Public Policy and Governance – Page 61

Chutzpah

The Yiddish word “chutzpah” is one of many Yddish words that really doesn’t have an English equivalent. It’s generally defined as extreme gall. A favorite explanation is “chutzpah is when a defendant who has killed his mother and father throws himself on the mercy of the court because he’s an orphan.”

And chutzpah was what came to mind when I read this article in the Washington Post about an organization founded by Stephen Miller, the loathsome little snake who encouraged Trump’s bigotries during the Orange One’s administration. Miller, as you may remember, was the architect of Trump’s family separation policy–a factoid that tells you pretty much everything you need to know about him.

Miller has founded and leads something called “American First Legal” a “public service law firm” devoted to the preservation of White Supremacy. As the lede explains:

The deal in early 2021 was hailed by advocates for Black farmers as the most significant piece of legislation since the Civil Rights Act of 1964 — about $4 billion in President Biden’s massive pandemic stimulus package to rectify decades of discrimination. Minority farmers began investing in new machinery and other improvements, anticipating tens of thousands of dollars in government aid.

But today, the landmark deal on behalf of historically disadvantaged farmers is dead — successfully challenged in court by a fledgling conservative organization that argued the program racially discriminated against White farmers.

The organization describes itself as “the long-awaited answer to the ACLU” and it has embraced the racial grievance at the heart of Trump’s MAGA movement. The Post reports that it has filed dozens of federal lawsuits” opposing efforts to remedy racial disparities, support LGBTQ students and expand the pool of early voters.”

In other words, it is challenging the efforts of so-called “woke” Americans to level the playing field for previously marginalized people.

AFL-backed suits helped doom a $29 billion program that prioritized struggling female and minority-owned restaurants last year, and last week, a council created by the Department of Education that conservative parents groups viewed as partisan. AFL has won in part by consistently filing lawsuits in a conservative-friendly judicial district in Texas and taking advantage of a larger federal court system revamped by Trump’s predominantly conservative nominees.

Forum shopping has been a standard ploy of Rightwing groups worried that dispassionate judges who respect the rule of law will be less amenable to their claims– basically, claims that merely recognizing the claims of marginalized folks is discrimination against White people.

Many of these lawsuits are centered on making sure that White people remain in control and continue to benefit from unearned privileges, and on maintaining the systemic discriminatory policies that have harmed Black people and other people of color for generations,” said David Hinojosa, an attorney with the Lawyers’ Committee for Civil Rights Under Law. “To argue that White men are being pushed to the back of the line is unfounded and ridiculous. What they’re being asked to do is share a place in line with other people who do not look like them.”

The article quotes Miller saying that what he calls “the equity agenda” represents one of the “single greatest threats to the survival of our constitutional system.”

Unsurprisingly, AFL’s board is all White and all male. All are Trump loyalists (Mark Meadows is one), and they all attended Trump’s 2024 campaign announcement. Miller helped write the speech.

AFL was also involved in the midterm elections, paying for a multimillion dollar ad campaign the Post described as “inflammatory”–with radio and TV spots demanding an end to “anti-white bigotry” and accusing the White House, businesses and universities of discriminating against White people.

Miller repeatedly complained during the campaign that Republican candidates were not talking enough about culture war issues and immigration and focusing too heavily on an economic message, people who spoke to him said. America “is the apex of achievement of Western civilization,” Miller said, with “a heritage to be jealously guarded.”

Miller’s organization has received significant contributions from the “usual suspects”–Rightwing bigots have deep pockets– allowing it to file at least four dozen lawsuits.

Miller is a Jewish version of Kanye West–aka “Ye”–who (among multiple other things) donned a “White Lives Matter” shirt to communicate his need to be accepted by those in power. Miller’s affinity for the MAGA movement reminds us that there were Jews who collaborated with the Nazis to save their skins–not many, but some.

In a letter about Miller’s anti-immigration stance, his uncle wrote that he’d watched with “dismay and increasing horror” as his nephew had become “the architect of immigration policies that repudiate the very foundation of our family’s life in this country.”

Miller brings to mind another apt Yiddish word: a shanda. It’s Yiddish for a disgrace, a shame, and a terrible embarrassment.

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Money Over Sanity

Before the presidency of Donald Trump and the rise of the MAGA/QAnon crazies, I would sometimes need to search for a good example of bad public policy to discuss in my classes. Indiana supplied many of those, but if even the Hoosier state lacked an appropriate case of WTF, I could always depend on Texas.

An article from the New York Times I read a while back suggests that it isn’t only the Texas governor and legislature, or Texas’ outsized influence on textbook selection. The state evidently supplies all manner of nefarious actors seeking to shape federal policies in ways favorable to their bottom lines. The organization profiled by the Times operates beneath the radar, in a far too successful effort to protect fossil fuel companies from those silly laws intended to save the planet.

The Texas Public Policy Foundation is an Austin-based nonprofit organization backed by–and serving the interests of– “oil and gas companies and Republican donors.

