was popular, so Congress did nothing to reclaim its prerogatives.

Much judicial overreach is similar. Take, for example, John Roberts’ rewrite of the Affordable Care Act. He was part of a conservative majority that ruled (wrongly, in my opinion) that the law’s insurance mandate couldn’t be justified by previous Supreme Court interpretations of the Constitution’s interstate commerce clause. Roberts, however, recognized that Congress has sweeping constitutional power to tax, so he reinterpreted the mandate’s penalty as a tax, allowing ObamaCare to stand.

In earlier eras, the Court might simply have voided the law, but delayed the implementation of its ruling to allow Congress to adjust. After a simple legislative fix — change the word “penalty” to “tax” — the program would have gone forward. But Roberts knew that in the current era, legislation only passes when the planets align. Voiding ObamaCare for any reason would have meant ending it for the foreseeable future. He wasn’t willing to be the reason why tens of millions of Americans lost their health insurance, so instead he rewrote the law himself.

A similar pattern accounts for the various administrative changes Obama made during the implementation of the ACA. It is common for big new programs to need fine tuning, because nothing complicated ever works exactly as its designers expect. In past eras, Congress would quickly pass such changes, recognizing that they improved an ongoing program. But ObamaCare’s opposition wanted to see it crash, and would not allow any legislative fine tuning. So Obama stretched his executive power to make the program work.

In the Founders’ vision, Congress is the vehicle for channeling public opinion into action. But that channel is blocked, so the other branches of government expand their power to compensate. This is not healthy for democracy: The expanding power of the president tilts us in the direction of an elected dictatorship, while the the Supreme Court’s extended range of action removes power from the political system entirely. But complete inaction in the face of well-recognized problems is also not healthy for democracy.

Stop the decay. The danger in this process should be obvious, because we see it happening all around us: People are becoming more cynical, and losing faith in the power of their vote. If passing, say, Medicare for All requires electing 60 Democratic senators, what’s the point of trying? Even expanding ObamaCare is more likely to happen via a Biden executive order than by an act of Congress. And if you oppose that executive power grab, you will look to the Supreme Court to save you, not Congress.

The filibuster is far from the only anti-democratic provision in our system. The Senate itself allows a collection of small states that represent far fewer than half the country to gain control. The Electoral College makes it possible for a minority to elect the president. Gerrymandering and voter suppression make the House undemocratic.

But the simplest and most direct way to restore the vitality of Congress is to end the filibuster. If you can convince enough people to agree with you to elect majorities in both houses, you should be able to get legislation passed. If that legislation turns out badly, a new majority should be able to get it repealed. That’s what makes elections meaningful.

If elections stop being meaningful, people will not stop seeking change. They’ll just have to promote it through undemocratic means. Eventually, a Caesar will come and sweep the whole jammed system aside. And the People will probably cheer, just as the People cheered Caesar.

The Orwellian Misuse of “Orwellian”

TrumpSpeak sends the word’s original meanings down the memory hole.


A theme I return to now and then is how the Right takes a word that has been effectively used against it and breaks that word through repeated misuse. I’m not sure when this practice began. Probably it had already been going on for some while before I noticed it; I was reading Jonah Goldberg’s Liberal Fascism, a 2008 book whose apparent purpose is to destroy any notion a reader might have of real fascism. (Did you know Hitler was a vegetarian? Take that, liberals!)

Word-breaking doesn’t always work — the Bush administration and its apologists never did completely break the word “torture” — but far too often it does. One of the great recent successes of conservative word-breaking is “fake news“, a once-useful term that originally referred to serious-looking links invented to be social-media clickbait and attributed to websites that purported to be newspaper sites, but weren’t. (For example, there is no Denver Guardian.)

Donald Trump’s 2016 campaign was a major beneficiary of viral fake news, like the Denver Guardian’s “FBI agent suspected in Hillary email leaks found dead in apartment murder-suicide” which was shared on Facebook more than half a million times, in spite of being a complete fiction that had been reported by no actual news organizations. Promoting fake news was, in fact, one of the primary ways Russia supported Trump. Obviously, this wasn’t something Trump wanted people to talk about, or even think about. Something had to be done.

So by repeated misuse, Trump captured “fake news” and redirected it to refer to accurate news stories he didn’t like. As a result, “the fake-news media” no longer brings the Denver Guardian to mind. Instead, it now encompasses The Washington Post, The New York Times, and CNN.

Today, if you use “fake news” in its original sense, no one will know what you mean. Mission accomplished.

https://www.centralmaine.com/2019/12/18/todays-editorial-carton-5/

We’re currently witnessing a multi-year campaign to break “socialism“, a word George Orwell sometimes used to describe his own political philosophy. But in a world where Joe Biden and Jon Ossoff are “radical socialists”, how can you even start a conversation about public ownership of the means of production? Such a thoughtcrime is not yet impossible, but it is becoming increasingly difficult.

https://www.laprogressive.com/socialism-stigma/

“Religious freedom” and “religious liberty” are likewise broken. Now they primarily refer to Christian privilege. So Christians can ignore anti-discrimination laws because they have “religious liberty”. Meanwhile, the rest of us only have “religious liberty” in situations where conservative Christians agree with us. For example: A Christian pharmacist’s “religious liberty” is violated if he has to fill a birth-control prescription, and so a pharmacist of some other religion might claim a similar privilege. On the other hand, a Hindu waitress who doesn’t want to serve steaks should just find another job; firing her would not create any kind of religious-liberty issue.

But the latest word the Trump and his allies are trying to break is particularly ironic: “orwellian”. Vox explains:

When Josh Hawley and Trump Jr. use the term “Orwellian,” they are indulging in precisely the kind of lazy and dishonest obfuscation Orwell railed against. They are taking the haze of imprecise associations that have accumulated around the word — bad, dystopian, someone somewhere overreaching probably? — and trying to attach them to such urgent issues for human rights as a politician losing his book contract after a scandal and the most powerful man in the world getting kicked off a social media platform. They are, to put it in terms of which Orwell would approve, lying. They are pretending that very reasonable actions from private corporations are the same as the government kidnapping citizens and shoving their faces into cages full of rats to brainwash them. And they are trying to convince their followers to pretend the same thing, until the pretense becomes real and everyone agrees to believe the lie. [links added]

Originally, “orwellian” had a variety of related meanings, all of which derived directly from George Orwell’s dystopian classic 1984. The word might, for example, refer to a bold lie that completely inverts the truth, like the 1984 party slogans: “War is Peace. Freedom is Slavery. Ignorance is Strength.”

Rudy Giuliani’s statement “Truth isn’t truth” — which supposedly explained how an honest man like Trump might commit perjury if he testified under oath — is orwellian in this sense. But so is Trump’s claim that Democrats are stealing the 2020 election, because that claim is itself the center of Trump’s attempt to steal the 2020 election. The related lie that Democratic “election fraud” centered in majority-Black cities like Detroit, Atlanta, and Milwaukee is similarly orwellian, because inner-city Blacks are precisely the people most likely to be disenfranchised by Republican tactics like gerrymandering and voter suppression.

“Orwellian” might also legitimately refer to an authority’s demand that you believe what you are told rather than what you can see for yourself. That usage derives from this 1984 quote:

The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.

So Trump was being orwellian when he told a VFW convention: “Just stick with us, don’t believe the crap you see from these people, the fake news. … Just remember, what you’re seeing and what you’re reading is not what’s happening.”

But probably the purest meaning of “orwellian” would apply to the process I’m describing here: breaking a word so that the idea it once captured so well becomes inexpressible. As Orwell wrote in “The Principles of Newspeak“:

The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. … This was done partly by the invention of new words, but chiefly by eliminating undesirable words and by stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meanings whatever.

If Trump and his allies succeed in breaking “orwellian”, they will have gone a long way towards removing this thought from the public mind. Then “orwellian” will have lost all substantive content, and will simply become a way to cast shade: “You said something I don’t like.”

And we will have lost any term that expresses what just happened.

The Capitol Invasion is Both an End and a Beginning

Naive Trumpism is dead, but the right-wing insurrection is just getting started.


A history of violence. Of course the Trump administration would end in violence.

Trump’s brand of populism has had a violent undercurrent from the beginning, and Trump himself has done little to reject that tendency or even tone it down. Only a couple months after he descended the escalator in 2015, he made excuses for two of his fans beating a homeless Hispanic man with a metal pole, describing his supporters as “very passionate … They love this country and want it to be great again.” When neo-Nazis chanted racist and anti-Semitic slogans in Charlottesville, and one of them murdered a counter-protester, he talked about the “very fine people on both sides“. He gave a presidential shout-out to Kyle Rittenhouse’s self-defense claim, ignoring the fact that people were chasing Rittenhouse because he had already killed someone.

I won’t attempt a more complete accounting of Trumpist violence — the guy who mailed all the pipe bombs, the guy who took Trump’s “invasion” rhetoric so literally that he murdered Hispanics in an El Paso mall, the plot to kidnap Michigan’s governor — because Vox already did that.

Of course, politicians never have complete control over their followers. But there are responsible and irresponsible ways to react when your people cross the line. Bernie Sanders, for example, said this in 2017:

I have just been informed that the alleged shooter at the Republican baseball practice is someone who apparently volunteered on my presidential campaign. I am sickened by this despicable act. Let me be as clear as I can be: Violence of any kind is unacceptable in our society and I condemn this action in the strongest possible terms. Real change can only come about through nonviolent action, and anything else runs against our most deeply held American values.

You will search in vain for a similarly unequivocal rejection by Trump of pro-Trump violence. After a plot to kidnap Michigan Governor Gretchen Whitmer was foiled, Trump muddied his denunciation of the plot with criticism of Whitmer and an endorsement of the plotters’ political goals.

I do not tolerate ANY extreme violence. Defending ALL Americans, even those who oppose and attack me, is what I will always do as your President! Governor Whitmer — open up your state, open up your schools, and open up your churches!

Occasionally, handlers have pressured the President into putting some kind of distance between himself and the most thuggish elements of the MAGAverse. But his heart has never been in it — such statements became known as Trump’s “hostage videos” — and he would quickly walk them back with much more fervor, lest any of his brownshirts feel unappreciated.

And then he lost the election.

