Eight days from the end of voting, the signs are good.I know you’re still worried.
Politico sums up how this race might look to a dispassionate observer:
Trump is an unpopular incumbent saddled with a recession and an out-of-control coronavirus pandemic that has killed more than 220,000 Americans. Meanwhile Biden has only seen his favorability ratings increase over time, emerging largely unscathed from Trump’s attacks on him and his son Hunter Biden. And Biden is outspending Trump down the homestretch almost everywhere
Those strategic observations are reflected in the polls: 538’s polling average has Biden up by 9.1% nationally, with few undecided voters: 52.0%-42.9%. And yes, the Electoral College rigs the system in Trump’s favor — the only reason he’s president now is that the electors overruled the voters in 2016 — but even that looks good: For some while 538’s tipping-point state has been Pennsylvania, where they project a 5.5% Biden advantage: 52.4%-46.9%. (That’s the margin in a model that projects ahead to election day. Their who’s-leading-now polling average is a bit bigger: 50.4%-44.7% or a 5.7% margin.)
If something goes wrong in Pennsylvania, Biden has other paths to victory. He’s also currently leading in North Carolina (2.5%), Florida (2.4%), Arizona (3.0%), Iowa (1.3%), and Georgia (.9%). (The model expects his leads to go away in Iowa and Georgia, but not in the other states.) And Trump’s leads are narrow in a number of states once thought to be safe for him: Ohio (1.4%) and Texas (tied).
That’s right: If you’re being all quantitative and wonky about it (like 538 always is), Biden currently looks way more likely to win Texas than Trump does to win Pennsylvania.
Ghosts of 2016. Election Night 2016 was a trauma that Democrats may not recover from for a very long time. (I wonder if Republicans fretted this much about Eisenhower’s chances in 1952 after the Dewey debacle in 1948.) The Saturday before the election, the Princeton Election Consortium said Clinton had a 99% chance of winning. While other people’s speculations were less extreme — and Nate Silver’s election-eve estimate that Trump stood a 28% chance was probably about right; some unlikely things still had to happen, but everybody has gotten wet when there was a 28% chance of rain — few of us expected to see a President Trump.
And then it all fell apart: Florida and North Carolina early, and then Pennsylvania, Wisconsin, and Michigan.
So why couldn’t that happen again?
If you insist on a strict interpretation of could, then sure: Everything could still go wrong. But this isn’t like the horror-movie sequel where only one character remembers what happened in the original. Everyone is out there looking for signs that the polls are wrong, or that subterranean forces are shifting the election under our feet. Nobody’s finding them.
What’s different now: non-college voters. 538’s Dhrumil Mehta explains the extent to which the polls were wrong in 2016 and what has been done to correct them in 2020. Nationally, the 2016 polls were pretty accurate; they only mildly overestimated Clinton’s 2% popular vote win. Late polls in Michigan and Pennsylvania showed Trump momentum, even if they still had a small Clinton lead. Only Wisconsin was a true polling failure.
Mehta explains a mistake that has since been corrected by many pollsters: They didn’t rebalance their samples for education levels.
What is rebalancing? When you already know the demographics of the population you’re sampling, you may notice that your sample is off in some way. Suppose, for example, that the electorate in some state is 14% black, but your sample is only 10% black. So you might adjust for that by counting each sampled Black person as 1.4 people.
In 2016, polls in the upper Midwest regularly undersampled people without college degrees. They didn’t intend to do that, it just happened. But it didn’t occur to them to rebalance for education, and the result was that more non-college people — and especially non-college whites — voted than anyone expected. That was Trump’s margin of victory.
Pollsters know about that mistake now, and are taking various steps to avoid it this time around.
So Trump doesn’t have some magical ability to conjure voters out of nowhere. We know where his 2016 margin came from, and we’re looking for it but not finding it this time.
What’s different: margins. Biden’s polling leads are bigger and broader than Clinton’s were. Clinton went into the election leading in the polls by 3 or 4%. Biden’s lead is running 8-10%.
What’s different: favorability. One reason the 2016 race went south at the end was that Hillary Clinton had very high unfavorable ratings. Many of 2016’s “undecided” voters were actually people searching for an excuse to vote against her, which the last-minute Comey announcement provided. (Trump’s negatives were also high, but that’s where we see the effect of sexism: A male president you dislike is unfortunate, but we’ve all disliked a male president at one time or another. A female president you dislike, on the other hand, may seem like an unimaginable horror.)
He has emerged with more Americans viewing him favorably now than at this time last year, the opposite of the usual trajectory of a campaign and far different from the circumstances that faced Hillary Clinton in 2016.
Biden may not inspire dreams of a utopian future, but he’s hard to dislike. That’s why Trump keeps trying to run against somebody else, preferably some woman: Kamala Harris or AOC or Nancy Pelosi or Clinton again.
What’s different: the news. In 2016, Clinton’s weak spot was the suspicion of corruption. Largely that was the result of a decades-long Republican smear, and none of the so-called Clinton scandals subsequently amounted to anything. (Not even Bill Barr can find an excuse to “Lock her up!”)
But nonetheless, the final-week announcement that the FBI had found more Clinton emails and needed to examine them brought that weak spot to the fore.
The news cycle this time around is playing out very differently. The Trump tactic of insinuation-with-little-basis worked in 2016 largely because the country was doing pretty well. No urgent crises loomed that we had to picture Trump or Clinton trying to handle. “What have you got to lose?” Trump asked, and a lot of people had no compelling answer.
Right now, the country is in terrible shape, and the problems hit home every day. People worry about getting sick, they worry about their vulnerable relatives, they worry about their jobs. Nobody would ask “What have you got to lose?” now.
Trump’s weak spot is that he has completely bungled the only real crisis he’s faced: the pandemic. More than 220,000 Americans are dead on his watch, and he doesn’t seem to care. “It is what it is,” he says. We’ll have to “learn to live with it”. We should thank him because millions haven’t died.
And the news cycle is bringing that to the fore: The virus is surging precisely at the moment people are voting. There’s no way to put that out of the voters’ minds.
Election night. One more consideration that’s on everybody’s mind is what will happen on November 3. Will we actually know anything that night? Or will we be in painful suspense for days or weeks?
538 has a video where Galen Druke talks through what election night might look like, and in particular the question of whether we’ll know a winner. The upshot: Florida, North Carolina, and Arizona should count ballots fairly quickly, so we probably will know who wins those states (unless they’re very close). If Biden takes any of them, he’s going to win. If Trump takes all of them, it’s still a race, but the odds tip in Trump’s favor.
You can also play with the interactive tool Druke is using. When I do that, and give Trump FL, NC, AZ, but give the other states where Biden has sizeable leads to him, leaving only Wisconsin and Pennsylvania undecided, Biden is again favored.
So there’s a chance next Tuesday won’t be an ordeal. Or maybe it will.
For months, I’ve been resisting (more successfully some weeks than others) the urge to focus entirely on the election. I’ve especially tried not to get lost in speculating about who’s going to win, because that’s a black hole that can suck down all your brain cycles without leading to any productive action.
But now voting is well underway. This year, Election Day marks the end of the voting season, and that’s a week from tomorrow. More than a third of the expected electorate has already voted. I dropped my own ballot off at the local court house a few days ago. I feel like I’ve crossed the event horizon — not thinking about the outcome is not an option any more.
But it’s a real challenge to think about it sanely. 2016 was the kind of nightmare you don’t soon recover from. Hillary was supposed to have it in the bag, and then everything went wrong. I didn’t even entertain the thought that she might lose until about 6 in the evening, when I heard over the radio that black turnout in Cleveland was unexpectedly light.
Time hasn’t eased those wounds, because Trump pokes at them every day. The last four years have been every bit as bad as we feared, and then some. Even Bill Barr isn’t corrupt enough or subservient enough for him now. Another four years of this and we’ll have a true autocracy that he can hand off to Don Jr. or Jared or Ivanka.
So it’s hard to feel sanguine no matter how good the signs look. But all the same, they do look good. That’s what I’ll talk about in the featured post “I Want To Believe”. That should be out around 10 EDT.
In the weekly summary I’ll also cover the virus, which has surged to a new peak in daily new cases. Unlike the spring and summer surges, this fall surge is just about everywhere: all sections of the country, urban and rural alike. The Northeast is probably the safest region right now, because we got the crap scared out of us in the spring and so we’re following the guidelines better than most other places. But cases are ramping up here too.
But I’ll also tempt fate a little and start thinking about what we need to fix after Trump is gone. Even if we dodge this bullet, his administration has stress-tested our democracy and exposed a lot of flaws. (I expect this to become a major theme of the Sift after the election is safely over.) I’ll talk some about the media and the environment (which needs a lot more attention in future weeks).
Also: what’s wrong with originalism, the all-electric Hummer, hacking Trump’s Twitter, and what can happen to a Twinkie if you leave in the basement for eight years. I’ll try to get that out by noon.
When our leaders speak, their words matter. They carry weight. When our leaders meet, encourage or fraternize with domestic terrorists, they legitimize their actions and they are complicit. When they stoke and contribute to hate speech, they are complicit.