With influence campaigns, legal action and model legislation, the group is promoting fossil fuels and trying to stall the American economy’s transition toward renewable energy. It is upfront about its opposition to Vineyard Wind and other renewable energy projects, making no apologies for its advocacy work.

Even after Democrats in Congress passed the biggest climate law in United States history this summer, the organization is undaunted, and its continued efforts highlight the myriad forces working to keep oil, gas and coal companies in business.

In Arizona, the Texas Public Policy Foundation campaigned to keep open one of the biggest coal-fired power plants in the West. In Colorado, it called for looser restrictions on hydraulic fracturing, or fracking. And in Texas, the group crafted the first so-called “energy boycott” law to punish financial institutions that want to scale back their investments in fossil fuel projects, legislation adopted by four other states.

The article also notes that the organization spreads misinformation about climate science, producing YouTube videos, sponsoring pundits to appear on Fox and Friends, and social media campaigns. The message–aimed at lawmakers and the public–is that a transition away from oil, gas and coal would harm Americans.

They have frequently seized on current events to promote dubious narratives, pinning high gasoline prices on President Biden’s climate policies (economists say that’s not the driver) or claiming the 2021 winter blackout in Texas was the result of unreliable wind energy (it wasn’t).

Foundation personnel travel widely in order to encourage lawmakers in various state to punish companies trying to reduce their carbon emissions. It sponsors an initiative called Life:Powered, that makes what the organization calls “the moral case for fossil fuels.” The basic argument–which doesn’t seem all that moral–is that “American prosperity is rooted in an economy based on oil, gas and coal.

The article quoted the chief executive of an Austin-based trade group for renewable energy companies, who pointed out that the Foundation, whose members spent decades advocating for offshore oil drilling, oppose offshore windfarms. It opposes subsidies for renewables. (Last time I looked, the government continues to subsidize fossil fuel industries to the tune of 20 billion dollars annually.)

They’re for looser restrictions on fracking and drilling, but greater restrictions for solar and wind. This organization exists to defend fossil fuels from any threat to their market share.”

On Thanksgiving, Jason Isaac, an executive at the group, tweeted “Today, I’m thankful to live a high-carbon lifestyle and wish the rest of the world could too. Energy poverty = poverty. #decarbonization is dangerous and deadly.”

The article goes on to describe the various ways the amply-funded Foundation influences policy and protects the financial interests of fossil fuel industries.It’s a textbook example of the way monied interests drive American policy.

There are several issues here, the most obvious of which is how these people can sleep at night. An overwhelming scientific consensus warns that continued reliance on fossil fuels threatens the Earth. Perhaps they don’t care about other people, but presumably many of them have children and grandchildren…

Less obvious, perhaps, but equally confounding ,is the ability of this organization and others like it–organizations that are pursing equally dangerous and/or dishonest goals (ALEC comes to mind, but there are hundreds, if not thousands, of others)– to wield dramatically disproportionate influence in America’s legislative bodies.

Ordinary citizens lack the resources to hire lobbyists, make significant campaign contributions and otherwise mount effective responses to these organizations. Worse still, the stealthy ways in which these organizations influence policy keeps most of us ordinary citizens from recognizing their existence or understanding what they are doing and how they are doing it.

It’s fashionable these days to attack capitalism, but America no longer has a genuinely capitalist economic system; it has corporatism— control of government by large interest groups.

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Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices.

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith.

They presume that the words of the Constitution possess essentially one “original” meaning. And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement.

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks.

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

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Our Freudian Politics

Warning: this post contains a number of sexual references, so if you find discussions of genital endowments inappropriate, you should probably skip this one.

Why am I addressing sexuality in a blog devoted to policy and politics? Because I have reluctantly come to the conclusion that a great number of America’s dysfunctions can be traced to misogyny–and that a great deal of that misogyny is the result of men’s concerns over the adequacy of their endowments–concerns that explain a number of, shall we say, “odd” fixations.

Some of those fixations are pretty well known: the racist obsession during slavery and Jim Crow with Black men’s “endowments” (and fears that Southern women might enjoy being “ravished”) , and the more recent “Incel” phenomenon, where men who can’t find women willing to have sex with them (gee, I wonder why? they sound so nice…) express their grievances by attacking women. And of course, there are those “tough” men who carry their guns to the local Kroger (compensate much?).

But there are less recognized aspects of this particular obsession.

Recently, an article in The New Republic considered some of the weirder aspects of the Right’s fixation with Hunter Biden and his laptop. The article was prompted by Elon Musk’s equally weird “expose” of Twitter’s earlier decision not to indulge the original frenzy around what appeared to most credible journalists as a very sketchy story. (After all, the laptop had been in the possession of Rudy Guliani for a period of time–if there had really been something damaging to Joe Biden, it’s likely we’d have heard about it.)

Despite Musk’s breathless implication that he was about to reveal some nefarious plot to hide wrongdoing, the communications he dredged up and published basically showed a discussion by Twitter’s then content moderators considering whether the story violated their standards. Ho-hum.

But then the article noted the “prurient interest” aspect of the whole matter.