It wasn’t close. Biden’s 7-million vote victory wasn’t quite as big as Obama’s 2008 landslide, but before that you have to go back to Bill Clinton in 1996 to find a similar margin. The Electoral College rigs presidential elections in Republicans’ favor, but even that outcome was convincing: 306-232. The media’s delay in calling the election was due to the Covid pandemic and the number of mail-in votes, not any narrowness in the results.

Trump has long threatened violence if he didn’t get what he wanted. In March of 2016 he warned that “you’d have riots” if the Republican Party found a way to deny him the nomination. That fall, he would only commit to accepting the election results “if I win“. Asked in September of 2020 if he would commit to a peaceful transfer of power in case he lost, Trump replied “We’ll have to see what happens.” When challenged to break with the violent white-supremacist Proud Boys, Trump told them to “stand back and stand by“.

Stand by for what? Wednesday we found out.

https://theweek.com/cartoons/958759/political-cartoon-trump-georgia-call

The Big Lie. Even more pronounced than his affinity with violence has been Trump’s habit of saying things because he wants them to be true, a self-serving exaggeration of the power-of-positive-thinking religion he was raised in.

Some of his self-flattering fictions have been petty and inconsequential, like his insistence that his inaugural crowd was larger than Barack Obama’s. Others have been more significant, like his claim that 3-5 million non-citizens voted illegally in 2016, a total that conveniently accounted for Hillary Clinton’s margin in the popular vote. He wanted the Mueller report to “totally exonerate” him, but it did not. And we will never know exactly how many additional Americans died because of Trump’s lies about the coronavirus — that it was just the flu, that doctors inflated the death statistics, that it was under control, that masks don’t work, that business closures aren’t necessary, that hydroxychloroquine is a miracle cure — but it’s probably in the tens or hundreds of thousands.

Among his tens of thousands of lies since taking office, his claim that he won “by a landslide” in the election that he actually lost by a wide margin, but that his victory was “stolen” from him by Democratic fraud, was Trump’s Big Lie, the kind of lie Hitler described in Mein Kampf.

in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying.

Historian Timothy Snyder made the connection to the current situation:

The force of a big lie resides in its demand that many other things must be believed or disbelieved. To make sense of a world in which the 2020 presidential election was stolen requires distrust not only of reporters and of experts but also of local, state and federal government institutions, from poll workers to elected officials, Homeland Security and all the way to the Supreme Court. It brings with it, of necessity, a conspiracy theory: Imagine all the people who must have been in on such a plot and all the people who would have had to work on the cover-up.

Trump’s electoral fiction floats free of verifiable reality. It is defended not so much by facts as by claims that someone else has made some claims. The sensibility is that something must be wrong because I feel it to be wrong, and I know others feel the same way. When political leaders such as Ted Cruz or Jim Jordan spoke like this, what they meant was: You believe my lies, which compels me to repeat them.

Trump was already setting up this lie before the election even happened, telling his supporters that he could only lose by fraud, and that voting by mail was inherently rife with fraud. On election night, he falsely claimed victory, and subsequently, as recounts, hand recounts, signature audits, and every other kind of verification knocked down his baseless allegations, his claims just got wilder. In the January 6 speech that sent the mob heading towards the Capitol, he told lies already long refuted: that in Pennsylvania “You had 205,000 more ballots than you had voters.” In Detroit, “174,000 ballots were counted without being tied to an actual registered voter.”

The conspiracy to deny him a second term grew and grew: It now had to include not just Biden’s people, not just Democrats, but his own appointees like Christopher Krebs and Bill Barr, Republican election commissioners, Republican secretaries of state and governors, and ultimately even Mike Pence.

The attack on the Capitol. Even the most talented liar sometimes faces a confrontation with reality that can’t be explained away. A key part of Trump’s Big Lie wasn’t just that he should have won, or that the Democrats had stolen the election, but that they would not get away with it. The fraud would be exposed, the election results reversed, and a Trump second term inaugurated on January 20.

Something had to give eventually, because on January 20 Trump either would or wouldn’t start a second term. For two months, the date of MAGA salvation kept getting pushed back and the mechanism changing. At first, the story was that Trump’s election-night lead in key states would hold. When that didn’t happen, he claimed that the states would refuse to certify Biden’s win. When they did — even the ones like Georgia and Arizona with Republican officials — he said the courts would intervene, culminating in a showdown before a Supreme Court with three Trump appointees and a 6-3 Republican majority. When the Supreme Court wanted no part of his scheme, he told his followers that Republican state legislatures would throw out the elections and appoint Trump electors. But on December 14, Biden’s 306 certified electors voted, and there was only one remaining possibility to overturn the People’s will: when Congress counted the electoral votes on January 6.

At that point, new elements of the fantasy emerged: Congress had the power to throw out a state’s certified electoral votes, in spite of the 12th Amendment, which empowers it only to “open” and “count” the votes sent by the states. As the official presiding over this opening and counting, Vice President Pence had the power to recognize alternative slates of Trump-supporting electors — a power that, if it existed, would guarantee that no party in power ever lost the White House. In 2001, Al Gore could have recognized the Democratic electors from Florida and declared himself president. Joe Biden could have tossed Trump’s slates in 2017 and appointed Hillary Clinton.

Imagine that you believed all this nonsense, and think about how your anger might have risen as you heard that Mike Pence was refusing to exercise his power to count the votes however he wanted, and Mitch McConnell would not rally Republican senators to “stop the steal” of Trump’s landslide. Cowardly Republicans refused to seize this moment, and instead would let Joe Biden’s radical socialism destroy America.

Unless the People rose up.

From the beginning, Trump’s January 6 “Save America” rally had violence written all over it. When Trump promoted it in a December 19 tweet, he said “Be there, will be wild!” After Trump stooge Louie Gohmert lost his insane lawsuit to disenfranchise millions of Americans, he said the court’s message was “You have to go to the streets and be as violent as antifa, BLM.” Violent pro-Trump groups plotted openly on social media platforms.

More than 80% of the top posts on TheDonald on Wednesday about the Electoral College certification featured calls for violence in the top five responses, according to research from Advance Democracy, an independent, nonpartisan organization. And it wasn’t just fringe websites. On Twitter, Advance Democracy found more than 1,480 posts from QAnon-related accounts about Jan. 6 that contained terms of violence since Jan. 1. On TikTok, videos promoting violence garnered hundreds of thousands of views.

Trump certainly could or should have known all this when he spoke to the crowd he had assembled and instructed it to march on the Capitol. Quite likely he did know. But he spoke to rile the crowd up, not to keep it under control. After the violence began, he resisted for hours requests that he call the mob off. When he did ask them to go home, he did not denounce what they had done, but repeated the Big Lie that motivated them.

We now know that the incident could have been far worse than it actually was. A scaffold was set up, and some of the invaders chanted “Hang Mike Pence.” They killed a Capitol policeman. What might they have done if they’d gotten hold of people Trump frequently has demonized, like Speaker Pelosi or Rep. Adam Schiff?

They went into the Capitol, as Congress was counting electoral votes, equipped to take hostages—to physically seize officials, and presumably to take lives. … If the rioters had been a little quicker through the doors; if senators and representatives hadn’t just moved from their joint session into separate chambers to debate the Arizona challenge and had instead still been packed into one harder-to-evacuate room; if any number of things had happened differently, the three people next in the line of succession for the presidency might have been face to face with those zip-tie guys. And then: Who knows.

The Republican divide. The overt violence at the Capitol, putting the lives of even Republican members of Congress at risk, means that it is no longer possible to ignore what Trumpism is. “Naive Trumpism”, the idea that Trump throws a lot of red meat to his base, but that traditional Reagan/Bush Republicans can work with him within the constitutional order to cut taxes and appoint judges, is dead now. If you’re still a Trumpist today, you support ending democracy and overthrowing the constitutional order.

Historian Timothy Snyder divides the GOP into “gamers” (like Mitch McConnell) and “breakers” (like Trump).

Right now, the Republican Party is a coalition of two types of people: those who would game the system (most of the politicians, some of the voters) and those who dream of breaking it (a few of the politicians, many of the voters). In January 2021, this was visible as the difference between those Republicans who defended the present system on the grounds that it favored them and those who tried to upend it.

Until Wednesday, opportunists like Ted Cruz and Josh Hawley could blur that distinction and appear to be on both sides. Going forward, such a position will no longer be tenable. The people who invaded the Capitol are either freedom fighters or traitors. There is no middle ground.

Democracies have to defend themselves. This is one of the lessons I glean from my reading about Hitler’s rise to power. The Weimar Republic fell, at least in part, because it lacked the will to defend itself, or to defend the government’s monopoly on the use of force. Hitler himself first drew national attention by leading the Beer Hall Putsch in Munich in 1923. It was his first attempt to take power, and it earned him a five-year sentence for treason. He was released after nine months, having learned that treason against the democratic government was just not that big a deal.

In subsequent years, brownshirt violence was often winked at by German law enforcement, which tended to be conservative and to dislike the same people the Nazis were beating up. Similarly Wednesday, while most police at the Capitol risked their lives to defend Congress, at least a few policemen seemed to be on friendly terms with the invaders.

The Capitol Insurrection may mark the end of naive Trumpism, and split the GOP into gamers and breakers. But it also marks the beginning of a darker campaign of right-wing violence that the Biden administration will have to confront. We don’t know what further violence may erupt on Inauguration Day, or between then and now. But the end of Trump will not be the end of the movement. The Whitmer kidnapping plot may be a model for future actions, and I’m sure others have noticed that a 50-50 Senate can be flipped back to Republican control with a single bullet.

Paul Krugman’s first column after Wednesday’s riot didn’t invoke Hitler or the Nazis by name, but warned:

if history teaches us one lesson about dealing with fascists, it is the futility of appeasement. Giving in to fascists doesn’t pacify them, it just encourages them to go further.

I hope Joe Biden has learned that lesson.

Sedition and Free Speech

Conservatives are claiming that companies like Amazon and Twitter are violating their First Amendment rights. They’re wrong, but their situation points to a deeper problem in our public discourse.


The First Amendment says that the government can’t punish you for speaking your mind. It doesn’t say that anyone in the private sector has to maintain their relationships with you if you say something they don’t want to be associated with. I find this analogy useful: Free speech is like a bar you can drink at. But no one has to sit next to you, listen to what you say, or join in when you start singing.

In particular, a number of US corporations have decided that their brands would be damaged by association with the invasion of the US Capitol and the attempt to maintain Trump in office by force.