This week everybody was talking about the White House coronavirus cluster
The Trump White House is displaying its usual lack of transparency. We still don’t know exactly who’s infected, when Trump’s last negative test was, whether he had been tested before his debate with Biden (as the rules stipulated), or who White House Patient Zero is. The Washington Post tried to summarize what we do know.
There’s also a lot we don’t know about Trump’s current condition. He held his comeback rally on the White House lawn Saturday, speaking from a balcony. (Almost forgotten in the hoopla is that using the White House for rallies used to be taboo. The Marine Band played, which was “pushing the boundaries of U.S. law and the military tradition of political neutrality”. More and more, Trump treats all government resources as his personal property.) He will hold a rally in Florida today.
Is that safe, either for him or for the people around him? We get carefully worded statements from his doctor that don’t really answer the question.
and right-wing terrorism in Michigan
Thursday, 13 right-wing domestic terrorists were charged with participating in a plot to kidnap (and possibly kill) Michigan Governor Gretchen Whitmer. Confidential informants taped conversations about storming the Capitol, placing Whitmer on trial for treason, and taking her from her vacation home. And they did more than just talk.
The conspirators conducted surveillance of Whitmer’s vacation home on two occasions in late August and September, the complaint said. Croft and Fox discussed detonating explosive devices to divert police from the vacation home area, according to the FBI.
President Trump stands back from groups like this when they get caught, but he has also been encouraging them. When armed protesters (including some of the conspirators) surrounded and entered the Michigan state capitol in April, Trump tweeted “LIBERATE MICHIGAN“, and urged Whitmer to “make a deal” with them because they are “very good people”. (It’s worth noting that Whitmer did not give in to Trump’s pressure to reopen prematurely, but the Republican governors of Arizona, Texas, Georgia, and Florida did, with disastrous results. Whitmer was right and Trump wrong.)
In his debate with Joe Biden, Trump addressed another right-wing hate group, the Proud Boys, telling them to “stand by” because “somebody’s got to do something about Antifa and the left”.
Whitmer has refused to let Trump off the hook for this:
When our leaders speak, their words matter. They carry weight. When our leaders meet, encourage or fraternize with domestic terrorists, they legitimize their actions and they are complicit. When they stoke and contribute to hate speech, they are complicit.
It’s clear all 13 of these men — and probably many more like them — were and still are listening for signals like these, and interpret them as permission and direction. When Republican leaders call the governor a “tyrant,” we see that language take hold among protesters, who then take to carrying signs saying, “Tyrants Get the Rope.” (In Michigan, protestors even brought a naked brunette doll hanging by a noose to a rally.)
Republicans didn’t create these 13 angry men, but they have absolutely encouraged them — like blowing on a tinder to start a campfire.
What’s more, when there is some violent incident on the left, no one praises it. You don’t hear local officials or presidents of the United States justifying it. That stuff only happens on the right.
and Trump’s collapsing support
Two weeks ago, 538’s polling average had Biden leading Trump by 6.9%: 50.1%-43.2%. Now it’s up to 10.6%: 52.4%-41.8%. Then, the tipping point state was Pennsylvania, where Biden led by 5.2%. Now it’s Wisconsin, where Biden is up by 7.1%.
What I would call the coup de grâce state, the one that could tell us on election night that Biden has won, is Florida, where 538 has Biden ahead by 4.5%. Two weeks ago, Biden’s lead was only 1.7%.
Mitch McConnell is saying that literally, claiming that he hasn’t been to the White House in two months, because he “personally didn’t feel that they were approaching the protection from this illness in the same way that I thought was appropriate for the Senate.” And Joni Ernst says, “I’m running my own race.“
and the off-again on-again stimulus deal
Right now it looks like it’s off, largely because McConnell shows no interest. I think McConnell is already looking past the Trump administration, and thinking about how he can sabotage the Biden economy.
and the 25th Amendment
The 25th Amendment cleaned up a bunch of possible problem areas related to presidential succession, including what happens when the President is incapacitated. Section 3 covers when the President knows he is (or is about to be) incapacitated: He sends a note to both houses of Congress telling them that the Vice President is taking over for a while. Ronald Reagan did it once and George W. Bush twice before going under general anesthetic for surgery.
Section 4 covers presidents who don’t know they’re incapacitated, either because they’re unexpectedly unconscious, or because they’re off their rockers.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
That’s the situation we have appeared to be in this week. The steroid treatment Trump is receiving may have side effects:
While this commonly used drug is generally safe, there are a range of known side effects. “By far, the most common is hyperglycemia, so that’s where your blood sugars will shoot up,” [Dr. Celine] Gounder [of the New York University School of Medicine] said.
Also quite common, especially among older patients are a range of psychiatric side effects, she added. “Anything from feeling like you’re on top of the world … your arthritic aches and pains of age just melt away, you have lots of energy,” she said. “There may be some grandiosity.” The drug can also cause agitation, insomnia and even, psychosis, Gounder said.
It should be obvious that no one taking this drug should wield the powers of the presidency. And since he came back to the White House, Trump has been even more unstable than usual.
He has demanded that Attorney General Barr arrest his enemies, including Barack Obama, Hillary Clinton, and Joe Biden. “Wow!!! NOW DO SOMETHING ABOUT THIS, THE BIGGEST OF ALL POLITICAL SCANDALS (IN HISTORY)!!! BIDEN, OBAMA AND CROOKED HILLARY LED THIS TREASONOUS PLOT!!! BIDEN SHOULDN’T BE ALLOWED TO RUN – GOT CAUGHT!!!” He reiterated that demand in a phone interview with Fox Business Network. MSNBC comments: “These hysterical rants have no basis in reality.”
In that same FBN interview, he referred to Kamala Harris as “this monster“, and attacked his own appointees Mike Pompeo and Christopher Wray. Eventually the host said, “Mr. President, I know you have to go.”
While tweeting about the plot to kidnap Governor Whitmer — denying that he all but endorsed it with his “LIBERATE MICHIGAN” tweet this summer — he mixed his message with “Governor Whitmer of Michigan has done a terrible job.” He seemed much more upset that he might be blamed than that his supporters had planned a political crime unprecedented in US history.
So Nancy Pelosi has started the 25th-Amendment conversation, with a bill that establishes “such other body as Congress may by law provide” to assess the President’s fitness for office. But I disagree with one part of that article’s interpretation:
The commission, if called upon through House and Senate approval of a concurrent resolution, would “carry out a medical examination of the president to determine whether the president is mentally or physically unable to discharge the powers and duties of the office,” according to the bill text. The president could refuse the examination, but the commission would be authorized to factor that into their decision.
If the commission determines the president is unfit to perform his executive duties, the vice president would take over.
As I read the “or” in the 25th Amendment, the commission replaces the cabinet’s role the process, but not the Vice President’s. If the VP stands by the President, I don’t think the President can be removed.
and the fly on Mike Pence
I didn’t last long watching the vice presidential debate [transcript]. The first substantive exchange was about the administration’s handling of the Covid pandemic, which Pence absurdly claimed “saved hundreds of thousands of American lives”. Harris then made the obvious response:
Whatever the vice president is claiming the administration has done, clearly, it hasn’t worked. When you’re looking at over 210,000 dead bodies in our country …
And Pence then spun her attack on his administration as an attack on the American people, because Trump is the People, apparently.
when you say what the American people have done over these last eight months, hasn’t worked, that’s a great disservice to the sacrifices the American people have made
I turned it off right there. I’ve given this administration plenty of opportunities to explain their point of view, and all they do is bullshit me. I’m done listening.
So I missed the news event of the night: the fly who spent two minutes on Pence’s head without him noticing.
For what it’s worth, 60% in a CNN poll said Harris performed better.
Mr. Trump did not merely fail to end Washington’s insider culture of lobbying and favor-seeking. He reinvented it, turning his own hotels and resorts into the Beltway’s new back rooms, where public and private business mix and special interests reign. …
Federal tax-return data for Mr. Trump and his business empire, which was disclosed by The New York Times last month, showed that even as he leveraged his image as a successful businessman to win the presidency, large swaths of his real estate holdings were under financial stress, racking up losses over the preceding decades.
But once Mr. Trump was in the White House, his family business discovered a lucrative new revenue stream: people who wanted something from the president. An investigation by The Times found over 200 companies, special-interest groups and foreign governments that patronized Mr. Trump’s properties while reaping benefits from him and his administration.
and you also might be interested in …
The featured post includes yet another of my rants against minority rule. Somewhat coincidentally, though, this week two Republican senators openly expressed doubt or discontent with democracy.
In an odd series of tweets, Mike Lee of Utah said “We’re not a democracy” and then proceeded to explain why it’s better that way.
democracy isn’t the objective; liberty, peace, and prospefity are. … We want the human condition to flourish. Rank democracy can thwart that
Vox’ Zack Beauchamp looks at the vague but ubiquitous conservative talking point that “We’re a republic, not a democracy.” It’s true that the Founders worried about the tyranny of the majority, but modern Republicans are using this rhetoric to justify rule by the minority, which is surely worse.
modern conservatism has long had a built-in intellectual justification for ruling without popular support. … [T]he tradition Lee is operating out of … casts doubt on the most basic democratic principle: that the people who win the public’s support should rightly govern.
