Month: December 2022

The party of business and culture wars is not feeling the love

The Sherman Antitrust Act of 1890 most famously helped break up Standard Oil in 1911. Appetite in Washington, D.C. for protecting economic competition from monoplies has waxed and waned since then. Industry consolidation in recent decades has shrunk players in various sectors with little purist pushback about competition so long as the kickbacks from megadonors grease the palms of the right people. Especially the Right’s people.

“Republicans and their longtime corporate allies are going through a messy breakup as companies’ equality and climate goals run headlong into a G.O.P. movement exploiting social and cultural issues to fire up conservatives,” Bloomberg reports. Republicans now treat businesses catering to public demand and longterm corporate interest as “woke capitalism.”

Jamelle Bouie has noticed it too. “Flexibility is the first principle of politics.” Maybe second. Republicans’ first principle is maintaining power (New York Times):

I wrote last year about this notion of “woke capitalism” and the degree to which I think this “conflict” is little more than a performance meant to sell an illusion of serious disagreement between owners of capital and the Republican Party. As I wrote then, “the entire Republican Party is united in support of an anti-labor politics that puts ordinary workers at the mercy of capital.” Republicans don’t have a problem with corporate speech or corporate prerogatives as a matter of principle; they have a problem with them as a matter of narrow partisan politics.

Florida Gov. Ron DeSantis has a running feud with companies he sees as catering more to corporate self-interest than Republicans’ political ones. He’s attacked Disney. Now that Elon Musk as turned Twitter into a magnet for MAGA racists and antisemites, advertising on Twitter is a bad look. Companies like Apple that hope to sell products to more than that niche audience of bigots have begun pulling advertising. DeSantis decries Apple’s freedom of dissassociation a “raw exercise of monopolistic power.” Have conservatives suddenly become born-again anti-monopolists?

I shared this on FB ELEVEN YEARS AGO! Some things never change! #wtpBLUE pic.twitter.com/fipjHGQY1Q

— Pat Fuller Democracy is on the line🟧🟦☮️ (@bannerite) December 2, 2022

Bouie finds:

Nonetheless, there is something of substance behind this facade of conflict. It is true that the largest players in the corporate world, compelled to seek profit by the competitive pressures of the market, have mostly ceased catering to the particular tastes and preferences of the more conservative and reactionary parts of the American public. To borrow from and paraphrase the basketball legend Michael Jordan: Queer families buy shoes, too.

The Market doesn’t care about the GOP’s culture-war hysterics. Or about Republicans when forced to choose between them and profits.

Sociologist Melinda Cooper writing in Dissent believes the conflict reveals a tension between “private, unincorporated, and family-based” capitalism (of the Trump variety) and “the corporate, publicly traded, and shareholder-owned” kind. The former includes more right-wing ideologue billionaires of the sort who buy more influence with Republicans in Washington than with Democrats. The latter capitalists’ interests are more cosmopolitan.

Republicans toss around freedom like Mardi Gras necklaces. But freedom of association? Not so much.

The GOP should take a lesson from Karl Marx, Bouie suggests:

Throughout his work, Marx emphasized the revolutionary character of capitalism in its relation to existing social arrangements. It annihilates the “old social organization” that fetters and keeps down “the new forces and new passions” that spring up in the “bosom of society.” It decomposes the old society from “top to bottom.” It “drives beyond national barriers and prejudices” as well as “all traditional, confined, complacent, encrusted satisfactions of present needs, and reproduction of old ways of life.”

Or, as Marx observed in one of his most famous passages, the “bourgeois epoch” is distinguished by the “uninterrupted disturbance of all social conditions.” Under capitalism, “All that is solid melts into air, all that is holy is profaned, and man is at least compelled to face with sober senses his real conditions of life, and his relations with his kind.”

In context, Marx is writing about precapitalist social and economic arrangements, like feudalism. But I think you can understand this dynamic as a general tendency under capitalism as well. The interests and demands of capital are sometimes in sync with traditional hierarchies. There are even two competing impulses within the larger system: a drive to dissolve and erode the barriers between wage earners until they form a single, undifferentiated mass and a drive to preserve and reinforce those same barriers to divide workers and stymie the development of class consciousness on their part.

With capitalism, the devil is in the details. The only real hierarchy capital cares about is its own. The monster Republicans thought they controlled is out of theirs. “It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear.“

I’ve written before that modern corporate capitalism is like the clever inventions at the heart of both the many science fiction films of the 1950s and Mary Shelley’s older classic. Dr. Ian Malcolm (Jeff Goldblum) summarized their common plots in The Lost World: Jurassic Park.