And so Josh Hawley, the Fascist senator from Missouri (F-MO), lost his book contract with Simon & Schuster after he raised his fist in support of the violent mob that was about to invade his workplace. His Twitter bio describes him as a “constitutional lawyer”, so he must understand that what he tweets here to “the woke mob at @SimonSchuster” — a metaphoric mob as opposed to the literal mob Hawley encouraged — is nonsense:

This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It’s a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don’t approve of. I will fight this cancel culture with everything I have. We’ll see you in court.

The libertarian site Reason points out what should be obvious:

Hawley has no right to publish a book with Simon & Schuster, using Simon & Schuster’s resources, without Simon & Schuster’s consent. … In light of this, there is nothing Orwellian about any part of this episode. We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don’t want to associate with us.

In a similar but more significant case, Twitter decided it didn’t like seeing its platform used to foment insurrection against the United States, and so it removed Donald Trump’s account “due to the risk of further incitement of violence”.

Trump tried to get his tweets out through other accounts, which Twitter shut down in whack-a-mole fashion. “If it is clear that another account is being used for the purposes of evading a ban, it is also subject to suspension.”

After Facebook decided that some conservative users were consistently violating its “community standards” (which I also occasionally run afoul of, for reasons that escape me), many of them emigrated to Parler, a social media platform more accepting of racism and incitement of violence. Much of the planning for the Capitol riot apparently happened over Parler, though much of the really violent stuff was discussed on sites like TheDonald.win, where people are still calling for Trump to declare martial law and stay in power by force. In a visit of less than a minute, I noticed this:

State legislatures failed, governors failed, secretary of states failed, judges failed, congress failed and the highest court in the land failed. If there was ever a time to use the Insurrection Act right now would be arguably the reason why we have it.

Again, major corporations don’t like being associated with fascist insurrection. So Google and Apple removed the Parler app from their app stores, making it hard for new users to join. But the big blow came when Amazon Web Services (AWS) decided to stop hosting Parler’s site.

AWS provides technology and services to customers across the political spectrum, and we continue to respect Parler’s right to determine for itself what content it will allow on its site. However, we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others. Because Parler cannot comply with our terms of service and poses a very real risk to public safety, we plan to suspend Parler’s account.

As a result, Parler CEO John Matze estimates that the site could be offline for about a week, while it rebuilds its infrastructure. Like Hawley, he protests against censorship.

Concentration, not censorship. There actually is an issue here, but has nothing to do with the First Amendment. It’s antitrust and monopoly, a topic that fits badly inside a conservative worldview that makes a fetish of the “free” market.

The national discourse now depends on a fairly small number of corporations like Apple, Google, Amazon, Facebook, and Twitter. If you look beyond the internet and social media, the number doesn’t get much bigger: Disney, Time-Warner, AT&T, Comcast, ViacomCBS, and a few others control the major TV networks and most of the major magazines. Local newspapers and TV stations have been gobbled up by chains like Gannett and Sinclair, and few newspapers beyond The New York Times, The Washington Post, and The Wall Street Journal have national scope or a national readership.

The problem isn’t “censorship” or “media bias” however you interpret those terms. And it’s not targeted at conservatives, in spite of all their whining and howling. (I believe that if Biden ends his term by attempting a violent coup, Twitter will probably shut him off as well.) The problem is that we have allowed our media infrastructure to develop choke points, which are controlled by corporations or individuals whose interests are not necessarily the public interest, and whose decisions are beyond public appeal.

That’s a complex problem that can’t be solved by a lawsuit or a new interpretation of the First Amendment. It’s going to require some real thought and some wise public policy.

Democracy and free speech. The essence of the problem is that the relationship between democracy and free speech has changed in recent years. Rather than Orwell’s totalitarian nightmare of too little speech, where no one is in a position to contest the government’s narrative, we now arguably face too much speech. “The Truth is Out There” according to the poster in Fox Mulder’s office, but how will you find it, or recognize it when you do? Disinformation has replaced ignorance as the primary threat to democratic public discourse. Truth is not kept secret so much as buried under mountains of bullshit.

Thomas Edsall discusses the problems (but offers little in the way of solutions) in “Have Trump’s Lies Wrecked Free Speech?” My own view, which still needs a lot of work to flesh out, is that we are experiencing a market failure in the marketplace of ideas. (I believe this novel application of the term “market failure” comes from Richard Hasen, whose book Cheap Speech should be worth reading when it comes out.)

The original theory of free speech and its role in a democracy is that Truth eventually wins out in the marketplace of ideas, if it is allowed to compete. That seems to be in doubt now.

But the marketplace of ideas, like all markets, is a human construction, not something that occurs naturally. Markets work or don’t work depending on how they’re set up. The marketplace of ideas, as currently constituted, is not working. Edsall quotes Lawrence Lessig:

There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.

It’s still possible to imagine a world where Truth rises to the top and disinformation sinks out of sight — maybe by some crowdsourced method rather than by the decision of either a government bureaucrat or an officer of some corporate monopoly. It’s possible to imagine a world where people are encouraged to feed their minds a healthy diet of information with some relationship to facts and logic, rather than violence-inducing conspiracy theories. But such a model will need to be constructed, promoted, and consciously chosen. Simply wishing we had one will not be enough.

The Yearly Sift 2020: Themes of the Year

The Primary Theme of 2020: Survival

2020 was a year of too much news. Frequently in the Monday morning teasers, I’d complain that there was too much to cover; I could barely find space to mention important developments that ordinarily would be the most important things happening in a week.

But how could they make it to the top of the stack when we were impeaching the president, or choosing who would run against him, or wondering if we could trust the polls saying he would lose, or preparing for his predictable outside-the-law attempt to hang onto power even though he did lose? Sometimes even those stories couldn’t make it to the top, because day after day, thousands of Americans were dying of a plague, most the rest of us were huddled in our homes trying to figure out how not to catch it, and as a result, the economy was collapsing.

The news in re-runs

It was all terribly serious, and yet somehow it was also just more of the same, week after week. In the April 27 teaser I complained:

[N]ews keeps going into reruns: more people are dead, Trump said something stupid, yada yada yada. It would be easy to put out the same weekly summary week after week, just updating the links to the current instances of the continuing narratives.

Looking back, it is striking how early the patterns emerged. On March 9 I commented on the administration’s lack of interest in stopping the carnage:

Complicating matters, our President shows more concern about the short-term effect on his popularity than about the lives of the people he leads.

And this observation came on April 13:

Trump’s announcements are meant to sound good in the moment, not to stand up to a month of scrutiny. So it’s practically cheating that NPR took a one-month-later look at the promises made when Trump declared a national emergency. He followed through on a few things, but most of the promises are still hanging. Remember all the big retail chains that were going to offer drive-through testing? And test-yourself-at-home kits? And the Google website that was going to coordinate everything?

The eventual course of the election campaign (and its aftermath) was already clear by May 18:

The impatient spoiled child you see trying to make the virus go away by shutting his eyes and holding his breath until he turns blue — that’s the only Trump there is. He doesn’t turn into Lex Luthor or Victor von Doom as soon as the subject changes to his re-election. That doesn’t mean we don’t have to worry about weird things happening later on, when he finally realizes that the electorate is going to vote (or already has voted) to throw him out. We have to be ready for the poorly planned tantrum he’ll throw then. But his screw-ups in the meantime are real screw-ups; they aren’t steps leading up to some final fiendish maneuver.

Eventually I realized that the two stories were really one big theme, which was survival: Would we, as individuals, survive the pandemic? Would our personal sanity survive it? And would American democracy survive Trump’s attempt to subvert it? When that thought came to me, and I started becoming confident that survival was in the cards both for me and for my country, I asked Jennifer Sheridan over at Democracy Tees to make me a “Democracy & I Survived 2020” t-shirt. (You can get one too. I don’t get any kickback from your order, but the ACLU does.)

Democracy‘s survival

I don’t think it’s an overstatement to say that democracy was at risk this year. Trump was impeached because he abused his power to cheat in the campaign, threatening to withhold aid from Ukraine unless it manufactured an investigation to justify Trump’s claims of wrongdoing against Biden.

The Senate’s acquittal of Trump along party lines (but for Mitt Romney), and its party-line refusal (but for Romney and Susan Collins) to investigate the charges, gave Trump a blank check to continue abusing power for political gain, which he did. Witnesses who told the truth to Congress were removed from their positions. Attorney General Barr stymied all attempts to investigate Trump for corruption, and interfered with the prosecutions of Trump conspirators Michael Flynn and Roger Stone, both of whom Trump eventually pardoned. A phony investigation-of-the-investigators sent a message to the FBI to stay away from Trump and his allies, lest they find themselves in the crosshairs. As the election approached, Trump made a long series of false claims about mail-in voting, in preparation for claiming the election was invalid. He even sabotaged the Post Office to keep ballots from arriving on time.

https://www.cagle.com/author/dave-whamond/

The extent of his disdain for democracy became even more apparent after the election, when he has falsely claimed victory, falsely sown doubt about the vote-counting process, pressured election officials at all levels to keep him in power in spite of the voters, tried to get the Supreme Court and Republican state legislatures to install him for a second term, floated the idea of declaring martial law, and encouraged (or at least has not discouraged) threats of violence against officials who insist on doing their jobs with integrity rather than giving him what he wants. Whether violence will result from his invitation for his supporters to descend on Washington as Congress counts the electoral votes on January 6 is still an open question.

Imagine if these efforts to disregard his defeat had actually worked — as they might have if Biden had won by a smaller margin. All future elections would be in doubt. Political speculation wouldn’t stop at whether the incumbent would lose, but would also have to consider whether he would allow himself to lose. Voters would no longer wield the power to remove a president from office; instead, we could only request that the president please leave.

https://jensorensen.com/2020/01/28/cartoon-impeachment-trump-show-trial/

In this context, it’s worth recalling the final featured post of 2019, “The Decade of Democracy’s Decline“, which puts Trump’s assault on the election in a larger context: For years, Republicans have been drifting away from democracy and embracing tricks for staying in power despite getting fewer votes than their opponents. In the most recent election cycles before 2020, Democrats got more votes than Republicans for the presidency, the House, and the Senate — but they only gained control of the House. (Republican control of the presidency and the Senate has also given them control of the Supreme Court.) Gerrymandering has made Republican majorities in some state legislatures (including Wisconsin and Pennsylvania, where Trump tried to get the legislature to appoint his electors rather than the ones the voters chose) all but impervious to the public’s will.