… The idea that majority rule is intrinsically oppressive is necessarily an embrace of anti-democracy: an argument that an enlightened few, meaning Republican supporters, should be able to make decisions for the rest of us. If the election is close, and Trump makes a serious play to steal it, Lee’s “we’re not a democracy” argument provides a ready-made justification for tactics that amount to a kind of legal coup.
Ben Sasse is similarly anti-democratic in his proposal to repeal the 17th Amendment, so that senators would once again be chosen by state legislatures rather than by popular vote. As he surely realizes, that would allow the Senate to be even more gerrymandered than the House. Just as the voters of Michigan, Wisconsin, and several other states can’t get rid of the Republican majorities in their gerrymandered legislatures, they also wouldn’t be able to get rid of their Republican senators.
Reasonable people will certainly disagree about the many political positions taken by candidates. But truth is neither liberal nor conservative. When it comes to the response to the largest public health crisis of our time, our current political leaders have demonstrated that they are dangerously incompetent. We should not abet them and enable the deaths of thousands more Americans by allowing them to keep their jobs.
The people who received the money managed it pretty well: They were more likely to be food secure and got off the streets more quickly than the control group. Their spending on alcohol, cigarettes, and drugs went down.
“It challenges stereotypes we have here in the West about how to help people living on the margins,” [Claire Williams, CEO of the funding foundation] said.
and let’s close with something analytic
This is from 2013, but I just found it, so maybe you haven’t seen it either. It’s a quiz the NYT’s Upshot column put together to analyze what your word usage says about where you’re from. My own dialect heat map doesn’t pick out my central Illinois home town precisely, but my years in Chicago apparently pulled my usage north a bit.
Three weeks ago, in “The Illegitimacy of a Conservative Supreme Court“, I focused on the Court as both the product and the enabler of minority rule: Democrats have won the popular vote in six of the last seven presidential elections, and yet the rural small-state bias built into the Electoral College has given us eight additional years of Republican presidencies. Combined with Mitch McConnell’s maneuvers and the luck of who dies when, Republican presidents have replaced four of the eight justices who left the Court during that time, with Amy Coney Barrett nominated to be the fifth, joining Clarence Thomas (appointed by the first President Bush, who did win the popular vote) to make a 6-3 conservative majority.
The Senate has an even larger rural small-state bias, which allowed McConnell’s minority-supported Senate majority to refuse to consider President Obama’s nominee Merrick Garland, stealing the seat for Neil Gorsuch, who was appointed by popular-vote-loser Donald Trump.
In short, the 6-3 majority Barrett’s confirmation would produce flies in the face of the will of the American people, who are considerably more liberal than a 6-3 Court would be. Worse, the 5-4 conservative majority has already shown a partisan Republican bias that makes rule by the Republican minority even more likely: unleashing a torrent of corporate money in Citizens United, gutting the Voting Rights Act, and refusing to recognize partisan gerrymandering as a violation of the right to vote. (The last two opinions were written by Chief Justice Roberts. In Rucho v Common Cause, he wrote that even the most extreme gerrymandering is “beyond the reach of the federal courts” and should be corrected “through legislation” that would need to pass precisely the legislatures where a minority party has been gerrymandered into power.) In its next term, the Court will hear a case that could undo the rest of the Voting Rights Act.
Why should you care? “But so what?” a voter might ask, particularly an independent voter who holds no particular sympathy for Democratic politicians kept out of power by Republicans who represent fewer people. The public associates certain high-profile issues with the Court — abortion, same-sex marriage, gun control, and affirmative action pop to mind — but what if those aren’t your issues? If you’re white, straight, unlikely to get pregnant, and not worried about mass shootings, why should a Court with an outside-the-mainstream conservative bias matter to you?
Even if you belong to some vulnerable group, you can fix most of the problems in your personal situation just by moving to a blue state. If you’re sick of being dominated by the Republican minority in Wisconsin, move to Minnesota or Illinois, where the majority still rules. And if you worry that federal courts will no longer protect you from the authentic conservative majority in Mississippi, go to Vermont or Oregon. Your abortion rights will be safe, no one will threaten your marriage, and white supremacy will be much less onerous.
So what do you need the Supreme Court for?
A recent state-court decision in Michigan, highlighted in an article in The Atlantic, points to a different kind of danger: Conservative courts can reinterpret the fundamental rules of our system of government in such a way that many important issues are placed beyond the reach of government entirely.
That’s worth caring about.
The Lochner Era. We’ve seen this before in American history, though it is passing out of living memory. Beginning in the late 1800s, the original Progressive movement tried to rein in the robber barons of the Gilded Age. People who felt crushed by a system that favored employers over employees elected representatives who passed laws to make that dominance less oppressive: child-labor laws, limits on the work-week, worker safety laws, minimum wage laws, and so on.
And the courts threw those laws out.
The case that gave the era its name in the legal history books is 1905’s Lochner v. New York. Joseph Lochner owned a bakery in Utica and liked to overwork people. But New York had passed the Bakeshop Act, a workplace-safety measure that limited bakers to working 60 hours a week or 10 hours a day. (Not only is it a bad idea for exhausted people to tend fires, but constant exposure to flour dust can cause respiratory problems.) Lochner appealed his fine to the Supreme Court, which overturned the Bakeshop Act as an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract”.
In practice, the “right to contract” meant this: If the only job available to you requires you to work yourself to death, and if your alternative is to watch your children starve, you have the “freedom” to accept that arrangement. The state can’t interfere.
In essence, Lochner put workplace issues beyond the reach of government. No matter what the voters thought, employers could use the scarcity of jobs and the surplus of workers to enforce their will. If workers lacked the market power to say no, government couldn’t say no for them.
The swan song of the Lochner Court came when it declared FDR’s National Recovery Administration unconstitutional in 1935. The threat to block the entirety of the New Deal motivated Roosevelt’s court-packing plan, the Judicial Procedures Reform Bill of 1937. And while that bill did not pass, the Court seemed to take it as a shot across the bow. It started to back off, the New Deal was allowed to proceed, and FDR eventually stayed in office long enough to replace eight of the nine justices he inherited.
Non-delegation. The Michigan case examined in The Atlantic’s article concerns a law the Michigan legislature passed in 1945 titled “Emergency Powers of Governor“. It’s a short but sweeping bill whose stated intent is
to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.
In March, Governor Gretchen Whitmer invoked these emergency powers to fight the coronavirus pandemic. On October 2, on a party-line 4-3 vote, the Michigan Supreme Court not only invalidated Whitmer’s orders, but closed the door on future emergency orders by ruling that
the [EPG] Act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
The portion of the Michigan Constitution in question is rather general and open to interpretation:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
The whole point of a state-of-emergency laws is that legislation is a slow process that events can outrun. So the 1945 legislature, recognizing its limited speed, pre-loaded some powers into the governorship.
But that is now unconstitutional in Michigan.
Minority rule in Michigan. It’s worth noting that Michigan is currently a minority-rule state. A majority of the voters have repeatedly tried to elect Democrats to the legislature, but have failed to take control away from Republicans, who have gerrymandered themselves into power. In 2018, Michigan voters tried to deal with this by passing a ballot proposition to create an independent commission to draw legislative-district boundaries. Republicans sued in federal court to invalidate that law, but so far have failed. Even if the independent commission succeeds, though, the new districts won’t be in force until the 2022 election.
In short, Governor Whitmer represents the voters of Michigan; the Republican leadership of the gerrymandered legislature does not. Moreover, even though critics of majority rule sometimes smear it as “mob rule”, in this case it is the minority-rule Republicans who are supported by a violent mob.
Neil Gorsuch. The Michigan Court’s invocation of “non-delegation” explicitly references a dissenting opinion by US Supreme Court Justice Neil Gorsuch, in which he calls for reviving the non-delegation doctrine of the Lochner Court.
Before the 1930s, federal statutes granting authority to the executive were comparatively modest and usually easily upheld. But then the federal government began to grow explosively. And with the proliferation of new executive programs came new questions about the scope of congressional delegations. Twice the Court responded by striking down statutes for violating the separation of powers.
Gorsuch’s target is what conservatives pejoratively call “the administrative state”, which is embodied in agencies like the SEC, FDA, EPA, FCC, IRS, and many others that keep powerful economic interests in line.
In the same way that emergencies can develop too quickly for a legislative response, corporate interests can repackage and reinvent themselves much faster than Congress or a state legislature can counter. Congress has responded by laying out broad principles and delegating their enforcement to administrative agencies.
For example, the Clean Air Act did not list every pollutant, or lay out precise standards for controlling each one. Instead, it empowered the EPA (according to Wikipedia)
to construct a list of Hazardous Air Pollutants as well as health-based standards for each one. There were 187 air pollutants listed and the source from which they came. The EPA was given ten years to generate technology-based emission standards.
This kind of thing happens across the government. The FDA might ban some food additive, and then respond immediately with a new ban if food companies just tweak the formula in some trivial way.