Dr. Ian Malcolm : Oh, yeah. Oooh, ahhh, that’s how it always starts. Then later there’s running and um, screaming.

Some of us took the lesson to heart. Conservatives in relentless pursuit of private and personal gain are the ones now doing the screaming. From Galaxy Quest (1999):

Guy Fleegman : Did you guys ever WATCH the show?

The 11th Circuit sends the Special Master home

Apparently, the U.S. Court of Appeals hasn’t completely lost its mind (yet)

A federal appeals court on Thursday removed a major obstacle to the Justice Department’s investigation into former President Donald J. Trump’s handling of sensitive government documents by ending an outside review of the records.

In a strongly worded ruling, the three-member panel of the U.S. Court of Appeals for the 11th Circuit shut down an independent review of thousands of documents seized this summer from Mr. Trump’s private club and residence in Florida. That move allowed the government to pursue its inquiry into whether Mr. Trump illegally kept national security records at his Mar-a-Lago home and obstructed the government’s repeated efforts to retrieve them.

The unanimous but unsigned 21-page ruling was sharply critical of Judge Aileen M. Cannon’s decision in September to intervene in the case, saying she never had jurisdiction to do so.

“The law is clear,” the appeals court wrote. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”

For more than two months, the review had hindered the criminal inquiry into Mr. Trump’s handling of more than 11,000 documents and photographs — some of them highly classified — that were hauled away from Mar-a-Lago by the F.B.I. in August.

The new Special Prosecutor will now have access to all the documents as should have happened from the beginning. And, by the way, the 3 judge panel was all Republicans, two of whom were appointed by Trump himself.

In the ruling, the appeals court went through all four factors that go into determinations over whether Judge Cannon had jurisdiction and said the circumstances of the case did not meet any of them. In particular, it noted that Judge Cannon herself agreed that the government had not shown “callous disregard” for Mr. Trump’s rights; under the law, the appeals court judges said, that factor was indispensable and so her finding should have ended the matter.

The ruling was an embarrassing development for Judge Cannon, a young jurist. She had not yet served two years on the bench when, in September, she shocked legal experts — and the government — by temporarily barring the Justice Department from using any of the seized materials in its investigation of Mr. Trump and installing an independent arbiter, known as a special master, to review them.

Judge Cannon’s appointment of the special master, Judge Raymond J. Dearie, was especially unusual because she gave him the power to sift through the documents not only for those protected by attorney-client privilege, which is fairly common, but also for those covered by executive privilege, an unprecedented move in a criminal investigation.

Shortly after Judge Cannon’s initial order came down, prosecutors asked the 11th Circuit, based in Atlanta, to reverse it and restore their ability to examine some of the most sensitive documents: a batch of about 100 that were marked as classified. The prosecutors said they needed quick and unfettered access to the classified materials to fully understand the potential hazards Mr. Trump had caused by keeping them at Mar-a-Lago.

Within a week, the appeals court ruled in favor of the government, excluding the classified files from the special master’s review and restoring investigators’ access to them. In their decision, the appellate panel — which included the same two Trump-appointed judges who issued the ruling on Thursday — indicated that Judge Cannon had committed a basic error and should not have gotten involved in the case at all.

Mr. Trump appealed this early ruling to the Supreme Court, which declined to block it in a terse order with no dissents. Not long after, the Justice Department returned to the 11th Circuit yet again and this time asked the court to shut down the special master’s review altogether.

The ruling on Thursday did precisely that, cutting short Judge Dearie’s work before he completed his review of the materials. During his brief tenure as a special master, Judge Dearie, a longtime fixture on the federal bench in Brooklyn, expressed skepticism about claims by Mr. Trump’s lawyers that the documents he was examining were in fact privileged and thus could be withheld from the Justice Department’s investigation.

That ridiculous set of delays is over. Where it goes now, we’ll have to see but it’s hard to see how they can justify just letting him get away with this.

Sadly, it wouldn’t be the first time the Democrats reach for it …

Greg Sargent observes that the Dems may be making a tragic mistake in not prioritizing the Electoral Count Act right now:

At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.

But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denialis very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.

Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.

“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”

Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”

“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and thereform under considerationwould close off those pathways to a future stolen election.

Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much elseleft to do,including funding the entire government.

So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to thatend-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.

The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even ifECA reform were to geta stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.

What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.

The flip side of that, however, is that Democrats are still relying on GOP Senate leaders to agree to attach ECA reform to a spending bill, and on 10 GOP senators to support it — which seems less than reassuring.

