Take That, Dim Jim Jordan!

If I ever grow up, I want to be Fani Willis. That woman can cast shade!

I just read the 9 page letter she sent to Congressional buffoon Jim Jordan. Jordan had demanded that the hardworking Georgia prosecutor who indicted Trump and others provide him with all documents relating to the case.

Her response was epic. You can read it in its entirety here.

Vanity Fair is just one of the numerous media sources that reported on that response.Here’s the lede:

In a withering letter, the subtext of which was basically “You’re a f–king idiot and I can’t believe I have to take the time out of my day to deal with you,” Fulton County district attorney Fani Willis blasted House Judiciary chair Jim Jordan and his demand that she turn over all documents related to her case against Donald Trump and the 18 other people she indicted last month. If this letter doesn’t cause Jordan such embarrassment or shame that he leaves town immediately never to return, nothing will!

Nothing will. Although Willis’ takedown should humiliate Jordan, his bizarre histrionics suggest he is impervious to shame.

Willis’ letter addresses Jordan’s constitutional ignorance.

Your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution … There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution. That violation of Georgia’s sovereignty is offensive and will not stand.” Apparently operating from the assumption that the House Judiciary chair knows less about how the US government works than a third grader, she added: “As the Supreme Court has explained, ‘the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’ Congress, in contrast, is barred by precedent from using investigations for ‘law enforcement purposes.’ You have thus violated the basic constitutional rule that ‘the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary’.”

For its part, Politico quoted the part of Willis letter responding to Jordan’s contention that, as a candidate for President, Trump deserved different treatment:

An announcement of a candidacy for elected office, whether President of the United States, Congress, or state or local office, is not and cannot be a bar to criminal investigation or prosecution. Any notion to the contrary is offensive to our democracy and to the fundamental principle that all people are equal before the law.

Snarky parts of the letter that I particularly enjoyed:

Your public statements and your letter itself make clear that you lack any legitimate legislative purpose for that inquiry: your job description as a legislator does not include criminal law enforcement, nor does it include supervising a specific criminal trial because you believe that doing so will promote your partisan political objectives….

Chairman Jordan, I tell people often, “deal with reality or reality will deal with you.” It is time that you deal with some basic realities. A Special Purpose Grand Jury made up of everyday citizens investigated for 10 months and made recommendations to me.

A further reality is that a grand jury of completely different Fulton County citizens found probable cause against the defendants named in the indictment for RICO violations and various other felonies. Face this reality, Chairman Jordan: the select group of defendants who you fret over in my jurisdiction are like every other defendant, entitled to no worse or better treatment than any other American citizen.

Here is another reality you must face: Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia.

I especially loved this:

Your questioning of the inclusion of overt and predicate acts by the defendants in the indictment’s racketeering count shows a total ignorance of Georgia’s racketeering statute and the basics of criminal conspiracy law. Allow me the opportunity to provide a brief tutorial on criminal conspiracy law, Chairman Jordan.

As I explained to the public when announcing the indictment, the overt and predicate acts are included because the grand jury found probable cause that those acts were committed to advance the objectives of a criminal conspiracy to overturn the result of Georgia’s 2020 Presidential Election.

For a more thorough understanding of Georgia’s RICO statute, its application and similar laws in other states, I encourage you to read “RICO State-by-State.” As a non-member of the bar, you can purchase a copy for two hundred forty-nine dollars [$249].

If we had more public officials with Fani Willis’ smarts and spine, MAGA blowhards like Jordan wouldn’t be embarrassing Congress–and America.

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Don’t Help Those People!!

When do efforts to ameliorate past disadvantage turn into unconstitutional discrimination?

It’s a fair enough question; if demographic change gives people of color the power to make the nation’s laws, and they use that power to privilege themselves and disadvantage Whites, that would clearly be wrong. While accusations of “reverse discrimination” tend to be prompted more by racism than actual unfairness, there have been some cases where courts have found such reverse discrimination. 