That post also noted the GOP’s increasing tolerance for authoritarian measures, like Trump funding his wall by using emergency powers in defiance of Congress’ power of the purse. His unleashing masked federal police on Portland was still in the future, but would fit right in. “The Decade of Democracy’s Decline” warned:

It’s a mistake to brush off what Trump clearly says he wants to do. … What Trump tells us every day in his tweets and at his rallies is that people who oppose him should be punished. Hillary should be in jail; Adam Schiff should be handled the way they do in Guatemala; Rep. Omar should be sent back where she came from; the [Ukraine phone call] whistleblower and his sources are “spies” who should be subject to the death penalty.

2020 posts raising some of the same themes were “The Illegitimacy of a Conservative Supreme Court“, “Accelerating Corruption and Autocracy“, and “What Makes Trump an Autocrat?“.

Survival with Sanity

Almost as important as staying alive and healthy during 2020 was staying sane. Trump was doing his best to make us crazy, and sometimes speculation from his opponents also raised unnecessary panic. The trickiest thing about being a citizen this year was maintaining the appropriate level of anxiety: alert and ready to act, but neither shivering in fear nor running around like a headless chicken.

Trump’s acquittal by the Senate was a moment that lent itself to panic, so I wrote “Let’s Talk Each Other Down“.

There’s been no lack of stuff to freak out about, if that’s what you feel inclined to do. You’re not wrong. I can’t tell you that all those horrors aren’t happening. But let me try to talk you down in a different way.

In general, people freak out for a very simple reason: They’ve been telling themselves “It’s all going to be OK” when they don’t really know that. When events start to crack that false sense of certainty, one natural reaction is to flip over completely to: “We’re all doomed.”

Allow me to point something out: You don’t really know that either.

… [T]ry to accept something: You don’t need to know that it’s going to be OK. … If you’re waiting for a guarantee, for a political almanac that will tell you exactly when the sun will rise and the tide will turn, you’ll keep waiting and you’ll do nothing. Don’t go that way.

Be hopeful. Throw your effort out there and see what happens. Because you never know.

I reprised those themes in September’s “Staying Sane in Anxious Time (without being useless)“, where I warned of the twin mistakes we could make in the election’s home stretch: burying our heads in the sand, or getting stuck in a high state of anxiety all the way to the election. My advice was to figure out what you were going to do about the election and then go do it. But when you weren’t in the middle of action, try to put the whole situation out of your mind. I also encouraged you not to enlarge Trump into a supervillain mastermind in May’s “Trump Has No Endgame“. In August, I evaluated disaster scenarios in “The Election: Worry or Don’t Worry?“. I think this quote holds up well:

Here’s something I have great faith in: If the joint session of Congress on January 6 recognizes that Joe Biden has received the majority of electoral votes, he will become president at noon on January 20 and the government will obey his orders. Where Donald Trump is at the time, and whatever he is claiming or tweeting, will be of no consequence. If Trump’s tweets bring a bunch of right-wing militiamen into the streets with their AR-15s, they can cause a lot of bloodshed, but they can’t keep Trump in office. They are no match for the Army, whose Commander-in-Chief will be Joe Biden. So if Trump wants to stay on as president, he has to screw the process up sooner; by January 6, it’s all in the bag, and probably it’s all in the bag by December 14.

My election-eve commentary was confident but apprehensive:

Since Democrats have promoted early voting and voting-by-mail more than Republicans — in part because they take the pandemic seriously and Republicans do not — most likely the election-night totals will favor Trump, who will then try to declare victory and prevent further vote-counting.

I don’t expect that strategy to work, because Biden’s ultimate margin will be too big, and neither election officials nor judges are as corrupt as the GOP’s plan requires.

Post-election, I recognized the psychological adjustment I still need to make in “Can I Get Over Donald Trump?

Surviving Covid

For the most part I covered the pandemic in the weekly summaries, tracking case numbers and deaths, rebutting Trump’s false claims, commenting on the strains of staying home, and so on.

https://www.kentucky.com/opinion/editorial-cartoons/joel-pett/article241799911.html

Occasionally, I devoted a featured post to taking apart the details of something, like pointing out that “Trump’s Guidelines Aren’t What He Says They Are“. The actual administration guidelines for reopening a state’s economy (that came out in April) were fairly sensible, but didn’t match the President’s rhetoric at all. As I noted in the April 20 teaser:

If you want to be catty about this (and I guess I do) the guidelines are for people who read, and the rhetoric is for people who watch Fox News.

I also collected good information to try to separate it from the bad information, as in “Things We’re Finding Out About the Pandemic“. And I talked about the pandemic/economy interaction in “Economies Aren’t Built to Stop and Restart” and “What’s Up With the Stock Market?

Secondary Theme: Democratic Identity

The year’s most popular posts all had something to do with Democratic identity. In the Trump Era, it has been easy to be against Trump, and during the Democratic primaries it was easy to focus on the differences between candidates and miss the similarities. But I think we all had a yearning to be for something, and to enunciate just what that was. That accounted for “Ten Principles that Unify Democrats (and most of the country)” being the new post with the most hits this year (6.6K), and also for the second-most-popular “The Underlying Differences Between Liberals and Conservatives” (5.9K).

I think part of what made these posts appealing was the combination of positivity, generality, and down-to-earthness. Democratic candidates tend to get lost in their detailed proposals and not get around to simple principles like “If you’re willing to work hard, you should be able to find a job that pays a decent wage.” and “If you get sick, you should get the care you need, and your family shouldn’t have to go bankrupt paying for it.”

Statements like that are meaningless without some detailed plan to implement them. But at the same time, people need to understand what your fourteen-point-plan is trying to accomplish.

Identity issues were also key to the popularity of “In the Land of No We Can’t” and my attempt to understand the other side in “Opening Thoughts about the Trump Voter“.

As I look forward to the post-Trump era, I think we’re going to need to do a lot more of this kind of thinking, both about who we are and who the people on the other side are.

Beware of Bad Faith

Good-faith opposition has goals of its own, and is willing to give something up to achieve them. Bad-faith opposition has pretexts for saying No.


Back in 2009 … Twelve years ago, Americans unhappy with the recent election would soon begin organizing themselves to oppose the new Obama administration.

One of those organizations was a loose coalition of groups that eventually would call itself the Tea Party. It described itself as principled and politically independent: Neither Republicans nor Democrats, Tea Partiers were as upset with the excesses of the Bush administration as with Obama’s proposals. They opposed government spending and debt, supported liberty, revered the vision of the Founding Fathers, and wanted government to observe more strictly the limits on its power inherent in the Constitution. They viewed social-conservative wedge issues like abortion and gay marriage as distractions from their core mission: Stop the deficit spending that economists of the left and right alike said was necessary to get out of the Great Recession. Prevent the government takeover of healthcare Obama was proposing.

Another opposition group was the Oath Keepers. Ex-military folks, particularly those in law enforcement, recalled their oath to protect America “from all enemies foreign and domestic”. The new president, they implied (or sometimes said openly), was such an enemy, and they encouraged each other to resist gun confiscation and other unconstitutional orders that they were sure he would soon issue.

The media took groups like these at face value, but we now know their self-descriptions were bullshit. Some of the rank-and-file might have believed the hype, but at the top the Tea Party was a Republican rebranding effort coordinated nationally through FreedomWorks and funded by the Koch brothers. Once in office, the Tea Party Republicans (Ted Cruz and Mark Meadows, for example) became staunch culture warriors.

Eventually the movement morphed into the Trump campaign, and all its so-called “principles” were forgotten. If Trump wanted to keep the Obama economic expansion going by running a massive deficit, that was just dandy. When his masked federal police started scooping people up off the streets in Portland, the self-proclaimed defenders of liberty cheered. None of them, it turned out, really cared about the Emoluments Clause, or what the Founders would think about a President channeling millions of taxpayer dollars into his own businesses. If Trump wanted to usurp Congress’ power of the purse to build his wall, so be it.

Oath Keepers followed a similar trajectory. They continued to oppose Obama, even though the unconstitutional orders never came. And when Trump began to disregard laws of all sorts, they shrugged. If his effort to stay in office in defiance of the voters comes to armed revolt against the constitutional order, we know which side they’ll be on. Fundamentally, they’re not freedom fighters, they’re brownshirts.

Meanwhile in Congress, Republican leaders were already plotting their scorched-earth resistance to Obama on the night of his inauguration. Recall the situation: The economy was losing 800,000 jobs a month. The banks were insolvent. The auto industry was one of many headed for bankruptcy. No one could be sure whether this economic freefall would eventually turn out better or worse than the Great Depression. And in the midst of this unfolding disaster, their top priority was to prevent the new president from accomplishing anything. Talk-radio giant Rush Limbaugh said in public what Paul Ryan and Kevin McCarthy were saying behind closed doors: “I want him to fail.

As his administration unfolded, no compromise Obama could offer would ever be good enough. He based his healthcare plan on the one Mitt Romney passed when he was governor of Massachusetts — and Romney denounced it. John McCain voted against the McCain-Liebermann climate change bill. Obama offended large chunks of his own party by offering Social Security and Medicare cuts as part of a “grand bargain” to control the deficit Republicans were so worried about: They not only rejected it, but got rid of John Boehner for considering it.

Did we learn anything? So now here we are, 12 years later, nearing the start of a new Democratic administration. What should Joe Biden learn from this history? Josh Marshall suggests this:

This to me is the greatest negative lesson of the Obama era: the willing engagement of good faith with bad faith in which bad faith is, by definition, always the winner.

He points to ObamaCare, where

the White House spent about a year in a vain effort to convince some bipartisan senate “gang” to agree on a bipartisan plan. It was all one laborious, pitiful game of Lucy and her yanked away football, only played out with 60 and 70 and 80-something men. The actual bill was significantly watered down and enough time was wasted that Ted Kennedy’s illness, death and the subsequent special election to replace him in the Senate almost derailed the whole thing.

Republicans pocketed the time wasted and the concessions granted, walked away without providing any votes in support and then ran against Democrats for passing legislation on party line votes.