Now: Here’s the psychotic part. As Miller put it: “The offending material that Taibbi revealed was removed by Twitter at the Biden campaign’s request turns out to have been a bunch of links to Hunter Biden in the buff.” And these photos revealed to the world that Hunter has … well, you know … let’s just say that he has been blessed by nature. The New York Post reported over the summer on its actual size. You can go look that up if you wish.

So here, clearly, is still one more thing for the right to hate about Hunter. Don’t laugh. Men don’t talk about it much in polite company, but this is something many men think about to the point of obsession. And isn’t it particularly acute among conservative men, all full of that macho swagger? Isn’t that swagger a form of compensation, like that bright orange Dodge Charger the 61-year-old balding man suddenly decides he can’t live without? And isn’t Donald Trump, who still smarts 30 years later from being dubbed “short-fingered” by Spy, the most insecure of all men along these lines? You surely don’t forget the time he actually made his penis a campaign issue in 2016. It’s not the kind of thing you can unremember.

OK, I’ll admit that I can’t look deep into the psyches of all these right-wing men and so I should not overgeneralize about them. I am not asserting that James Comer, the incoming chairman of the House Oversight Committee who has vowed to make the 118th Congress entirely about Hunter Biden, is thinking about how the first son holsters his Dillinger as he contemplates how he’s going to cut him down to—as it were—size. But I am saying, absolutely, that there is something strange and psychological about the Hunter obsession.

Perhaps it comes down to simply this: It’s all they have, and that makes them insane. Joe Biden has been in public life for half a century and has never been attached to a whiff of financial scandal. It makes the right, especially the Trumpy right, nuts. In Trumpworld, everyone is corrupt; that’s a given. Only schmucks aren’t out to cut corners and game the system. The only difference is between those smart enough to get away with it and those dumb enough to get caught.

Democrats have responded to the GOP’s threat to make the next two years all about Hunter Biden–who has never been part of government– by pointing to the multiple grifts of the Trump offspring, who made out like bandits while occupying high government positions for which they were manifestly unfit. True enough–and certainly more appropriate material for public discussion.

But have you looked lately at squirrelly Jim Jordan, and some of the other Republicans engaged in this particular vendetta?

Just asking…

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Fetterman Hits The Ground Running!

Those of us hoping that John Fetterman would win Pennsylvania’s Senate race and defeat the oleaginous “Dr. Oz” should be very pleased with the initial steps Fetterman is taking as he prepares to assume office.

U.S. Senator-elect John Fetterman on Friday announced two key staff hires for his office on Friday, including tapping the author of a book calling for the abolishment of the arcane Senate filibuster to be his next chief of staff.

The Pennsylvania Democrat said in a statement that he has hired Adam Jentleson to oversee his D.C. office as chief of staff and that longtime party operative and labor organizer Joseph Pierce will be his state director.

A veteran of the Senate who served under former Majority Leader Harry Reid of Nevada, Jentleson also wrote the 2021 book, Kill Switch: The Rise of the Modern State and the Crippling of American Democracy, which examines Senate rules that powerful interests have exploited to obstruct progressive legislation with overwhelming majority support among the American public”

Jentleson has been a strong voice for ending the filibuster, which he insists is necessary to protect American democracy. I couldn’t agree more.

Those who haven’t followed the Senate’s inner workings may not realize that the filibuster in its current iteration bears little or no resemblance to the original rule. Whatever original purpose the filibuster may have served, for many years its use was infrequent. For one thing, it required a Senator to actually make a lengthy speech on the Senate floor.. In its current form, it operates to require government by super-majority–it has become a weapon employed by extremists to hold the country hostage.

A bit of history is instructive.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules, making it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation.

This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

There is really no principled argument for maintaining the filibuster in its current form. During the campaign, Fetterman repeatedly promised to support efforts to end the filibuster in the Senate, explaining that abolishing it would allow key legislation to pass on gun control, labor protections, abortion rights, and voting access.

Jettleman has also pushed for Democrats to brand Supreme Court Justice Amy Coney Barrett’s nomination as “illegitimate” in order to pave the way for eventually eliminating the filibuster and adding more seats to the court. In 2020, he had an op-ed in the New York Times a few days after Ruth Bader Ginsburg’s death, in which he argued that– while Democrats did not have the power to block a nomination by then-President Donald Trump–they could and should work to delegitimize it.

I first read about Fetterman when he was the very unorthodox Mayor of Braddock, Pennsylvania, and (while I’ll admit to being somewhat puzzled by his choice of clothing) I was impressed. Here was a person who actually wanted to be mayor, wanted to improve his community, unlike the many politicians who clearly view local office solely as a stepping-stone.

Fetterman is evidently bringing that same sensibility to the Senate. His choices of staff are indications that he will focus on the nuts and bolts of actual governance, rather than following the culture war/negative partisanship of Senators like Indiana’s Mike Braun. (Braun is so uninterested in the nuts and bolts of legislating that he has announced he’ll leave the Senate and run for Governor.)

Fetterman joins other Democrats who seem intent upon actually addressing the problems we face. Getting rid of the filibuster would allow them to do so.

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