But let’s get real! Efforts to help people overcome longstanding structural disadvantage aren’t plots against Whites. The current attacks on “woke” corporate efforts to ensure fairness are more often than not barely-veiled efforts to maintain previous, racist barriers.

I was particularly struck by a recent report in the Washington Post.

The article began by recounting an entrepreneurial  bright idea. Patterning her project after those ubiquitous food trucks, a young Black woman in Atlanta bought an old school bus, painted it white, tore out the floor and seats, and added manicure stations. The effort took off, and she was booking weddings and parties.

Looking to scale up, she approached a grant program for Black, female entrepreneurs run by Fearless Fund, an Atlanta-based venture capital firm.

The firm had planned to name the latest round of grant winners before Labor Day. But Fearless Fund has agreed to delay the awards as it finds itself ensnared in the nation’s rapidly expanding legal brawl over affirmative action.

Edward Blum, whose lawsuit prompted the U.S. Supreme Court to strike down the use of racial preferences in college admissions, targeted the Fearless Fund in early August, claiming it engaged in “explicit racial exclusion” by operating a grant program “open only to Black females.” The lawsuit — which asked the court to prevent the fund from selecting its next round of grant winners — is one of the most prominent in a flurry of recent lawsuits and legal claims by conservative activists aimed at applying the Supreme Court’s insistence on race-blind college admissions practices to the corporate sphere of hiring, contracting and investment.

Blum has also sued two law firms over their operation of fellowship programs aimed at students of color, LGBTQ+ students, and students with disabilities, alleging that the exclusion of applicants who don’t fall into those categories is discriminatory, and demanding that the programs be shut down.

It will not surprise you to learn that a Google search to find cases in which Blum challenged programs that preferred White folks was unsuccessful….

Fearless Fund is one of several entities trying to help minority entrepreneurs who have encountered race-based barriers to capital:

Fearless Fund is one of dozens of firms geared toward combating the well-documented racial imbalance in U.S. venture capital: Last year, 1.1 percent of the $214 billion in venture capital funding allocated went to companies with Black founders, according to data from Crunchbase. In 2019, research from Stanford University concluded that founders of color face more bias from professional investors the better they perform.

The women who established Fearless Fund had been personally affected by the wildly disproportionate funding available to Black and White enterprises, and wanted to help other Black women facing the barriers that they’d struggled to overcome. They’ve lined up a heavyweight defense team, including the NAACP Legal Defense Fund, Gibson, Dunn & Crutcher and Ben Crump.

The lawsuit against the Fearless Fund, Crump told The Post, “is an attack by the enemies of equality, to say ‘You will never be equal.’”…

The lawsuit claims that the venture capital firm’s practice of awarding $20,000 grants, business support services and mentorship to Black women-owned businesses violates a section of the Civil Rights Act of 1866 that guarantees “race neutrality” in contracts. That legislation, which was passed after the Civil War to protect the rights of people freed from enslavement, is also being used in similar lawsuits — along with the Civil Rights Act of 1964 — to claim that companies’ attempts to eradicate racial inequality qualify as discrimination.

Unsurprisingly, Blum and his fellow champions of racial neutrality were nowhere to be found–in the courts or in the court of public opinion–when corporate practices blatantly favored Whites, making their current pious pronouncements about favoritism and discrimination ring especially hollow.

Federal laws that were intended to ensure equal opportunity and rights for people of color “are now being used as a weapon to deny them rights,” said Kenneth Davis, professor of law and ethics at Fordham University. “It’s the height of irony.”

That irony is proliferating. In the wake of the Supreme Court decision striking down college affirmative action programs, a federal judge has ruled that an SBA program for historically-disadvantaged groups is unconstitutional.

Maybe next they can attack scholarships for poor students on the grounds that they discriminate against the rich….

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I Was So Wrong…

As I cleanse my email feed every morning , deleting multiple frantic requests for just $2/$5/$20 or whatever, I’m reminded about my original, oh-so-naive belief that small-dollar fundraising would improve governance by removing the influence of big-dollar donors…

Silly me.