It’s already clear that Republicans are gearing up to run the same play again, this time against a smaller Democratic House majority and with either a Republican Senate majority or a 50/50 Senate. Suddenly, after a four-year bout of amnesia, Republicans have remembered that the national debt will bring down the Republic. After years of claiming that they hadn’t read the latest racist or fascist Trump tweet, they proclaim that Neera Tanden’s tweets disqualify her from being OMB director. Unmoved by video of Trump bragging about grabbing women by the pussy — and testimony from two dozen women that this was more than just talk — they are horrified that Biden’s Deputy Chief of Staff would say this:

The president-elect was able to connect with people over this sense of unity. In the primary, people would mock him, like, “You think you can work with Republicans?” I’m not saying they’re not a bunch of fuckers. Mitch McConnell is terrible. But this sense that you couldn’t wish for that, you couldn’t wish for this bipartisan ideal? He rejected that. From start to finish, he set out with this idea that unity was possible, that together we are stronger, that we, as a country, need healing, and our politics needs that too.

Jen O’Malley Dillon’s realistic assessment of what Biden faces met with this response:

“Biden Campaign Manager called us “Fers” !!!” wrote White House Press Secretary Kayleigh McEnany on Twitter. “She can try to walk back, but this says volumes about her boss who calls for “unity” while shouting that we are “assaulting democracy:” They think we are deplorable, irredeemable “Fers”. SICK!!”

Meanwhile, they’ve already started going after Biden’s family. Not just his son Hunter — that was predictable — but also his wife Jill, who has the audacity to be proud of the doctorate she earned. Not only did The Wall Street Journal attack her, but National Review followed up by calling her dissertation “garbage” — undoubtedly the first time NR has assessed an education dissertation. [1]

What passes as a “concession” from Republicans these days is when they choose to recognize reality. Mitch McConnell, for example, has finally conceded — after five weeks — that Joe Biden is the president-elect. Much of the GOP congressional delegation — including both senators facing runoffs in Georgia — isn’t willing to go that far yet. They are continuing to coddle Trump’s delusions of victory, even as he talks about holding onto power by declaring martial law and his supporters turn violent.

To sum up: Biden violates the “unity” he calls for if any of his people point out that Republicans have consistently operated in bad faith, or that Trump’s attempted coup is indeed an attack on democracy. The GOP’s side of the bargain seems to be that Republican congressional leaders have not personally committed any acts of violence yet. If sufficiently placated, they may eventually recognize that Biden is indeed president. It’s questionable whether they will provide the slightest help in digging the country out of the hole Trump has left it in.

Responses. How should Biden respond to this situation? On the one hand he is right when he says that the country needs to heal its partisan division and move forward together. On the other, if he accepts responsibility for Republicans’ refusal to play any part in that vision, they will keep moving the goalposts away as he approaches them.

As I wrote last week, Democrats should continue trying to understand the legitimate grievances and goals of Trump voters. There are 74 million of them, and many of them are having a tough time these days. In spite of what we’ve seen these last four years, Biden’s pledge to be the president of all the people is the minimum Americans should expect from their leader.

At the same time, he should not wait for GOP leaders to get on board, because they will keep him waiting merely for the sake of delay. David Roberts is right: Biden should do everything he can as fast as he can do it.

Biden’s best chance is to try to overwhelm the system the way Trump did, by doing so much that it’s impossible to make any one thing into a lasting story. He should launch so many simultaneous reforms that there’s no time for right-wing media to make up lies about all of them or for the Supreme Court to hear them all. He should ignore bad-faith attacks and stay relentlessly on message about what’s gotten done and what’s getting done next. He should, at every juncture, get caught trying to make government work better for ordinary people.

As Josh Marshall sums up:

Should Biden be open to bipartisan compromise? Absolutely. The door should be open. But it would be a grave mistake to spend any time coaxing anyone to come through it. We’ve played that game enough. Biden should always be willing to talk but not to delay. … The answer is for Democrats to use the political power they gain to make as much positive change as possible, using every legitimate lever at their disposal. Getting sucked into Republican mind games is time wasting and destructive.

Marshall asks the rest of us to “take the pledge” not to engage Republicans in bad-faith discussions or “treat them as meaningful or serious”. If John Cornyn wants to claim “transparency” as a non-negotiable ideal — after four years of backing Trump’s total obfuscation — let him. But in no way should anyone else treat this as a serious statement of principle.

What is good faith? This raises a significant question: How can we tell the difference between good-faith opposition and bad-faith opposition?

There’s a simple answer to that question: Good-faith opposition has policy goals of its own and makes credible counter-proposals. Bad-faith opposition tells you what it can’t support, but not what it can. When you drop something they can’t support, they shift their opposition to something else.

We should have seen that in the ObamaCare debate back in 2009-2010. Republicans frequently objected to something-or-other in the then-current version of the bill: They couldn’t support a public option, for example, or they wanted reform of malpractice torts to be part of the package. But through it all, no major Republican, not even the supposedly “moderate” senators like Susan Collins, ever said, “If you add this and take out that, I’ll vote for it.”

For years afterwards, pundits would claim that a deal was available if Obama had been willing to budge on tort reform or death panels or something else. But no one has ever been able to point to an actual Republican who made such an offer. The Republican “alternative” bill simply did not take the problem of the uninsured seriously: A CBO analysis of their plan predicted the number of uninsured Americans would continue to rise, to 52 million by 2019.

When Republicans did finally control all the levers of power, they never assembled a healthcare plan. Or a climate plan or an infrastructure plan or an immigration plan or much of anything else.

Something similar happened with Covid relief: The Democratic House passed the HEROES Act in May. Mitch McConnell not only didn’t bring that bill to the Senate floor, he didn’t bring any other bill either. If he had passed something, the differences might have been worked out months ago in a House/Senate conference committee, the way Congresses had dealt with disagreements for generations (until recent years). Instead, we have another last-minute deal that has to pass on an emergency basis.

As Steve Benen noted in his book The Imposters, Republicans are in a post-policy era. They want to hold power, and they want to do things that will help them hold power. But beyond that, there really is nothing they want. Biden can’t compromise with them on policy, because Republican policy positions are just placeholders that allow them to fight battles against liberal goals.

Republican voters, on the other hand, are living actual lives. They want to find jobs that pay a decent wage, survive temporary periods of joblessness, educate their children, retire when they get old, be cared for when they get sick, drive on roads, eat safe food, be protected from violence, and so on. Biden should absolutely reach out to them, because they’re Americans and he’ll be the American president.

As for Republican leaders, though, he should tell them what he wants to do, and see if they have a counter-proposal. If they don’t, to hell with them.


[1] As a Ph.D. myself, I have an opinion about this: The issue shouldn’t be whether or not you call yourself “doctor”, but when you do it. As a pure honorific title, as Dr. Jill Biden uses it, I have no objection. And in the context of the community college where she teaches, she has every right to distinguish herself from instructors who don’t have doctorates.

A far more important issue arises when people use their doctorates to claim expertise they don’t have, which I have never heard Dr. Biden do. I don’t call myself “Dr. Muder” on this blog, for example, because my doctorate in mathematics should not lend authority to my political views. I also don’t use my title when I speak in churches, because my religious opinions are not rooted in mathematics. (This practice annoyed my Dad, who was proud to have a doctor in the family and wanted everybody to know it.)

You know who has violated this principle most egregiously in recent months? Scott Atlas, when he abused his M.D. to claim authority for his crazy notions about the pandemic. His specialty is radiology, which has nothing to do with viruses or public health. So if you saw “Dr. Scott Atlas” and imagined that his opinions about the pandemic deserved more respect than any other interested citizen’s — he fooled you.

As far as I know, the WSJ and National Review have not objected to that example of credential abuse.

Shared Understanding

He leaves behind a society in which the bonds of trust are degraded, in which his example licenses everyone to cheat on taxes and mock affliction. Many of his policies can be reversed or mitigated. It will be much harder to clear our minds of his lies and restore the shared understanding of reality—the agreement, however inconvenient, that A is A and not B—on which a democracy depends.

– George Packer “A Political Obituary for Donald Trump

This week’s featured posts are “Opening Thoughts About the Trump Voter” and “This Week in the Trump Coup“.

This week everybody was talking about the virus and the vaccines

The Pfizer vaccine got approval and is being administered starting today.

Meanwhile, we’re seeing the predicted effects of the traveling and gathering Americans did over Thanksgiving. Friday, we set a record with 237,000 new cases. More than 17,000 Americans died in the last week. That’s like a Vietnam War every month.

The new worry is that people won’t take the vaccine. It isn’t just the usual anti-vax folks, it’s also a Catholic thing and anti-abortion Protestant thing, because the vaccines were developed using stem cells retrieved from aborted fetuses in the 1960s. The Pope doesn’t seem to have this scruple, but he’s not Catholic enough for some folks.

And then there are the wackos, like this Florida megachurch pastor, who

has advised his congregants not to receive a COVID-19 vaccine, urging them to “believe in divine immunity” instead.

After all, divine immunity worked so well during the Black Death.

and the GOP becoming the Autocratic Party

This got covered in one of the featured posts. One thing I left out of that post: the racist nature of much of this weekend’s violence. Black churches were targets, including a historic D.C. church whose Black Lives Matter banner was torn down and burned.

and you also might be interested in …

One thing Trump’s effort to overturn the election he lost (by over seven million votes) has pointed out is how the minority-rule bugs in our democracy can cascade.

  • The Electoral College allows a candidate to lose by millions of votes and still become president, as Trump did in 2016. If Biden’s win in 2020 had been only 1% narrower across the board — if he’d won by 5.5 million votes rather than 7 million — the Electoral College would have flipped the victory to Trump.
  • Gerrymandering allows a party to control the state legislature even if a majority of the voters supports the other party. This is the case in Wisconsin, Michigan, and Pennsylvania.
  • If the state legislature can ignore the vote totals and choose electors on its own — as Trump is trying to get them to do — then a candidate can lose the popular vote not just nationally, but also in states that represent a majority of electors, and still become president.
  • If no candidate gets a majority of electoral votes, the election is decided by the House, with each state delegation getting one vote. If the minority-rule party controls — or manages to gerrymander majorities in — 26 state delegations, its candidate wins.

Currently, all these factors favor Republicans. So if they are put together, Republicans could hold the presidency with considerably less than the 46% of the vote Trump got in 2016. A Democrat could win a resounding landslide of votes, but lose the presidency.