The Arizona shenanigans show why. With Lake contesting her loss, the election board in GOP-controlled Cochise County is simply refusing to certify the results. As a New York Times account reveals, this is entirely baseless, and the rationale is laughable: One official admits it’s because small counties are “sick and tired of getting kicked around and not being respected.”

What this really shows is that election denialism has been reduced to the idea that when Democrats win elections, it doesn’t count. Although this is absurd and unlikely to work this time, it still shows the need for ECA reform.

That’s because in a future presidential election, a GOP-controlled state legislature could seize on exactly this kind of thing — a localrefusal to certify results — as its excuse to appoint electors for the losing presidential candidate. If the GOP-controlled House counted those electors next time, under current lawit could lead to a stolen election or major crisis.

“An unscrupulous state legislature would be looking for a fig leaf to appoint an alternative slate of electors,” Hasen tells me. Among other things, he said, “that could come from a county refusing to certify.” Separately, Seligman notes that a GOP governor running for president — say, Ron DeSantis of Florida — could certify the wrong electors for, well, himself.

ECA reform wouldrequiregovernors to certify the correct slate of electors, create new avenues for legal challenges when governors violate that duty, and require Congress to count the court-sanctioned slate of electors even if a bad-acting state legislature appointed a sham slate of them.

On other fronts, ECA reform would clarify the vice president’s role in counting electors as ceremonial, and make it harder for Congress to invalidate legitimate electors, among other fixes.

The defeat of prominent election deniers has mitigated the threat in 2024 to some degree. But it isn’t remotely neutralized. And we should look beyond 2024. The fact that an election denier such as Lake fell a mere 17,000 votes short of becoming governor of Arizona — which would have positioned her well to steal a future election — is not cause for complacency. Both the impulse and the means remain alive.

That should be cause for action. Trump’s brazen effort to overturn U.S. democracy has created fleeting and unusual bipartisan urgency for reform. It would be the height of folly to let that slip away.

This is ridiculous. They have slow walked voting rights the entire congress. It’s as self-destructive an act as I can imagine.

Sigh…

52-43: The Senate fails to pass the House's measure to provide rail workers 7 days of paid sick leave. 60 votes were needed to break the filibuster.

Sen. Joe Manchin (WV) was the only Democrat to vote against the measure. pic.twitter.com/Yfyywn53Lt

— The Recount (@therecount) December 1, 2022

That would be Joe Manchin, the populist defender of the working man…

I guess this is why he wants to preserve the filibuster.

A former girlfriend speaks out

He is violent and mentally unstable:

A former longtime girlfriend of Republican senatorial candidate Herschel Walker has come forward to detail a violent episode with the football star, who she believes is “unstable” and has “little to no control” over his mental state when he is not in treatment.

The woman, Dallas resident Cheryl Parsa, described an intimate and tumultuous five-year relationship with Walker in the 2000s, beginning shortly after his divorce and continuing for a year after the publication of his 2008 memoir about his struggle with dissociative identity disorder (DID), once known as multiple personality disorder.

Parsa, who has composed a book-length manuscript about her relationship with Walker, says she is speaking out because she is disturbed by Walker’s behavior on the campaign trail, which she claims exhibits telltale flare-ups of the disorder she tried to help him manage for half a decade.

“He’s a pathological liar. Absolutely. But it’s more than that,” Parsa, who last had regular contact with Walker in 2019, told The Daily Beast. “He knows how to manipulate his disease, in order to manipulate people, while at times being simultaneously completely out of control.” She said that when she was with Walker, he used his diagnosis as an “alibi” to “justify lying, cheating, and ultimately destroying families.”

Parsa provided a detailed account of a 2005 incident that turned violent after she caught Walker with another woman at his Dallas condo. She said Walker grew enraged, put his hands on her chest and neck, and swung his fist at her. “I thought he was going to beat me,” she recalled, and fled in fear.

Parsa is one of five women who were romantically involved with Walker who spoke to The Daily Beast for this article. All of them described a habit of lying and infidelity—including one woman who claimed she had an affair with Walker while he was married in the 1990s. All five women said they were willing to speak to expose the behavior of the man they now see running for Senate.

The Daily Beast sent a Walker campaign spokesperson detailed questions for this article. The spokesperson declined to comment.

This is the first time in the campaign that a woman has gone on the record with accusations against Walker. His candidacy, however, has been dogged by other allegations of domestic violence, specifically from a 2008 interview with his ex-wife that resurfaced ahead of his announcement last August.