I was thrilled when Howard Dean first demonstrated that the internet could be employed to encourage small donations.  When Obama raised enormous sums in small increments, I  thought the days of depending on political fat cats was over–and since no candidate could be “bought” for these small contributions, I counted this as a win for democracy.

Let’s just say it turned out to be a lot more complicated than that.

Small dollar fundraising did indeed reduce political reliance on the “usual suspects”–the big money donors. Unfortunately, however, this approach to fundraising produces different–but equally troubling– negative consequences, and those negatives go far beyond the annoying assaults on our inboxes.

In a recent column for the New York Times, Thomas Edsall consulted the research–and reported on the gloomy conclusions that the research supports.

Increasing the share of campaign pledges from modest donors has long been a goal of campaign-finance reformers, but it turns out that small donors hold far more ideologically extreme views than those of the average voter.

In their 2022 paper, “Small Campaign Donors,” four economists — Laurent Bouton, Julia Cagé, Edgard Dewitte and Vincent Pons — document the striking increase in low-dollar ($200 or less) campaign contributions in recent years. (Very recently, in part because Donald Trump is no longer in the White House and in part because Joe Biden has not been able to raise voter enthusiasm, low-dollar contributions have declined, although they remain a crucial source of cash for candidates.)

Bouton and his colleagues found that the total number of individual donations grew from 5.2 million in 2006 to 195.0 million in 2020. Over the same period, the average size of contributions fell from $292.10 to $59.70.

Edsall also quoted a 2019 article, “Small-Donor-Based Campaign-Finance Reform and Political Polarization.” That article warned about the consequences of increasing dependence on small donations, due to the fact that low-dollar donors tend to be “considerably more ideologically extreme than the average American.”

This is one of the most robust empirical findings in the campaign-finance literature, though it is not widely known. The ideological profile for individual donors is bimodal, with most donors clumped at the “very liberal” or “very conservative” poles and many fewer donors in the center, while the ideological profile of other Americans is not bimodal and features strong centrist representation.

It turns out that rising dependency on small-dollar donors has been one of the major reasons we’ve seen a decline in the strength of political parties–and the inability of party leaders, especially but not exclusively in the GOP, to control their respective crazies.

Political parties have been steadily losing the power to shape the election process to super PACs, independent expenditure organizations and individual donors. This shift has proved, in turn, to be a major factor in driving polarization, as the newly ascendant sources of campaign contributions push politicians to extremes on the left and on the right.

Edsall writes that Citizens United “was a crucial factor in shaping the ideological commitments of elected officials and their challengers.” It ushered in our era of independent expenditures and of dark money, leaching power that used to be exercised by the political parties.

The small donors who contribute to Trump are also those who fund the looney-tunes.

Edsall reports that Marjorie Taylor Greene raised $12,546,634, with 68.32 percent coming from small donors; Matt Gaetz raised $6,384,832, of which 62.24 percent came from small donors; and Jim Jordan raised $13,975,653, of which 58.05 percent came from small donors. On the Democratic side, Bernie Sanders and AOC appealed most to small donors (although I would note that Sanders and AOC are both sane and hard-working legislators–something that  certainly can’t be said about Greene, Gaetz and Jordan.)

Donations of $200 or less made up 69 percent of the individual contributions to Trump’s campaign.

And speaking of Citizens United, in its wake, spending by ideological and single-issue independent expenditure organizations grew from $21.8 million in 2006 to $66 million in 2016. During that same time-period, spending by political parties fell from 24 percent of the total to 16.2 percent, and the influence of dark money grew significantly.

There’s much more in Edsall’s column, and it is definitely worth reading in its entirety. The bottom line is that we now have a system that incentivizes extremism. Social media and the Internet enable lunatics to self-finance; they don’t worry that Fortune 500 companies will stop giving them money, because 30 percent of the population wants insanity and is willing to fund the politicians who give it to them.

I have no clue what we do about this, but a more politically savvy Supreme Court would help….

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Why I Love David French

I make it a point to read anything I come across from David French, whose writing I love because it is both eloquent and thoughtful–and admittedly, for the same reason most of us like writers: he shares my own beliefs and concerns. (Come on–admit it. We all prefer the folks we consider wise because they agree with us.)