John Le Carré, the author who rescued the spy genre from James Bond, died this weekend at 89. Critics are arguing over his greatest novel, and I admit to never having read A Perfect Spy, which tops many lists. But The Spy Who Came in From the Cold is a novel writers (of fiction and nonfiction alike) should study as they learn their craft, because it is so perfectly tight. You couldn’t edit out a single sentence without losing something.

Le Carré’s most influential insight was that intelligence work requires intelligence more than derring-do, and is more about organizations than lone-wolf operatives. First and foremost, George Smiley was a guy who read the files better than you would.

The opening chapters of The Honorable Schoolboy are about picking up the pieces after catching the mole in Tinker, Tailor, Soldier, Spy. The process involves finding patterns in what the mole had prevented British intelligence from doing or discovering — assembling the gaps in the Circus’ knowledge into a story of its own. James Bond would have been useless.

and let’s close with something awesome

Prize-winning photos of the aurora.

This Week in the Trump Coup

The big thing to note is that the Electoral College is voting today, and that none of the 306 electoral votes Biden won in the election has been taken away by Trump’s 50+ lawsuits.

During impeachment, Republicans argued that Congress would overstep if it removed Trump so close to an election, because that was for the voters to decide. But of course, now that the voters have decided by a wide margin to remove Trump themselves, Republicans hold that decision to be invalid too.

Remember how this started: Biden’s victory became clear the Saturday after the election. When Trump didn’t concede right away, as all other losing candidates in living memory have, Republicans said we should give him time to adjust to his loss. Then they argued that he had a right to pursue all his legal options until the states certified their votes. Then they pushed back the date until the electoral votes were cast.

But of course this isn’t the end of it either. Now they’re talking about challenging the electoral votes when Congress meets to count them on January 6. That challenge will fail too, and then we’ll see what else they come up with, and how long they can keep this going.

In the meantime, it’s turning into a good scam for our conman-president. He has collected nearly a quarter billion dollars from his sheep to “fund” this challenge process, which costs only a fraction of that total. The longer he can tell supporters that he has a chance to win, the longer the cash keeps rolling in.


The downside, of course, is that people believe him. They believe Biden is stealing the election, but that Trump will still prevail. And as they catch on to the fact that Trump isn’t going to prevail, they’re going to become increasingly violent.

We saw that beginning to happen this weekend, with the Proud Boys and other Trump supporters rioting in D.C. and various other cities.

Police in Olympia, Wash., arrested an armed right-wing protester and charged him with shooting a counterdemonstrator during protests on Saturday night.

In the nation’s capital, at least four people were stabbed, including someone who is now in critical condition, and 33 more were arrested, after rallies supporting President Trump descended into chaos fueled by white nationalists. D.C. Police Chief Peter Newsham estimates that as many as 700 Proud Boys and their confederates roamed downtown streets looking to start fights, clashing with about 200 anti-Trump protesters.

In Michigan

Michigan’s 16 electors will convene at 2 p.m. Eastern inside a heavily guarded state capitol in Lansing to cast their ballots for Joe Biden to become president and Kamala Harris to become vice president.

A spokeswoman for Senate Majority Leader Mike Shirkey (R) said in a statement overnight that the entire capitol complex will be closed to the public based on “recommendations from law enforcement” amid “credible threats of violence.” Police will escort each of the electors from their cars amid what’s expected to be a large “Stop the Steal” protest outside.


The week’s most horrifying story was also one of its most absurd: The lawsuit Texas filed asking the Supreme Court to overturn the presidential election results in Georgia, Michigan, Pennsylvania, and Wisconsin. The suit itself was ridiculous, because how one state chooses its electors is not any other’s state’s business — which is what the Supreme Court said when it tossed the suit for lack of standing. The absurdity and insubstantiality of it didn’t stop 17 other state attorneys general from joining the suit or 126 Republican members of Congress from signing an amicus brief supporting it.

Let’s be clear about what would have happened if Texas had won: American democracy would be over. The voters could cast 81 million votes against a sitting president, defeat him by seven million votes, and even jump the hurdles of the archaic Electoral College — and he could hang onto power anyway. It is hard to imagine how future elections could proceed, once the Supreme Court had reduced them to an empty exercise. It’s also hard to imagine the Union hanging together. Why should blue states stay in a Union where their votes don’t count?

A barrage of other Trump suits got tossed in various state and federal courts, and I’m not going to go into them all. What it comes down to is that there is no court in any state that endorses Trump’s claim that Biden’s win is fraudulent. In most of the suits, Trump’s lawyers didn’t even really make that claim; the “evidence” they kept crowing about in public and social media wasn’t anything a court would recognize.

I agree with Amanda Marcotte’s interpretation: 2/3rds of Republicans don’t “believe” Trump really won the election any more than they believed President Obama was born in Kenya. The election-fraud conspiracy theory simply justifies a position they don’t want to state in so many words: To hell with democracy. Their side should be in power no matter what the majority of Americans want.

it’s important to see those who support Trump’s coup for who they are: People who have been radicalized, through racism, hateful propaganda, and a sense of perpetual grievance, against democracy. They aren’t going to change their minds because of new facts, because the underlying belief — which is that they deserve to be in power, no matter what — is the problem here. It’s a rising American authoritarianism, and we underestimate it at our peril.


This is a good time to revisit one of my favorite Jen Sorensen cartoons, which she drew in 2015.


Arguably the most disturbing thing about the Texas lawsuit was the 126 Republicans in Congress signed an amicus brief supporting the suit. New Jersey Rep. Bill Pascrell has proposed a hardball way to punish them:

Pascrell cites Article 1, Section 5 of the Constitution in the letter, which “gives each chamber of Congress the ultimate authority to decide their membership.”

“Stated simply, men and women who would act to tear the United States government apart cannot serve as members of Congress,” Pascrell writes, adding that they were attempting to make President Trump “an unelected dictator” by endorsing the lawsuit.

Most Democrats don’t want to go that far, preferring to keep the moral high ground as the Party of Fair Play as opposed to the Party of Power At All Costs. And as a practical matter, the worst possible outcome would be for Speaker Pelosi to attempt something like this and fail for lack of a Democratic consensus.

However, I could get behind a halfway measure, which I would view as a shot across the Fascist bow: Make an example out of the 19 of those 126 Republicans who were elected from Wisconsin (1), Pennsylvania (7), Michigan (4), and Georgia (7). After all, they were on the same ballot as Biden and Trump, so the brief they signed alleges that the very election that qualifies them to sit in Congress was tainted by what the brief calls “unconstitutional ballots”. It would make perfect sense for the House to investigate this allegation before seating them. Coincidentally, this investigation should last until the Inauguration, at which point Speaker Pelosi could report that allegations of fraud were unsupported by evidence.

Opening Thoughts about the Trump Voter

Whenever I come across an idea that seems promising, I face a dilemma: Do I tell you all as soon as I start thinking about it, or do I wait until I’ve done the research to flesh it out properly? This blog’s most successful posts are the ones where I’ve taken time, done a bunch of background reading, and thought things through carefully. Not a Tea Party, a Confederate Party is a prime example. I thought about it for months, and it has gotten more than half a million hits in the last six years. Around 200 people looked at it last week.

But at the same time, there’s the question of topicality: If I know a lot of you are thinking about a question right now, shouldn’t I let you know that I’m thinking about it too? And if I have some preliminary conclusions that you might find useful, maybe I should pass them on, even if I don’t have all the i’s dotted and t’s crossed yet. So that’s what I’m doing in this post.

The 74 million. As has been clear on this blog since Election Day, I was deeply disturbed to see 74 million Americans vote for a Trump second term. After everything he’s done these last four years, 74 million Americans — millions of whom didn’t vote for him in 2016 — said, “Stay. Get some more of us killed. Finish the job of destroying American democracy.”

Blessedly, 81 million Americans said, “No. Get the hell out of here.” And despite Trump pulling every lever of presidential power to defy the People and stay in office, the institutions of democracy have held. The Electoral College is voting today, and 306 electors are pledged to Joe Biden. On January 20, Trump will become an ex-president.

And yet, those 74 million Trump voters are still with us, and many of them are still believing every ridiculous thing he says, like that he really won in a landslide, but that Biden managed to manufacture vast numbers of fake votes — under the nose of a sitting president, whose Justice Department noticed nothing. In Georgia and Arizona, this vast fraud supposedly happened under the noses of Republican governors and secretaries of state, who also noticed nothing. Trump’s claims of fraud have failed to convince judges in over fifty lawsuits, including judges Trump appointed himself.

And still they believe him. Largely because of his influence over the base voters, droves of Republican elected officials have abandoned their integrity: Eighteen state attorneys general and 126 members of Congress signed on to an insane lawsuit asking the Supreme Court to throw out the 2020 election and hand Trump a second term in spite of the voters. (All three of his Supreme Court appointees refused.) If this suit had succeeded, if defeating Trump by seven million votes (in an election that Trump appointee Christopher Krebs called “the most secure in American history“) isn’t enough to take power away from him, then all future presidential elections would be meaningless. Democracy would be over in America, and quite possibly the Union would break up.

And that’s what the Republican Party supports these days.

So what do we do? How should we understand Trump voters? How should we talk to them? How do we manage to hang on to our constitutional republic in spite of them?

I’ve been thinking about those questions a lot this last month.

The too-easy answers. There are lots of explanations of the Trump voters that strike me as too easy and too satisfying to the liberal self-image. Like:

  • They’re just stupid.
  • They’re insane.
  • They’re in thrall to a mind-numbing, reality-rejecting version of Christianity.
  • They’re in Hillary Clinton’s “basket of deplorables”: racists, sexists, homophobes, xenophobes, and Islamophobes.

I admit, none of these explanations is entirely baseless. Trump’s support is concentrated in the less-educated portion of the population, and his supporters regularly swallow his incredible (and often self-contradictory) lies. Increasingly, they are taken in by Q-Anon or similar conspiracy theories that ought to sound crazy. White supremacists are front-and-center at Trump rallies, and Trump supporters in general love to demonize Black Lives Matter or leading women of color (like AOC). The Christian leaders who back Trump (in spite of his complete ignorance of Christianity and lack of any Christian virtue) are also likely to deny evolution, climate change, the Covid-19 pandemic, and other well established aspects of reality.