Under non-delegation, though, every such decision could be challenged in court, and ultimately be decided by the corporate-favoring regulation-hating 6-3 majority. The Atlantic’s Nicholas Bagley (a University of Michigan law professor) draws the conclusion:
The nondelegation doctrine isn’t about democracy. It’s about the power to restrain government. And it will be wielded as opportunistically against a President Biden as it has been wielded against Whitmer.
What Biden should say about expanding the Court. When FDR threatened to “pack the Court” by increasing its size so that he could appoint new justices, there was good reason to do so. The Court was enforcing a theory of economics and of the government’s relationship to the economy that the American people no longer believed in. The country wanted to change, and the Supreme Court would not let it. Only by relenting did the Court make Roosevelt’s power move unnecessary.
And if all you are allowed is a short answer, that’s the right response, because “yes” and “no” are both premature. I’d like to hear Biden answer the question like this:
Pack the Court? I hope it doesn’t come to that. I can promise you this: I will not come into office on Day 1 saying, “We need to change the Supreme Court.”
But as everyone can see, there are several conservative biases in our system, and those biases are combining to produce a Supreme Court that radically diverges from the American people.
Twice in the last seven elections, a Republican has become president even though another candidate got more votes. Similarly, Republicans currently have a majority in the Senate, even though their senators represent fewer voters. That situation has not been uncommon in recent years. And since the President and the Senate choose the Supreme Court, over time the Court has become far more conservative than the American people.
Now, that doesn’t have to be a problem. When John Roberts was being confirmed as chief justice, he said his political opinions didn’t matter, because a justice is just an umpire, calling balls and strikes according to a strike zone defined by the laws and the Constitution. If he, and the rest of the Court, can hold to that discipline, then they won’t get any trouble from me.
But I can’t help noticing that several times in the last two decades, the Court hasn’t called balls and strikes, but has put its thumb on the scale of politics, nearly always on the Republican side. The Court wasn’t calling balls and strikes when it opened the spigots of corporate money in Citizens United. It wasn’t calling balls and strikes when it undid the Voting Rights Act, which had been renewed by Congress in a near-unanimous vote. It wasn’t calling balls and strikes when it shrugged off partisan gerrymandering. In those cases, it was taking a political position and favoring a political party.
If it continues down that road, then we will have a problem.
Right now, the Court is considering whether to undo the biggest achievement of progressive politics in the last few decades, the Affordable Care Act — ObamaCare. If they do, they will take health insurance away from tens of millions of Americans, and remove protections from the additional tens of millions who have preexisting conditions — including everyone who has survived Covid-19. The argument for striking down that law is based on a novel legal theory that no one who voted either for or against the ACA ever considered at the time. It’s bogus, and they know it.
The ACA passed because the American people were worried about their healthcare and wanted change. They still want change; they want more change than we were able to give them then. And healthcare is just one area where the American people are crying out for change.
Early in the 20th century, the American people were also crying out for change. And so they elected state and federal representatives who legislated for a minimum wage, a limited work week, a safe workplace, and the right to organize a union. But the Supreme Court of that era said no, and invalidated law after law — hundreds of them. What that Court said to the American people was: “I don’t care what you want, you can’t have change.”
And so the change that the American people had wanted since the turn of the century was delayed until the New Deal in the 1930s.
Now if that’s what this Court has in mind, to thwart the will of the voters for decades, for as long it can, in service to an ideology that the American people don’t share, then I think the elected branches of our government will have to respond.
What will that response look like? I don’t know yet, because I haven’t seen what the Court will do. If it behaves itself, if it lets the elected branches of government do the things that the American people elect us to do, then there will be no response, because there will be no problem.
But if I’m not going to begin my administration with a plan to change the Court, I’m also not going to begin my administration by writing this Court a blank check, by saying, “Abuse your power any way you like, and I’ll just sit on my hands.”
If I’m elected, then I will have a responsibility to the voters who elected me. And if I find that the will of those voters is consistently being blocked and subverted by judges who not only are unelected, but who were appointed by people who lost the popular vote themselves, then I will have to consider the options that our constitutional system provides.
People, not politicians. That position represents a subtle shift in framing from what many other Democrats are saying. Yes, the problem has been caused by shenanigans in the Senate, capped off by the plan to rush Amy Coney Barrett’s nomination through before the voters can do anything about it. But framing this as tit-for-tat shenanigans — we’ll pack the Court if you jam Barret through — is bad politics. That’s a threat to make behind closed doors, not to broadcast to the public.
Biden should hinge his position not on how the Senate behaves, but on how the Court behaves. Striking back because Mitch McConnell stole Merrick Garland’s seat is a he-hit-me-first argument that just increases a lot of Americans’ disgust with politics, because it’s about politicians, not about them. But framing the argument as “The Supreme Court is taking away your health insurance” or “The Supreme Court won’t let us protect your drinking water” or “The Supreme Court won’t let us stop mass shootings” is a different story.
You want change, but the Supreme Court won’t let it happen. Help us fix the Supreme Court. That’s the right argument to have.
Three weeks from Tuesday, we start counting the votes, which are already being cast. I’m sure it will seem like forever. Right now, Trump is sinking, and his October surprises are looking like the “secret weapons” Hitler was counting on as the Russians closed in on his bunker: No vaccine is coming before the election, and John Durham isn’t going to indict Joe Biden.
This week, I decided to step back from the Trump Circus and look once again at the prospect of a 6-3 conservative majority on the Supreme Court: what it means for the continuance of minority rule, how it might change the fundamental rules of our government, and what Joe Biden should say about it. In particular, I look away from the issues we usually associate with the Court — abortion, guns, gay rights, affirmative action — and focus on the possibility that a conservative Court might undermine the legal basis for government to regulate big corporations by reviving a “non-delegation” doctrine from the Bad Old Days of the Supreme Court: the Lochner Era.
That post looks at what’s going on now in conservative jurisprudence and how it relates to legal history. I close by recommending a long answer for Joe Biden to give to the question “Do you support packing the Supreme Court?” (The short answer is: not if they behave themselves.)
That’s done but for proofreading, so it should be out shortly.
The weekly summary will discuss the White House Covid Cluster, and just how little we’ve been allowed to know about it. Also the 25th Amendment, and why it should have been invoked this week. The increasing likelihood that no further stimulus is coming. And, BTW, let’s not forget that this week included a right-wing plot to overthrow the government of Michigan, one of the states Trump urged his supporters to “liberate” this summer. Who could have imagined that armed yahoos would respond to something like that?
Republican senators are openly dissing democracy. Trump’s return to campaigning despite being infected completely obscured his abuse of the White House grounds and the Marine Band as campaign props. The NYT outlined the scope of Trump’s pay-to-play corruption. And the virus is running wild again, especially in the Dakotas.
That should all be in the weekly summary, which should be out by noon, EDT.
Schadenfreude was our top lookup on October 2nd, by a very considerable margin, following President Trump’s announcement that he and the First Lady had tested positive for COVID-19.
I feel like it’s my responsibility to watch things like this, or review the video later, or at least read the transcript. But in fact, I have done none of those things. The next morning (Wednesday), I watched the first ten minutes, plus the clips the media wanted to show me, and decided that life is too short.
In early September, Politico did an article on Trump’s debate strategy, and it rings pretty true: The point of all the interruptions and other antics was to provoke Biden into an embarrassing stuttering incident. It didn’t work. However, it did hide the fact that Biden has plans for his administration and Trump doesn’t.
A post-debate Politico article “Trump Is Not the Man He Used to Be” compares this debate performance to his 2016 debates, particularly the one with Hillary Clinton right after the Access Hollywood tape threatened to derail his entire candidacy.
With his back to the wall, facing scrutiny like no presidential hopeful in memory, Trump turned in his strongest stage performance of 2016. He was forceful but controlled. He was steady, unflappable, almost carefree. Even his most noxious lines, such as suggesting that Clinton belonged in jail, were delivered with a smooth cadence and a cool smirk, as if he knew a secret that others didn’t.
On substance, I thought he lost that 2016 debate, as he lost all the Clinton debates. But he restored an image that just enough voters found appealing: the mischievous boy thumbing his nose at authorities and all their stupid rules. The supposed “gaffes” of 2016 — calling Mexican immigrants “rapists”, refusing to be impressed by John McCain’s war-hero status, mocking a reporter’s disability, telling his supporters to “knock the hell” out of protesters at his rallies, and so on — were delivered with an air of “look what I can get away with”.
A certain kind of voter, particularly the white male non-college voter Trump was hoping to turn out, loved that. (Rush Limbaugh appeals in the same way, for example, when he tries to see how close he can come to saying the N-word on the radio.) To them, it was fun. While Trump was often compared to a bull in a china shop, his base saw something equally destructive but much more humorous, like the Blues Brothers driving a stolen police car through a shopping mall, leaving a trail of broken glass and crushed mannequins. Sure, it’s wrong and would make a lot of people mad, but wouldn’t you love to get away with something like that?
It might be hard to remember through the fog of these past four years, but the animating sentiment for Trump during his first run for the presidency wasn’t hatred or division. It was fun. He was having the time of his life. Nothing Trump had ever experienced had showered him with so much attention, so much adulation, so much controversy and coverage. He loved every moment of it.