[…]

“He is not well,” Parsa said. “And I say that as someone who knows exactly what this looks like, because I have lived through it and seen what it does to him and to other people. He cannot be a senator. He cannot have control over a state when he has little to no control of his mind.”

Come on, Georgia. Please don’t do this. Senator Warnock is a wonderful leader and representative of your state. Walker is clearly unfit. How can this even be close?

A little Nazi gabfest

KANYE WEST PRAISED Adolf Hitler during a Thursday interview with conspiracy theorist Alex Jones. 

“Every human being has something of value that they brought to the table, especially Hitler,” Ye said. “Also Hitler was born Christian.”

Watch for yourself. In the same breath, Kanye West praises Hitler and attacks Jews. pic.twitter.com/HXhdPBNrTd

— Ahmed Baba (@AhmedBaba_) December 1, 2022

“I see good things about Hitler also” Ye said. “I love everyone. Jewish people are not going to tell me you can love us, and you can love what we’re doing to you with the contracts, and you can love what we’re pushing with the pornography. But this guy that invented highways, invented the very microphone that I use as a musician, you can’t say out loud that this person ever did anything good, and I’m done with that.”

Kanye West says he “likes Hitler” pic.twitter.com/ECnFxYnYdO

— Van “#1 Voice in Wrestling Media” Lathan Jr (@VanLathan) December 1, 2022

When Jones said he didn’t like Nazis” as the show moved to a commercial break, Ye interjected. “I like Hitler,” he said.

“We got to stop dissing the Nazis all the time,” Ye said after the show returned from break.

Throughout the show, Ye blamed several subjects mentioned in the broadcast, including suppression of free speech, on “zionists.” 

“You’ve got a little bit of a Hitler fetish going on,” said Jones, who seemed uncomfortable by the intensity of Ye’s antisemitism. “I’m not on the whole Jew thing,” Jones stated later in the stream.

This tweeter has it right:

kanye west has lost his fucking mind.

KANYE: “There are Jewish people basically hiding me under their floorboards right now. It’s like a reverse version of the Holocaust.”

Originally tweeted by Marisa Kabas (@MarisaKabas) on December 1, 2022.

Supreme Court gets another shot at weakening other rights

Here is how the League of Women Voters assessed the slippery slope greased by the Dobbs decision to overturn Roe v. Wade after half a century:

Justice Alito maintained that, contrary to the fears of many civil rights advocates, this decision had no bearing on other unenumerated rights (rights not specifically spelled out in the Constitution but nevertheless recognized as fundamental) such as marriage equality, same-sex intimacy, and contraception access. However, Justice Thomas undermined this assertion by penning a concurrence calling for a new look at the decisions protecting all the above rights, and more.  

Congress just passed The Respect for Marriage Act to codify rights Justice Thomas threatened not so obliquely in his concurrence. But whether Alito’s opinion can be trusted will be tested in a case the U.S. Supreme Court hears next week.

The American Prospect explains:

In 303 Creative v. Elenis, slated for oral arguments next week, the Court has a chance to redeem its word by protecting LGBTQ equality again. If bets are right, however, and the case yields new First Amendment free-speech exemptions to Colorado’s public accommodations law, the Court will squander the chance.

By appearances, 303 Creative doesn’t involve LGBTQ constitutional rights. Technically, the case centers around claims by a religious conservative graphic artist and website designer to First Amendment speech protections against Colorado’s public accommodations law. This law includes a ban on public-facing businesses discriminating against would-be customers based on their sexual orientation. Many people fear a ruling vindicating these free-speech claims will precipitate constitutional cutbacks to other measures outlawing anti-LGBTQ discrimination, and even to civil rights protections prohibiting discrimination based on categories like race, ethnicity, and sex.

The court set aside First Amendment arguments in the 2018 Masterpiece Cakeshop case.

“Whatever the craft, skill, or artistry in creating a custom wedding cake, selling those cakes to marrying couples who were equals in the law’s eyes was like Freud’s cigar: The sales were just sales—economic transactions or business trades—that happen to involve custom wedding cake-making, nothing else or more,” is how Marc Spindelman interprets the court’s majority opinion in which Thomas sympathized with the cake-maker’s free-speech argument.

But things could change in the case of Lorie Smith, a Colorado religious graphic artist and website designer.

Clarifying Kennedy’s opinion’s logics, the Thomas concurrence tipped its own hand. Its affinities for the cake-maker’s free-speech rights traveled with skepticism about Obergefell, which surfaced at one point as the concurrence described same-sex weddings as “weddings,” as though unreal. Thomas has repeatedly questioned Obergefell since. His Dobbs concurrence openly called for its—and other LGBTQ constitutional rights’—repudiation.