Perhaps the best reason to believe these pejorative theories of Trump support is that Trump himself seems to believe them. Like conmen everywhere, he does not admire his marks. For example, whenever he needs a distraction from something he has bungled, he picks a fight with some prominent Black person, like LeBron James or Don Lemon, or he tells the Squad to “go back” where they came from. He knows that playing a racist or sexist is a good look for him.

Restoring democracy. I resist these theories, though, because they seem self-defeating to me. If 74 million voters are just stupid or crazy or incurably bigoted, then why exactly do we want to save democracy? Shouldn’t we just disenfranchise them before they disenfranchise us? If Biden could stage a coup of his own, ignore the anti-democratic Senate, and start dictating sensible policies to mitigate climate change, guarantee health care, and reduce economic inequality, wouldn’t that be a good thing?

I reject that scenario. Messy and inefficient as democracy can be, I want to find a way back to it. I believe that when you start cutting large numbers of people out of the process, it doesn’t turn out well, even if you get some good things done in the short term.

Restoring democracy in such a way that it survives into the distant future involves reversing the polarization of recent years and shaping some kind of national consensus about who we are and what we’re trying to do. (It also involves recognizing that we have to do more than just “restore” democracy, because large swathes of the citizenry were cut out of the governing process in whatever era we might imagine going back to.) We can’t do that if we begin by writing off 74 million voters.

The answer I want. So before I even start, I have to confess that I’m looking for an answer of a certain shape: I want to find something in the Trump voter (or at least in a large number of Trump voters) that I can sympathize with and imagine making common cause around. If the core of what they want is to lock immigrant kids in cages, then I can’t go there. If the essence of Trumpism is restoring the patriarchy and sending gays back to the closet, there’s no deal to be made. But what if that’s not it?

Trump’s appeal. I view Trump’s appeal as being rooted in resentment and wounded pride, which Trump has exploited in destructive ways. Trump has turned that resentment against precisely the groups Hillary’s basket-of-deplorables quote describes: against Blacks, women, gays, immigrants, and non-Christians (especially Muslims). And Trump has offered his followers a restored pride in their race, their religion, and the power of their nation to bully other nations.

But what is that resentment and that wound really about? As I see it, Blacks, women, and the rest didn’t really do anything to the MAGA-hatters; they’ve just been offered as scapegoats. Same-sex couples haven’t harmed opposite-sex couples. Trans folk haven’t stopped the rest of us from identifying as men or women, if that’s what we want to do. Every American-Christians-are-persecuted story I’ve ever looked at has fallen apart under examination.

The key to bridging the gap — not all the way to the neo-Nazis, but to a lot of ordinary Americans who voted for Trump — ought to be finding an interpretation of that wound and that resentment that doesn’t demonize the people who feel it.

The progressive account. The progressive movement offers such an explanation, but I’m not satisfied with it. Bernie Sanders and his allies will tell you that the wound is economic: Trump supporters — particularly non-college-educated white people in rural areas — feel themselves slipping out of the middle class through no fault of their own.

The best description of that economic anxiety comes from Arlie Russell Hochschild’s book Strangers in Their Own Land.

You are patiently standing in the middle of a long line stretching toward the horizon, where the American Dream awaits. But as you wait, you see people cutting in line ahead of you. Many of these line-cutters are black — beneficiaries of affirmative action or welfare. Some are career-driven women pushing into jobs they never had before. Then you see immigrants, Mexicans, Somalis, the Syrian refugees yet to come. As you wait in this unmoving line, you’re being asked to feel sorry for them all. You have a good heart. But who is deciding who you should feel compassion for? Then you see President Barack Hussein Obama waving the line-cutters forward. He’s on their side. In fact, isn’t he a line-cutter too? How did this fatherless black guy pay for Harvard? As you wait your turn, Obama is using the money in your pocket to help the line-cutters. He and his liberal backers have removed the shame from taking. The government has become an instrument for redistributing your money to the undeserving. It’s not your government anymore; it’s theirs.

There’s a long discussion about white male privilege to be had here. (The implicit assumption is that “you” deserved the spot you had in line, and so the Blacks and women and immigrants who got moved ahead of you are interlopers.) But the essence of the problem is the unmoving line. If you’re making good progress towards the Dream, and you know you’ll get there soon enough, then who really cares if somebody else gets there a little ahead of you?

So the progressive solution is to get the line moving again by taxing the wealthy and using the money to relieve the stresses of working-class life (through government-financed health care, a higher minimum wage, and a strong safety net) and to open more avenues for upward mobility (free college and revitalized infrastructure).

Do all that, the progressives say, and working-class people will realize that Democrats are back on their side, so the Trump movement will fade away.

That seems plausible, but I don’t see much supporting evidence. I think progressives were fooled by the support Bernie got in the 2016 primaries from working-class white voters in rural areas of, say, Michigan and Wisconsin. But in 2020, when Bernie was running against a man rather than a woman, those counties flipped to Biden. It was never about the progressive economic agenda.

Depleted social capital. Timothy Carney’s book Alienated America (which I did a mini-review of in a weekly summary in 2019) is a conservative look at the Trump phenomenon. Carney argues (with data to back him up) that the core Trump voters — the people who supported him in the 2016 Republican primaries over more traditional Republican candidates like Jeb Bush, John Kasich, Ted Cruz, and Marco Rubio — were not the people struggling economically. Instead, they tended to be successful people in failing communities. Not the guy who lost his job when the factory moved to Indonesia, but the guy who runs the Chevy dealership that sold trucks to guys who lost their jobs when the factory moved to Indonesia, or the guy whose plumbing-and-heating-contractor business is surviving, but hasn’t been nearly as prosperous since the local factory moved to Indonesia.

So Carney’s solution to the Trump-voter problem is to shore up the social capital of the small towns and rural areas in America’s heartland. This seems a little closer to the mark, though exactly how to do it is a little trickier. (James and Deborah Fallows’ book Our Towns, which highlights successful small towns, might be a place to start thinking about that.)

When I picture the view from my Midwestern hometown (Quincy, Illinois), Medicare for All and free college are nice, but they don’t really solve the problem. They make it easier for people to survive as individuals, and to educate their kids so they can move away and succeed in places that still have opportunity. But they don’t provide a vision of how Quincy itself thrives into the future and makes opportunities for its children to put down roots without moving away.

What all of this leaves out, though, is the kind of resentment we’re seeing right now, directed at doctors and the government officials who listen to them. The people who make a scene at Target because they don’t want to wear masks — that’s not economic anxiety or even community-social-capital anxiety. That’s something else.

It’s related to the own-the-libs anger that shows up on social media. These are the people who positively rejoice when Trump makes fun of the disabled or claims that he couldn’t possibly have molested all the women who accuse him, because they’re just too ugly. That’s not about fear that immigrants will take your job, or concern that you won’t be taken care of if you get sick, or worry that your grand-kids will have to grow up in San Francisco.

Caste. So there are two other pieces of the puzzle I’m trying to integrate in, and this is where I’m going to need some time to get the fit right. Both are related to books I finished reading this week. One is Isabel Wilkerson’s Caste, which makes the observation that a caste system provides a sense of security to people who aren’t in the bottom caste, because they know someone will always be below them. That isn’t just (or even primarily) an economic security, it’s a social and psychological security.

So the guy who believes that he’s white trash takes comfort in the idea that he’s at least white trash. As long as whites are on top, he has some claim to self-worth.

Wilkerson raises the idea that poor and working-class whites whose votes for Trump seem to run against their economic interests (because Trump’s policies may take away their health insurance and won’t raise their minimum wage) may have a broader view of their interests than just economics. They may see their whiteness as a birthright they aren’t willing to sell.

Something similar might be going on with the Christians who refuse to sell cakes or do floral arrangements for same-sex marriages. It’s absurd to believe that God cares about these lines in the sand. (Neither cakes nor flowers play any sacramental role in Christian marriage rituals.) But if these people’s self-worth comes from the social supremacy of Christianity, then making a stand that says “We’re still on top” will be important to them.

This isn’t bigotry in the hating sense. The person who feels an attachment to everybody staying in “their place” may not have any conscious animosity towards people who are assigned to different places. But the current system gives that person a “place” somewhere that isn’t the bottom, and if the system falls apart, he doesn’t know where he’ll be.

So now the question becomes: What alternative self-worth do we have to offer such a person? And how can we communicate this offer to him or her?

Defining reality. One of the hardest things for me to accept about Trump supporters is their willing acceptance of all sorts of absurdities. As various Facebook memes have been putting it lately: The pandemic is a hoax, but Trump deserves credit for producing the vaccine that I’m going to refuse to take.

Bill Barr was wonderful until he refused to go along with the Biden-stole-the-election lie, and now he’s part of the Deep State. Amy Coney Barrett has gone from savior to villain in just a few weeks. The only way to know what’s real these days is to follow Trump’s tweets, and be prepared to change your mind as he does, from one moment to the next.

The 2019 book Democracy and Truth by Sophia Rosenfeld has some clues about what’s going on here.

Every society has some process for reaching consensus on what is real, what is possible, what categories people need to keep track of, and so on. (One key element of “wokeness” is recognizing the social construction of both race and gender. Yes, there is an underlying physical reality: Some people’s skin is darker than other’s, and some people have organs that other people lack. But the exact boundaries of these categories and what — if any — significance they have varies from one society to another.) Different people play different roles in this process, with some being more empowered than others. One of the not-well-understood aspects of Trumpism is that Trumpists feel alienated from the reality-defining class.

This has been an issue for years when it comes to Christianity and evolution. The scientific community had a debate in the 1800s, and settled on the consensus that Darwinian evolution really happened, while the young-Earth account of Genesis is just a myth. Lots of Christians don’t like that conclusion, and have tried for years to argue that their definition of reality deserves as much or more deference than the scientists’ definition.

The same thing happens with climate change and all sorts of other ideas that get less attention: There’s an expert class that defines the social consensus about reality, but lots of people are in rebellion against its conclusions. At a mundane level, this plays out on the front page of The New York Times every day: Some things are really happening while others aren’t. And some things are happening but aren’t worth noting.