But that look-at-me-I’m-a-bad-boy attitude was completely absent from the Biden debate. He seemed more like the bad boy who gets caught and then whines about his punishment.
The president wasn’t enjoying himself last night. … There was no mischievous glint in his eye, no mirthful vibrancy in his demeanor. He looked exhausted. He sounded ornery. Gone was the swagger, the detached smirk, that reflected bottomless wells of confidence and conviction. Though described by Tucker Carlson in Fox News’ pregame show as an “instinctive predator,” Trump behaved like cornered prey—fearful, desperate, trapped by his own shortcomings and the circumstances that exposed them. He was a shell of his former dominant self. … Watching the president on Tuesday night felt like watching someone losing his religion. Trump could not overpower Biden or Wallace any more than he could overpower Covid-19 or the cascading job losses or the turmoil engulfing American cities. For the first time in his presidency, Trump appeared to recognize that he had been overtaken by events.
You might think denouncing violent white supremacists would be an easy call for any American politician, but Trump couldn’t get it done during the debate. Prodded by Chris Wallace to ask the Proud Boys to “stand down”, Trump instead asked them to “stand back and stand by” because “somebody has to do something about Antifa and the left”.
After considerable pearl-clutching (but no sharp criticism) from Republican senators, Trump backed off, sort of. In his last interview before announcing his Covid infection, Trump told Sean Hannity:
Let me be clear again: I condemn the KKK. I condemn all white supremacists. I condemn the Proud Boys. I don’t know much about the Proud Boys, almost nothing, but I condemn that.
Let’s parse all this a little. Antifa is largely a right-wing myth. (We’ll discuss below the possibility that something else is going on.) As FBI Director Christopher Wray has explained: “It’s not a group or an organization. It’s a movement or an ideology.” Even if somebody needs to “do something” about Antifa (and I suspect nobody does), that “somebody” should be local law enforcement, not armed gangs of right-wing vigilantes.
But let’s say Trump really didn’t know anything about the Proud Boys Tuesday night, and still knew “almost nothing” about them after two days of controversy. Then why was he giving them instructions on national TV?
So far, three senators — Ron Johnson, Mike Lee, and Thom Tillis — have tested positive. Two of them — Lee and Tillis — are on the Judiciary Committee that needs to hold hearings on Barrett. Two others — Ted Cruz and Ben Sasse — are self-quarantining.
The first obstacle for Republicans may be the committee vote, tentatively planned for Oct. 22.
To report out a nomination, a majority of the 22-member committee will need to be present, and Democratic senators will not help Republicans make quorum, aides said Sunday. Although proxy voting is allowed in the Judiciary Committee, it works only when there is a quorum present and the proxy votes don’t change the outcome of the vote, according to committee officials.
I am sure we will see many procedural maneuvers between now and November 3, and I don’t want to predict how they will play out.
but let’s think about undecided voters
Several people this week have asked me some version of: “After everything we’ve seen these last four years, how can anybody be undecided in this election?”
Given my advanced case of male answer syndrome, of course I have a theory: I picture two kinds of undecided voters: the apathetic and the torn.
To understand apathetic voters, think about some level of government you don’t usually pay attention to. For example, maybe you don’t have kids, and school board elections go by without you noticing. Or maybe you just moved to a new town, and haven’t found a reason yet to care about who your alderman is.
Probably you hear something about these elections, but it just goes in one ear and out the other. You know some of your neighbors care, but to you it just sounds like a bunch annoying people yelling at each other.
That’s how apathetic voters are about national politics, and the media’s both-sides-do-it narrative feeds their inclination to stay ignorant. “Some people love Trump, and some people hate him, but they’re all crazy and I steer clear of them.”
if these people do end up voting, it’s a last-minute decision. The night before or the morning of Election Day, they’ll look up some issue they care about on the internet, or talk to some friend they think is well informed, and that’s how they’ll make up their minds. They’re highly vulnerable to misinformation, so they’re largely who the Russians target with their social-media bots. But I think Biden does have a persuasive last-minute message to offer them: “Given the 200,000 dead of coronavirus, the restrictions on what the rest of us can safely do, the high unemployment, the enormous budget deficit, and the growing racial tensions in our country, do you think America is better off than it was four years ago? Has Trump kept his promise to make us ‘great again’, or should somebody else get a chance to lead us?”
Torn voters are fighting an internal battle. Some part of them has an irrational attraction to or repulsion from one of the candidates, but they don’t know how to justify giving in to that urge. (I irrationally wanted to vote for John McCain in both the 2000 and 2008 New Hampshire primaries. In 2000 I did.)
I believe torn voters were the key to Trump’s 2016 victory. They knew Hillary Clinton would be the better president, but they didn’t like her, and wouldn’t it be a hoot to have that other guy? And since he wasn’t going to win anyway, what harm would it do to vote for him? The Crooked Hillary meme and the last-minute Comey announcement about her emails gave them the permission they needed, and so the Undecideds all broke to Trump at the last minute.
This year, I think a lot of the undecided are Trump’s 2016 voters who now are torn. They know he’s a bad president, but they don’t want to admit they were wrong. I think a lot of them will break to Biden at the last minute, largely because of the point made in the Politico article I quoted above: Trump isn’t fun any more. On Election Day, the thought “All this bullshit could just be over” will ripple through the electorate.
Without getting into the legal weeds, the bottom line is that there is no way to throw the election into the House — where the Republicans would win if they could hold their current 26-24 advantage in state delegations — without either a 269-269 tie or a third candidate getting electoral votes. If some votes are thrown out, the candidate with the most electoral votes still wins, even if the total falls below 270.
Mail-in ballots, of course, are designed to be mailed. But if you aren’t confident in the mail delivering your ballot on time — say, because Trump is intentionally sabotaging the Post Office — you might set your mind at ease by taking your ballot to a dropbox that election officials will open themselves.
Except in Texas, apparently.
The rule affects mainly a few populous counties, including Harris, home of Houston, which had set up twelve collection spots for its 2.4 million registered voters.
The highly populated counties are exactly the ones where Democrats need a big turnout. Abbott claimed his order will “help stop attempts at illegal voting”, without presenting any evidence that illegal voting is a problem. But the move is certain to reduce attempts at legal voting, if courts let it stand.
Another underhanded scheme comes from Michigan, where two Republican operatives face charges in a robocall campaign to scare people out of voting by mail.
The calls told the recipients falsely that voting by mail would put their information in databases used for arrest warrants, debt collection and “mandatory vaccines.” … According to Thursday’s announcement, the robocalls went out to nearly 12,000 residents in Detroit. Attorneys general offices in New York, Pennsylvania, Ohio and Illinois also told [Michigan Attorney General Dana] Nessel that there were similar calls in their states, Nessel’s announcement said.
If Covid forces Bill Stepien to step down as Trump campaign chair, would you want to replace him, given what’s happened to your predecessors? Paul Manafort is serving a prison term (at home, due to Covid), Steve Bannon is under indictment, Brad Pascale is in the middle of some kind of personal crisis that has seen him arrested and hospitalized, and now Bill Stepien has Covid. Corey Lewandowski is the lucky one, so far: the misdemeanor battery charge against him was dropped.
I hadn’t been taking seriously the possibility that Iowa Senator Joni Ernst could lose, but apparently I should: A recent poll has her down 51%-39%.
The NYT’s Farah Stockman drew attention to a fairly obscure blog Public Report by Santa Monica photographer Jeremy Lee Quinn. Quinn has been studying anarchist groups that have been trying to turn Black Lives Matter protests into riots.
Mr. Quinn began studying footage of looting from around the country and saw the same black outfits and, in some cases, the same masks. He decided to go to a protest dressed like that himself, to figure out what was really going on. He expected to find white supremacists who wanted to help re-elect President Trump by stoking fear of Black people. What he discovered instead were true believers in “insurrectionary anarchism.”
These folks appear to be the root of what Trumpists call “Antifa”, but really they are something different. Quinn offers this Venn diagram., and writes: “Anarchist action is distinct from Antifacist action in which counter-demonstrators clash with the right wing to actively counterprotest their rallies”
I hope to have time to examine this better in coming weeks.
and let’s close with something weird
Weird Al Yankovich turned the presidential debate into a song with a catchy title: “We’re All Doomed“.
Bad as it is, what we know so far about Trump’s taxes may not be the worst of it.
One persistent problem of 2020 is that it’s hard to hold an issue in your mind for any length of time. The New York Times revealed Trump’s taxes just a little over a week ago, and since then two other big stories — the debate disaster and the White House coronavirus outbreak — have all but washed the tax issues out of the news. I think they deserve a little more attention than that.
Narratively, the problem with the tax story is that it’s a bunch of smaller stories, none of which encompasses the whole thing. It’s certainly about tax avoidance, maybe legal and maybe not. But it also could be about laundering money for people we can’t identify.
$750. The headlines that came out of the original NYT article were how little Trump has paid in taxes: $750 in each of 2016 and 2017, and nothing at all in many other years. And that certainly is scandalous, whether or not it turns out to be legal. I pay considerably more than that every year, and probably you do too. Nobody thinks Joe Biden is a billionaire, but he paid $299,346 in 2019.