Thomas, then, may favor a First Amendment ruling crediting Smith’s claims in 303 Creative, which would speed Obergefell’s demise from another direction. It’s easy to imagine a Thomas opinion promising “individuals the [First Amendment free-speech] right to disagree about Obergefell and the morality of same-sex marriage” that suggests those same individuals should be allowed to translate that disagreement into policy action restoring marriage’s traditional definition. Obergefell’s elimination is key to that achievement.

Watch that space.

The Biden team dosen’t think so

People pay hard-earned money to attend sideshows. Moviegoers paid money last year to see Bradley Cooper wind up a carnival geek hired to bite the heads off live chickens. (No chickens were harmed in the filming of Nightmare Alley.)

The Biden team once was reluctant to draw any more attention to America’s Most Radical “bit players” across the aisle. But with the GOP taking control of the House in January, Politico reports the White House thinks it is time to throw a spotlight on the rising stars of the Republican freak show. Among them, Rep. Marjorie Taylor Greene (R-Ga.).

“We could not sit by and fail to challenge that, because their party was negligent,” an unnamed “Biden ally” tells Politico. “He talked with historians and advisers about it. Pretending these threats didn’t exist would only help them grow.”

The Republicans’ narrow midterms win in the House has put prominent conservatives atop major committees poised to launch an onslaught of GOP-led investigations into the administration. The third presidential candidacy of Donald Trump has also provided the White House with fodder to warn about MAGA Republican figures taking on positions of prominence. And with Twitter’s new owner, Elon Musk, allowing both Greene and Trump back on the platform, that microphone will only continue to get louder, though the former president has signaled he is sticking to his own social media site, Truth Social.

That stance has been especially true after Trump’s dinner with the rapper Ye, formally known as Kanye West, and white nationalist Nick Fuentes.

The White House may (if Politico is to be believed) make Greene, Matt Gaetz (R-Fla.), Lauren Boebert (R-Colo.), and other extremists back in positions of power the face of the GOP.

“As President Biden has said about ultra MAGA officials’ dangerous conspiracy theories, gaslighting, and violent rhetoric, we need to ‘be honest with each other and with ourselves’ that ‘too much of what’s happening in our country today is not normal.’ And ‘we, the people, must say this is not who we are,’” said White House deputy press secretary Andrew Bates in a statement.

There are still better angels in America. These are not them (below).

Everyone agrees Nick Fuentes should not be having dinner with Trump. He should have a show on Fox News pic.twitter.com/5ccUgGswk8

— The Daily Show (@TheDailyShow) November 29, 2022

You think they’re kidding? Biden’s Independence Hall speech was a big clue that he does not think so. With Republicans’ narrow House majority in January, Biden will have a needle to thread in 2023 and 2024. He has signaled his belief that he can work across the aisle with the saner of the bunch. As for the MAGA faction whose clout will grow next year, if Biden can “cut ’em out” (as Frankie Laine put it) for branding as extremists, by weakening their influence he may be doing both Rep. Kevin McCarthy (R-Calif.) and himself a favor.

“When the president first started using the term ‘MAGA Republican’ back in May, a lot of pundits, a lot of people thought it wouldn’t work,” White House senior adviser Anita Dunn said recently on Meet the Press. “But it was a very effective strategy for raising for the American people the hazards of going down that path with democracy denial, with the threats of political violence to achieve political ends.”

It is left to Democrats to evoke the country’s better angels in defense against its darker impulses. I recently read a March 1965 speech by President Lyndon Johnson in defense of “the dignity of man and the destiny of democracy.” LBJ had set himself the task of enacting the Voting Rights Act. Passed with Republican help, decades later the law is under assault by Republicans:

This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American heart, North and South: “All men are created equal”—”government by consent of the governed”—”give me liberty or give me death.” Well, those are not just clever words, or those are not just empty theories. In their name Americans have fought and died for two centuries, and tonight around the world they stand there as guardians of our liberty, risking their lives.

Those words are a promise to every citizen that he shall share in the dignity of man. This dignity cannot be found in a man’s possessions; it cannot be found in his power, or in his position. It really rests on his right to be treated as a man equal in opportunity to all others. It says that he shall share in freedom, he shall choose his leaders, educate his children, and provide for his family according to his ability and his merits as a human being.

Don’t count on hearing anything resembling that from the GOP anytime soon.