In general, different people are involved in different reality-defining processes. And even if you’re not involved in any of them, you might feel some connection to the people who are. For example, I play no role in deciding whether the various Covid-19 vaccines are safe. But I have friends who are biologists, and they have friends are are involved. I’ve also participated in a different research community (mathematics), so I have a general grasp of the peer-review process, and so forth. In addition, there was a point in my life when I was deciding what field to specialize in, and if I had made a different choice, I might be working with Dr. Fauci today. (Or at least I believe that.)

But many people in society feel completely separated from that process. They have opinions on the subject, but nobody cares. In fact, nobody cares about any of their opinions about what’s real and what isn’t. They don’t know anybody who decides what’s real, and they aren’t aware of ever having had a chance to enter the reality-defining class. People like them don’t define reality. Somebody else does.

That’s the kind of alienation that makes you throw a fit in Target. This mask isn’t a moon rocket, it’s a piece of cloth. Why is your opinion about it better than mine?

That alienation will also lead you to conspiracy theories, where reality gets defined by an alternative community in alternative ways. The folks in Q-Anon care what you think. Dr. Fauci doesn’t. He thinks he’s better than you are.

Trump consistently stands up for these alienated folks by thumbing his nose at the reality-defining class as a whole. There’s a pandemic? Maybe, maybe not. Doctors say masks help, but I think hydroxychloroquine is better. My friend the My Pillow Guy has a theory; why don’t we listen to him?

So here’s a thought I’m still wrestling with: How do we make the reality-defining class more accessible? Or more transparent? Or at least less off-putting?

Pardons and Their Limits

Throughout his administration, Donald Trump has tested the limits of presidential power. On his way out the door, he is testing the limits of the pardon power.


This week the Covid pandemic reached new heights and threatened to break America’s hospital system. The total number of American deaths will soon pass the number of combat deaths in World War II.

So of course the White House had not a word to say about any of that. Instead, the President’s attention was absorbed by more pressing problems: the continuing failure of his attempts to overturn the election he lost by seven million votes, and the criminal exposure he and various members of his family and his administration might face come January 21, when he no longer has the power to restrain the career investigators and prosecutors in the Department of Justice.

The first of the expected rush of lame-duck pardons was given to former national security advisor Michael Flynn. Signed the day before Thanksgiving, the text was only released last Monday. [1] Since then, Trump is reported to be discussing pardons for his children, up to 20 members and allies of his administration, and himself. [2]

All of that may yet come to nothing; Trump frequently is said to be thinking about some action that never happens (like releasing a healthcare plan). But given the approaching deadline, it’s worth considering what he can actually do.

Article II. The President’s power to pardon is established in Article II, Section 2 of the Constitution:

The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

That sounds pretty sweeping, but as so often is the case in constitutional law, nearly every word inspires entire articles of analysis. That said, there is one clear limit that just about everyone agrees on: “Offenses against the United States” means federal crimes only. So a presidential pardon won’t protect against prosecutions for violating state laws, or against civil lawsuits.

That’s relevant, because a lot of the post-presidency legal exposure faced by Trump and his family falls outside of his pardon power. He could, for example, try to pardon himself for the seven instances of obstruction of justice that the Mueller report found to be indictable. But if he is guilty of bank and tax fraud (as Michael Cohen has claimed), New York state laws have been violated, and the alleged misappropriation of funds contributed to the Trump Inaugural Committee is a civil suit.

Self-pardons. But that brings up the issue of a self-pardon, which is untested in American law because no previous president has ever tried such a thing. Examined naively, the Article II text would seem to support the idea; it just says “power to grant pardons” with no exceptions other than impeachment.

But North Carolina Law Professor Eric Muller has an interesting interpretation, which ought to appeal to the conservatives on the Supreme Court who claim [3] to believe in Originalism: He can’t find 18th-century usages of grant as a reflexive verb. In other words, one party “grants” something to another; but nobody ever “grants” something to himself.

in the time period from 1750 to 1800 … [t]ransitive uses of the verb—“grant me,” “grant him,” “grant her,” “grant us,” “grant you,” and the like, where the person receiving the grant is different from the person doing the granting—are all common. But reflexive uses, where the person doing the granting is also the person on the receiving end? All but nonexistent.

Leading to the conclusion:

Can Donald Trump pardon himself? Perhaps, but that’s not the question the Constitution requires us to ask. Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no.

Harvard Law Professor Lawrence Tribe made a similar point to MSNBC’s Lawrence O’Donnell, and added that Article II also stipulates that the President “shall take care that the laws be faithfully executed”. If presidents could pardon themselves, they would instead be exempt from all federal laws — something the Framers clearly did not intend. The King of England might be above the law, but the President of the United States should not be.

We know that the Framers did not bother saying that the president cannot grant himself a pardon, because no one in their right mind would have imagined otherwise.

Specificity. Another problem of constitutional interpretation involves the word pardon itself. What did the Framers think it meant? University of California Law Professor Alan Rappaport argues that the Framers would have seen a pardon as a very specific reprieve from a specific violation of the law.

Most importantly, the Framers would have understood that pardons must be issued for specific crimes. They were not intended to be broad grants of immunity, get-out-of-jail-free cards bestowed by presidential grace.

This would call into question the Flynn pardon, which mentions the specific crime he pled guilty to (lying to the FBI), but also claims to cover

any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

Can such a “broad grant of immunity” really be valid, when President Trump himself may not know exactly what crimes he has put beyond the reach of legal accountability?

The model for this pardon, and for similar pardons Trump is said to be planning for his family and associates, is President Ford’s pardon of former President Nixon, which granted

a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

Well OK, then: If Nixon’s pardon is valid, then Flynn’s should be also. But is Nixon’s pardon valid? It was respected, in the sense that nobody put Nixon on trial. But precisely because Nixon’s pardon was never challenged, no judge has ever ruled on its validity.

So if Flynn has committed some crime “related to the investigation of the Special Counsel”, but not specifically identified in his pardon, the next Attorney General will have the option to indict him for it. During the subsequent trial, Flynn could ask the judge to throw out the indictment, because he had already been pardoned. But that motion would have to make its way up to the Supreme Court, because there is no compelling legal precedent for a lower-court judge to cite.

Trump family members might find themselves involved in some similar proceeding. If, say, Don Jr. gets a pardon vaguely immunizing him from anything he may or may not have done, what happens if he is prosecuted for lying to the Senate Intelligence Committee?

If vague, sweeping pardons aren’t valid, Trump’s other option is to list the crimes his children and close associates might be prosecuted for. While this would quite likely be legally valid, it would essentially be an admission of guilt. Such pardons would start to resemble the truth-and-reconciliation model, where crimes committed by an outgoing regime are excused in exchange for a full accounting of them.

Can a pardon itself be a crime? Yes. In his Senate confirmation hearing, Bill Barr admitted that offering a pardon in exchange for false testimony, or for refusing to testify, would be obstruction of justice.

So while the pardon itself might be valid, the President might commit a new crime by granting it.

In his recent book Where Law Ends, Mueller investigation veteran Andrew Weissmann says that Trump’s public praise of Paul Manafort (in particular for refusing to “break” by cooperating with the Mueller investigation, in contrast to Michael Cohen, whom Trump characterized as a “rat“) amounted to dangling a pardon in exchange for his silence. George Packer’s review of Weissman’s book summarizes:

[Manafort’s] lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.

Similarly, the Flynn pardon and the commutation of Roger Stone’s sentence could be interpreted as obstruction.

Side-effects of pardons. Even if Trump’s family and associates have valid pardons, Congress may decide that it wants to know what happened during the various events they might have been prosecuted for. (What exactly was Rudy doing in Ukraine, anyway? When Flynn talked to the Russian ambassador, what instructions, if any, had Trump given him?) So the pardon recipients might be called to testify before congressional committees.

If they are called, they will have no Fifth-Amendment rights to invoke, because they can’t be prosecuted for crimes that have already been pardoned. If they refuse to testify without invoking a valid privilege, they can be cited for contempt of Congress (which a Biden-appointed US attorney might see fit to prosecute). If they testify and lie, that would be a new crime not covered by their pardons.

Not the end of the story. Ordinarily, a pardon is the end of the story: You did something; you were accused and possibly convicted of it; but a pardon wiped the slate clean and the credits roll.

The pardons Trump is considering, on the other hand, might just be another link in the chain of events. Depending on what Biden’s appointments at the Department of Justice decide [4], investigations and prosecutions could still happen, and the Supreme Court would have some important decisions to make.

And whatever the courts decide, Congress could still investigate, and Trump’s various obstructions of justice could still unravel.


[1] Combined with the previous commutation of Roger Stone’s sentence, the Flynn pardon ties up one of the few remaining loose ends in Trump’s obstruction of the Mueller investigation. The only remaining loose end is Paul Manafort, who quite likely will get his own pardon soon. The 2016 Trump campaign connected to Russia in three main ways, and the Mueller investigation ran aground when it couldn’t get the cooperation of Manafort, Stone, and Flynn.

Paul Manafort was the head of the 2016 Trump campaign until he resigned under fire that August. His associate Konstantin Kilimnik turned out to be a Russian agent. Manafort passed campaign polling data to Kilimnik, for reasons that have never been explained.

The emails that Russia hacked from the Democratic National Committee were given to WikiLeaks. Trump associate Roger Stone appeared to have advance knowledge of what was in them and when they would be released. How the Russia-WikiLeaks-Stone-Trump pipeline worked has never been explained.

Michael Flynn was convicted of lying to the FBI about his conversations with the Russian ambassador during the Obama-to-Trump transition. Flynn and Jared Kushner reportedly were trying to set up a “back channel” to Russia that would circumvent US intelligence agencies. What that was for and what Trump knew about it has never been explained.

[2] Just a suggestion: Don’t forget Melania, Don. You do not want her flipping on you.

[3] I think Originalism is a rhetorical device they use when it’s convenient, not set of principles they actually believe. One key example: There is no way the Framers intended the Bill of Rights to apply to corporations.

[4] So far, Biden and Harris have been saying exactly the right things: Whether or not to prosecute Trump-administration crimes will be decided by the Justice Department, which will regain its independence from political meddling.

Our Justice Department is going to operate independently on those issues, how to respond to any of that. I am not going to be telling them what they have to do and don’t have to do. I am not going to be saying, go prosecute, A, B, or C.

Biden is even said to be planning to keep Christoper Wray as head of the FBI. If Wray’s FBI finds evidence of Trump-era crimes, Biden will not have his fingerprints on those reports.