Trump famously said “that makes me smart” when Hillary Clinton accused him of not paying his fair share of taxes in 2016. But that’s the same kind of “smart” that got him excused from Vietnam with bone spurs — unlike the “suckers” and “losers” who died for their country. It’s similarly “smart” to stiff your contractors, trade in your wives when they start to age, hire illegal immigrants to tend your golf courses, create a phony university and a phony foundation, and do a lot of the other things that have kept Trump safe and rich and feeling pleased with himself.
But I don’t think most Americans want to be led by someone with those kinds of smarts. Trusting “smart” people like Trump will usually get you outsmarted eventually. Someday, it will be smart to screw you the way he has screwed everybody else.
The bad businessman. The other headline from the NYT article was that many of Trump’s most famous properties are money-losers, and always have been.
The second article in the NYT series (the newspaper claims more are coming) showed how the windfall of income related to his TV show “The Apprentice” bailed him out of the financial difficulties created by his other business failures. In other words: His ability to play a successful businessman on TV covered up the fact that he actually isn’t one.
He sold his image in a variety of ways, many of which were harmful to the people who trusted him. The NYT finds he was paid $8.8 million to promote ACN, a multi-level marketing company that promoted what were essentially pyramid schemes.
The NYT paints a picture of a man who gets big windfalls (the first one being at least $400 million from his father), and then proceeds to fritter them away.
Debt. Trump owns a lot of assets and has taken out a lot of loans against them. The NYT estimates that about $400 million of loans come due in the next four years. We know some of the lenders (Deutsche Bank), but not all of them.
Nothing Trump is doing as a businessman is generating much cash. So during his prospective second term, he will either need to get new loans or sell assets. The security vulnerabilities here are obvious: If he gets loans or finds buyers, particularly from abroad, we will never know whether there is a bribe hidden somewhere in that money.
Ivanka? One way Trump lowered his taxes was to claim millions in “consulting fees” as business expenses. In at least some of those cases, it looks like he was funneling money to his kids, who shouldn’t be getting consulting fees from businesses that also list them as employees.
This resembles an apparently illegal scheme that Trump’s father used to funnel money to him.
The Times traces about $750K that went to Ivanka via this path. But CNN speculates about the other $25 million in consulting fees:
So we don’t know who received the other $25-ish million that Trump wrote off to “consulting fees” during that time. (Worth noting: The Times reports that Trump wrote off roughly 20% of all income he made on projects over that time to “consulting fees.”) Given the apparent payment to Ivanka Trump revealed by the Times, however, it’s not terribly far-fetched to wonder whether all (or much) of those “consulting fees” went through a similar process: Paid to one of Trump’s offspring who were serving as both managers of these operations for the Trump Organization and as consultants to the projects as well.
Money laundering? The most serious accusation is speculative, but the speculation explains transactions that are otherwise mysterious. A tweetstorm by author Adam Davidson delves into one Trump property (his golf course in Scotland) in detail, and finds some strange bookkeeping.
The thing everyone reports is the losses–the shareholder (Trump) has lost more than £7M. But the interesting stuff is the fixed asset value and the creditors — over one year. Trump is all of them: he owns the asset, lends the money, owes the money, is owed the money. …
There’s much more to say–each line here is fascinating. But the overall picture is crystal clear: Every year, Trump lends millions to himself, spends all that money on something, and claims the asset is worth all the money he spent.
He cannot have spent all that money on the properties. We have the planning docs. We know how much he spent — it’s far less than what he claims. The money truly disappears. It goes from one pocket to another pocket and then the pocket is opened to reveal nothing is there.
… These financials are clear: this is not a golf business, it’s a money disappearing business.
… If this is a money disappearing business and it is not only tax fraud, then he is making money disappear for somebody else and charging some sort of fee. Which might explain why a money-losing golf course pays huge fees to its owner.
Two obvious questions:
What would happen if Trump’s other money-losing properties came under similar scrutiny?
Didn’t the Mueller investigation look into all this?
Trump had also done lots of business with Deutsche Bank, and although Mueller issued his subpoenas secretly, word somehow leaked to 1600 Pennsylvania Avenue. When the White House asked Mueller’s team what they were examining, Mueller responded that Manafort, not Trump, was the target.
“At that point, any financial investigation of Trump was put on hold,” writes Andrew Weissmann, a veteran federal prosecutor who played a senior role in Mueller’s investigation, in a new book. “That is, we backed down — the issue was simply too incendiary; the risk, too severe.
Of all the things I hold against Trump, this is the one I will have the hardest time forgiving: He has made me realize how spiteful I can be.
Schadenfreude and karmic justice. I wish I could report that when I heard about Trump testing positive for the coronavirus, I felt a wave of human compassion. Because politics is one thing and life is another, and we’ve got to hang on to our humanity.
But what I actually thought was: “Maybe there really is a just God.” It wasn’t exactly schadenfreude, which would be more like “I’m glad that bastard is suffering.” (Coincidentally, Merriam-Webster reported a 305-times increase in the number of searches for schadenfreude on October 2.) But it’s close: Hearing about his diagnosis made the Universe seem like a safer, saner place.
This is the kind of thing a good person would never say about another human being, but (in both a karmic and a practical sense) nobody had this coming like Trump. Practically, he has been ignoring precautions, running around the country maskless, not enforcing sound workplace hygiene practices at the White House (which The Atlantic’s Peter Nicholas presciently described as “a petri dish” in August), and doing everything he could to discourage others from taking precautions (like berating a White House reporter for wearing a mask to a briefing).
How many of America’s 214K-and-counting coronavirus deaths are Trump’s fault? It’s impossible to say precisely, but here’s how I think about it: Culturally and economically, the country that best resembles the US is Canada. Canada currently has 251 Covid deaths per 100K people. The US has 647. If our government could have handled the virus as well as Canada’s, and kept our deaths-per-100K down to 251K, we’d have only 39% of the deaths we currently have, or 83K rather than 214K.
That calculation would say that about 131K American deaths are on Trump. That’s about 33,000 Benghazis or 44 9-11s. If you make Germany or Australia the reference country, the number gets even bigger. If you use Japan, practically all the deaths are his fault.
So, am I rooting for him to suffer and die? No. But a Universe where he skates along unaffected by the damage he causes just feels wrong to me.
BTW, if you find yourself feeling guilty about your own lack of sympathy for Trump, take a look at how he responded during the 2016 campaign when Hillary came down with pneumonia.
The philosopher Aaron James has defined a technical term to describe people who want to claim the benefits of rules governing politeness and propriety, while always holding themselves exempt from the duties, inconveniences, and sacrifices those rules impose: They are assholes.
Is he really sick? On Friday, just about everybody I talked to was asking this question, and wondering if the Covid thing was a play for sympathy or an excuse for ducking the rest of the debates or a way to divert attention from his taxes or keep Biden out of the headlines. It’s crazy that we even have to consider the possibility of a presidential health hoax, but we do. Trump has lied about everything else, so why not this?
In general, though, I don’t believe in big conspiracies, and the longer this goes on, the more people would have to be in on it. So by now I’m pretty sure that he really is sick.
But even Friday morning the hoax explanation seemed unlikely, because catching Covid undermines so many things Trump has been working to accomplish. For months, he’s been trying to induce voters to think about anything else. He’s been telling his rallies that the pandemic is fading. Plus, he wants to present an image of larger-that-life strength. Trump aims to inspire awe and love in his supporters, and hate and fear in his enemies. People like me wondering if we ought to feel sorry for him is the last thing he wants.
His scandalous response. It’s not a scandal that Trump caught the virus, but what he did next is: After he knew he had been exposed, he continued to meet people who were not warned about the risk. (What the Wall Street Journal is reporting is even more damning: He had already seen a positive test before phone interview with Sean Hannity Thursday evening, but pretended he hadn’t.)
There’s been a lot of controversy about the timeline, but we do know this much: Hope Hicks was diagnosed Wednesday, so by Thursday afternoon Trump knew that he (and probably a lot of his staff) had been exposed and might be carrying the infection; his positive test was announced several hours later. Nonetheless, he went to a fund-raiser at his club in New Jersey and schmoozed with his donors. He traveled there with his staff on Marine One, a close-quarter helicopter without proper ventilation.
The fund-raiser included a round-table photo op with 18 quarter-million-dollar donors, few (or perhaps none) of whom were wearing masks. A larger photo op was held for mere $50K donors, and there was an outdoor event for the low-rollers who may have only given a few thousand. In all, we’re talking about hundreds of people. They aren’t his enemies; they’re the people he’s depending on to get him a second term.
Friday, the campaign emailed attendees to tell them about Trump’s positive test. The email did not recommend that they quarantine or get tested themselves, but merely said they should contact their doctors if they developed symptoms.
If you ever need an example to back up the point that Trump cares about no one but himself, here it is. He doesn’t even care about his staff, or the people who give big donations to his campaign.
And if you need an example to make the case that Trump is typical of an entire generation of conservative assholes, use Senator Ron Johnson of Wisconsin. Friday, he went to a fund-raiser after he had a positive test.
What if he can’t go on? One question on everybody’s mind: What happens if illness causes Trump to withdraw or die? The Washington Post has it covered:
The bottom line is that the RNC would determine who the replacement candidate would be, should it come to that unfortunate situation. And Republican slates of electors in states the president won, because he remains on the ballot, would very likely follow the RNC’s recommendation.
But one last possibility to ponder: If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.
The Atlantic surveys the same ground with more emphasis on the chaotic scenarios. That article also reveals history I didn’t know: Presidential candidate Horace Greeley died between the 1872 election and the date when electors cast their ballots, and VP candidate James Sherman died before election day in 1912. Both were on losing tickets, so the course of the nation didn’t hinge on how the rules were interpreted.
The White House cluster. After learning that the President and First Lady were infected, the next question was “Who else?” Many political movements fail by believing their own rhetoric, and Trump has been saying for a long time that the virus isn’t a big deal; we should all just get back to normal as fast as possible. Among Trumpists, mask-wearing and other good public-health practices are looked on as wimpy, as “living in fear“. (Packing heat at the supermarket, on the other hand, is just a reasonable precaution.)
when I arrived at the White House this morning, I was struck by the lack of safety protocols in place. The most famous address in America now feels like a coronavirus breeding ground. … Some of the West Wing desks are spaced so closely together, and some of the offices are so cramped, that it’s tough to see how people avoid exposure at all. In one small office today, two aides stood and spoke to each other without masks. Young aides sat at desks in an open bullpen-style space without masks. Walking through the hallways accessible to the press, I wore a mask, but I haven’t been tested for COVID-19; had I removed my mask for some reason and coughed or sneezed, there was no hint of a mask patrol prepared to whisk me out the building. The vibe was shockingly lax.
Apparently nothing is going to change. The White House is saying that CDC guidelines make mask-wearing optional, so that’s what they’ll stick with.
How is he doing? This gets into the breaking-news area I try to avoid. (I can’t compete with CNN, and you shouldn’t get your breaking news from a weekly blog anyway.) But the striking thing about this weekend’s announcements was how much bullshit you had to wade through to find out anything. Had the President needed oxygen? The doctor kept dodging the question and repeating that he wasn’t on oxygen now. Had his x-rays revealed any pneumonia or lung damage? Another dodge.
Eventually we found out that he did spike a high fever at some point. (How high? They won’t say.) He had a couple of episodes of low blood oxygenation. He has received multiple cutting-edge treatments, some of which are only recommended for severe cases. That raises three possibilities:
He’s sicker than the White House is letting on.
Doctors are being super-aggressive because he’s the President.
Trump is a victim of “VIP syndrome”, where doctors yield to the judgment of an important patient rather than doing what they think is best.
Photo ops. Whatever energy Trump does have has been devoted to controlling the narrative, rather than getting well or running the country. He has released two Twitter videos from Walter Reed Hospital, and Sunday he had two Secret Service agents risk their lives to drive him around the building, so that he could wave to his fans.
Every single person in the vehicle during that completely unnecessary Presidential “drive-by” just now has to be quarantined for 14 days. They might get sick. They may die. For political theater. Commanded by Trump to put their lives at risk for theater. This is insanity.
… That Presidential SUV is not only bulletproof, but hermetically sealed against chemical attack. The risk of COVID19 transmission inside is as high as it gets outside of medical procedures. The irresponsibility is astounding. My thoughts are with the Secret Service forced to play.
So file this with the other examples of Trump not caring about anyone but himself.
During the Trump Era we tend to forget that America has had previous presidents who behaved differently. But it’s worth thinking about that now. It’s not crazy for a president to want to reassure the country that he’s OK and that America is still in good hands. But other presidents would have used their limited energy to do work, not pull a stunt.
For a normal president, it would make perfect sense to, say, be on the phone lobbying senators to support his Supreme Court nominee, or urging members of Congress to work out their differences and send him a stimulus bill. Mark Meadows could tell us he was doing those things, and the people he was calling could verify how on-the-ball he was.
Instead, he had to leave the hospital and wave to his adoring public.
Political impact. Something you have to bear in mind is that prior to announcing his infection, Trump was losing the presidential race pretty badly. So anything that shakes up the race at least interrupts a story that was trending against him. 538’s national polling average has Biden up by 8%, and polling above the magic 50% mark that Hillary couldn’t get to, no matter far ahead she was. Ditto for the RCP average, which has Biden up by 8.1% at 50.6%.
Focusing on the Electoral College, 538’s most likely tipping-point state is Pennsylvania, where Biden is ahead by 5.3%, and its tipping-point status depends on Trump also winning Florida, Arizona, North Carolina, and Ohio, where Biden has smaller leads.
For comparison, Texas is closer than that: Trump is ahead by only 4%. So a landslide where Biden takes Texas (and Iowa and Georgia) is currently more likely than the narrowest possible Trump win.
If anything, the more recent polls, taken after Tuesday’s debate but before Trump’s positive test was announced, were even worse for Trump: Biden was up 14% in an NBC/WSJ poll released Sunday.
It wouldn’t surprise me if the short-term effect of Trump’s diagnosis is a small sympathy bump. But long-term I don’t see how it serves him. Anything that keeps the pandemic in the headlines is bad for him, because he has bungled our government’s response so badly. Anything that makes him look weak is bad for him. Cancelling rallies is bad for him. I don’t think his first debate performance did him any good, but cancelling the remaining two debates would remove opportunities for him to turn things around.
So no. Even if he recovers completely, I don’t think getting sick does Trump any good.
Just when you think you know what you need to cover, something else happens. This week the Sift was going to be about Trump’s taxes and that horrible debate, and maybe a brief discussion of undecided voters — and then Friday morning I wake up to find that Trump has tested positive for Covid-19.
That development has so many angles that it outgrew the weekly summary and became its own article. So “Schadenfreude, and seven other reactions to Trump’s illness” should be out soon. I’m still going to try to write about the implications of what the NYT has revealed about Trump’s taxes, which I hope to post around 11 EDT. That puts the weekly summary off to around 1.
This week everybody was talking about the looming Trump coup
The most important article of the week was Barton Gellman’s alarming “The Election That Could Break America“. Together with Trump’s repeated refusal to commit himself to a peaceful transfer of power — something that has gone without saying in all previous administrations — we face the possibility that a significant majority of the American people might try to remove Trump from office and fail.
Biden’s current polling lead averages around 7.2%, which is sizeable and has been quite stable. But (as we saw in 2016), the Electoral College favors Trump, so Biden’s margin is smaller — 4.5% — in 538’s current tipping-point state of Pennsylvania.
Imagine that Trump’s voter-suppression tactics knock that margin down further, and that Trump’s people (who believe his claims that Covid-19 is not a big deal) are more likely that Biden’s to vote in person on election day. So on election night, Trump appears to be leading, but the lead shrinks as more and more mail-in ballots are counted.
Now Trump’s bogus drumbeat about mail-in voting fraud comes into play, and he charges that he has actually won, but fraudulent votes are being manufactured to steal his victory. Like most of what Trump says, this is bullshit, but it gives cover for Pennsylvania’s gerrymandered-into-power Republican legislature to exercise a long-dormant constitutional power to ignore the vote count and name its own slate of Trump-supporting electors.
Something similar happens in Ohio and Arizona and North Carolina and Florida, which represent enough electoral votes to put Trump over the top. Disputes about this percolate through Congress, and nobody is sure what happens then.
The bigger Biden’s national margin, and the more states that he appears likely to win if all votes are counted, the farther-fetched all this gets. But it’s scary to realize that it is not an impossible scenario.
If that does start to play out, the difference may come down to Belarus-style demonstrators in the streets in Harrisburg or Columbus or outside the White House or wherever the bad stuff seems to be centered. Think about what you’re prepared to do and where you’re prepared to do it, and check websites like Choose Democracy for suggestions.
But above all, don’t freeze. Pushing Biden to a sizeable legitimate margin is the first line of defense against the Trump coup.
Republicans pushed back gently and uncertainly against Trump’s threats to democracy. Lindsey Graham:
Now, we may have litigation about who won the election, but the court will decide and if the Republicans lose, we will accept that result. But we need a full court
That’s still a long way from “Let the voters decide”, as Garrett Graff observes:
What Republicans are really saying here is they’ll support a peaceful transition to Biden *if* their outright voter suppression, hostile efforts to curtail the ability of people to vote at all, AND court packing to influence election disputes all fail.
Florida voters thought they had reinstated the voting rights of felons who had served their time (except for murderers and sex offenders) when they overwhelmingly passed Constitutional Amendment 4 in 2018. But immediately the legislature added the provision that all fines and court costs needed to be paid as well. Many of the felons are poor, so the extra requirement amounts to a poll tax: If you can’t pay, you can’t vote.
If a person is still unsure about fines, fees, costs, and restitution, and the impact upon restoration of voting rights, the person can ask for an advisory opinion from the Florida Division of Elections. Please review section 106.23(2), Florida Statutes, and Florida Administrative Code Rule 1S-2.010 for how to ask for an advisory opinion and what information is required.
So Bloomberg and others have stepped in to clear the ledger. That’s the effort the Florida AG wants to investigate.
If things are going well for Trump, why is the campaign mastermind behind the Tulsa rally threatening to kill himself?
The New York Times has obtained tax-return data extending over more than two decades for Mr. Trump and the hundreds of companies that make up his business organization, including detailed information from his first two years in office.
What do those records show?
Donald J. Trump paid $750 in federal income taxes the year he won the presidency. In his first year in the White House, he paid another $750.
He had paid no income taxes at all in 10 of the previous 15 years — largely because he reported losing much more money than he made.
… The picture that perhaps emerges most starkly from the mountain of figures and tax schedules prepared by Mr. Trump’s accountants is of a businessman-president in a tightening financial vise.
Most of Mr. Trump’s core enterprises — from his constellation of golf courses to his conservative-magnet hotel in Washington — report losing millions, if not tens of millions, of dollars year after year.
Revenue from “The Apprentice” cancelled out a lot of his business losses, but that money is drying up. Meanwhile, $300 million in loans are coming due in the next few years, and the IRS has challenged a $72.9 million tax refund he claimed many years ago.
This all came out yesterday, so I’m only seeing snap reactions. Chris Hayes:
Some people I’m seeing comment on this are vastly overestimating how “normal for a rich guy” these taxes are. Mitt Romney’s taxes were “normal for a super rich guy.” These are not.
With near-zero tax payments, either (a) he’s lying about being a business success, or (b) he’s lying to the IRS about his losses. Take your pick.
My own snap reaction to Trump’s precarious finances: If he can hold on to the presidency, he has nothing to worry about. Vladimir Putin is worth plenty of money, and so is MBS. I’m sure they’d be more than willing to prop up a President of the United States.
If he loses the election, though, he might have a problem. That (along with the possibility of going to jail) might be why he refuses to promise a peaceful transfer.
and Amy Coney Barrett
As was widely predicted, here and elsewhere, Trump has nominated Judge Amy Comey Barrett to rise from the Seventh Court of Appeals to the Supreme Court.
She has been on the short list for previous Supreme Court appointments, so all the major court-watching organizations have their points and counterpoints well prepared. Basically, she is the most religiously radical of the Trump nominees. She’s not just Catholic — like five current justices — she belongs to People of Praise, an inter-denominational group that was one of the inspirations for Margaret Atwood’s The Handmaid’s Tale.
The group believes in prophecy, speaking in tongues and divine healings, staples of Pentecostal churches that some Catholics have also adopted in a movement called charismatic renewal. The People of Praise was an early leader in the flowering of that movement in North America. It is ecumenical, but about 90 percent of its members are Catholic.
… Some former members criticize the group for deviating from Catholic doctrine, which does not teach “male headship,” in contrast to some evangelical churches. The personal advisers can be too controlling, the critics say; they may betray confidences, and too often they supplant the role of priest.
Mr. Lent [a PoP leader] said the group’s system of heads and handmaids promotes “brotherhood,” not male dominance. He said the group recently dropped the term “handmaid” in favor of “woman leader.”
“We follow the New Testament pattern of asking men to take on some spiritual responsibility for their families,” he said.
Conservatives are already gearing up their charges of “anti-Catholic bigotry“, but so far there is no substance behind those claims. Literally no one is attacking Barrett for being Catholic.
It wasn’t the American Civil Liberties Union or some other bastion of liberalism that questioned Joe Biden’s Catholic faith. No, it was a speaker at this year’s GOP convention, former Notre Dame football coach Lou Holtz, who called Biden a Catholic “in name only” because of Biden’s support for abortion rights. A conservative group called CatholicVote is spending $9.7 million in Michigan, Pennsylvania and other battleground states attacking the devout Biden as an “existential threat” to the church.
And Trump himself rather astonishingly declared that Biden would “hurt God,” and “hurt the Bible,” too. I didn’t hear Pence say anything about Trump’s “intolerance” toward Biden’s faith.
I don’t know a lot about Amy Coney Barrett. But I know she’s accepting nomination from a President actively trying to subvert a national election and threatening to hold on to power by force, an attack on the constitution unparalleled in American history. Do I need to know more?
BTW, I don’t think it’s “bigotry” even if someone suggests that the Court doesn’t need a sixth Catholic. Maybe we could have just a bit of religious diversity, beyond the two Jews and one Episcopalian in the current non-Catholic minority.
If you really want to see religious bigotry, suggest putting an atheist on the Court. Or a Muslim, or a Hindu.
and the lack of Breonna Taylor charges
Wednesday, Kentucky Attorney General Daniel Cameron announced the findings of the grand jury in the police shooting of Breonna Taylor in her Louisville apartment on March 13. None of the three police officers were charged with offenses related to Taylor’s death, though one was charged with reckless endangerment because his bullets penetrated a neighboring apartment. (The NYT summarizes the officer’s action: He “fired into the sliding glass patio door and window of Ms. Taylor’s apartment, both of which were covered with blinds, in violation of a department policy that requires officers to have a line of sight.”)
The two accounts agree on certain facts: Breonna Taylor was not a suspect in any crime, but police believed her ex-boyfriend was using her apartment to receive packages that could be drugs. They obtained a search warrant and broke down the door. Taylor’s current boyfriend Kenneth Walker fired once and wounded the first officer through the door. The three officers shot 30 rounds; none hit Walker, but six hit Taylor. There is no body-camera video from any of the three officers.
Police claim they knocked repeatedly and announced themselves as police before breaking down the door. Walker reported being awakened by knocking, but says he believed he was shooting at home invaders, not police with a legitimate warrant. (Walker called 911 and said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.”) Butler adds this detail:
We know the officers continued to fire long after any threat ceased. A neighbor called 911 to report gunfire, and 68 seconds into the call, you can still hear the shots.
Cameron mentioned the lack of bodycam video, but only as a challenge for investigators to overcome, not as a suspicious detail to interpret against the police. One of the officers who fired was photographed wearing a body-cam holder on his vest. VICE News says: “This contradicts statements by the Louisville Metro Police Department that the officers involved, who work narcotics, do not wear body cameras.”
and the third wave of the virus
The first wave of the virus was centered in the Northeast during March and April. The second wave hit the South and West in June and July. The third wave is attacking the Midwest. The highest per-100K-people new-case rates are in the Dakotas and Wisconsin.
Nationally, the daily new-case rate bottomed out at around 35K two weeks ago, and has risen to 45K. Death rates run 2-3 weeks behind, so we should start seeing an increase there soon.
Governor DeSantis has ended all Covid-19 restrictions in Florida, including placing barriers in the way of local governments having their own restrictions. Bars, movie theaters, sporting events — it’s all fair game now.
Florida’s new-case numbers have flattened out at just under 3,000 a day, and deaths are averaging about 100 per day, with 203 reported on Wednesday. The CDC guidance back in April recommended two weeks of declining numbers before any move to relax restrictions.
More turmoil at the CDC. A week ago Friday it published new guidance about how Covid-19 spreads, saying that virus-carrying aerosol droplets can hang in the air and carry further than the previously recognized six feet. Last Monday it withdrew that guidance.
The CDC said that a draft version of proposed changes had been posted in error. The agency said it was updating information about airborne transmission of covid-19 and would post the new information once the review was completed.
Experts with knowledge of the incident said on Monday that the latest reversal appeared to be a genuine mistake in the agency’s scientific review process, rather than the result of political meddling. Officials said the agency would soon publish revised guidance.
It is a sad fact of the Trump Era that we even need to consider the possibility of political meddling with CDC announcements.
and you also might be interested in …
You may not have noticed, but Trump signed his long-promised executive order on healthcare. Presidents who can’t even unite their own party in Congress can do very little, so this does very little. It is essentially a long list of intentions, without any funding or programmatic change to back them up. Example:
It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.
Who’s going to provide that insurance and how it will be paid for is not spelled out. It might as well be the policy of the United States to give all American children a pony.
Trump’s executive orders banning anti-racism training in both government agencies and government contractors speak volumes. Being openly racist isn’t acceptable in most of America, but Trump is anti-anti-racist, just like he’s anti-anti-fascist.
A big part of Biden’s electability case during the primaries was that he could draw votes from disaffected Republicans. We won’t know for sure until the election, but he is drawing a considerable number of Republican endorsements — most recently from former Pennsylvania Governor and DHS Secretary Tom Ridge, and from John McCain’s widow. Ridge says this:
Pennsylvania voters, along with voters in Michigan, Wisconsin, and Florida, are likely to ultimately determine the next president. So much is at stake. For me, voting is not just a privilege, but a responsibility. And this year, I believe the responsible vote is for Joe Biden. It’s a vote for decency. A vote for the rule of law. And a vote for honest and earnest leadership. It’s time to put country over party. It’s time to dismiss Donald Trump.
and let’s close with something cute
I’ve had cute-puppy weeks, so I guess it’s time for a cute-kitten week. Here’s a kitten who is clearly the reincarnation of a blissed-out yoga master. Meditate on that.
The Weekly Sift 