In a recent essay for the New York Times, French focused on one of my longstanding and primary obsessions: the American public’s lack of civic literacy, and the consequences of that pervasive lack.

French used what he aptly termed the the “Articulate Ignorance of Vivek Ramaswamy” as his jumping off point, using reactions to Ramaswamy’s glib ignorance as an example of the way “in which poor leadership transforms civic ignorance from a problem into a crisis — a crisis that can have catastrophic effects on the nation and, ultimately, the world.”

French refers to the research that I have often reported on this site:

Civic ignorance is a very old American problem. If you spend five seconds researching what Americans know about their own history and their own government, you’ll uncover an avalanche of troubling research, much of it dating back decades. As Samuel Goldman detailed two years ago, as far back as 1943, 77 percent of Americans knew essentially nothing about the Bill of Rights, and in 1952 only 19 percent could name the three branches of government.

That number rose to a still dispiriting 38 percent in 2011, a year in which almost twice as many Americans knew that Randy Jackson was a judge on “American Idol” as knew that John Roberts was the chief justice of the United States. A 2018 survey found that most Americans couldn’t pass the U.S. Citizenship Test. Among other failings, most respondents couldn’t identify which nations the United States fought in World War II and didn’t know how many justices sat on the Supreme Court.

Unlike my periodic rants on the subject, French isn’t sharing these statistics to bemoan public ignorance. He wants to make a different argument, namely

that the combination of civic ignorance, corrupt leadership and partisan animosity means that the chickens are finally coming home to roost. We’re finally truly feeling the consequences of having a public disconnected from political reality.

Simply put, civic ignorance was a serious but manageable problem, as long as our leader class and key institutions still broadly, if imperfectly, cared about truth and knowledge — and as long as our citizens cared about the opinions of that leader class and those institutions.

French reminded his readers of the time that Gerald Ford’s gaffe about Soviet domination of Eastern Europe made a huge difference in that campaign. As he says:

Note the process: Ford made a mistake, even his own team recognized the mistake and tried to offer a plausible alternative meaning, and then press coverage of the mistake made an impression on the public.

Now let’s fast-forward to the present moment. Instead of offering a plausible explanation for their mistakes — much less apologizing — all too many politicians deny that they’ve made any mistakes at all. They double down. They triple down. They claim that the fact-checking process itself is biased, the press is against them and they are the real truth tellers.

He follows up with several examples of Ramaswamy’s blatantly, factually incorrect (and actually ridiculous– but articulate!) statements–and the reaction of the GOP, which  “deemed him one of the night’s winners.”

He sums it up:

The bottom line is this: When a political class still broadly believes in policing dishonesty, the nation can manage the negative effects of widespread civic ignorance. When the political class corrects itself, the people will tend to follow. But when key members of the political class abandon any pretense of knowledge or truth, a poorly informed public is simply unequipped to hold them to account…

A democracy needs an informed public and a basically honest political class. It can muddle through without one or the other, but when it loses both, the democratic experiment is in peril. A public that knows little except that it despises its opponents will be vulnerable to even the most bizarre conspiracy theories, as we saw after the 2020 election. And when leaders ruthlessly exploit that ignorance and animosity, the Republic can fracture. How long can we endure the consequences of millions of Americans believing the most fantastical lies?

I told you so…..

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The Administrative State

One basic question is at the foundation of political philosophy: what should government do? Or perhaps a different formulation is clearer: what is government for?

People who engage with that question begin with the basics: governments were created to prevent some citizens from harming others. (In that pesky “state of nature,” the strong can take advantage of the weak.) That seemingly simple formulation, it turns out, is not really so simple, because it raises a very thorny question: what’s the nature and extent of harm that government should be empowered to prevent or ameliorate? 

Even harms that most of us consider obvious turn out to be less than simple. Government should certainly enforce laws against murder, for example, but how do we define “murder”? Must it be intentional? What about self-defense? Warfare? 

When we get to other kinds of harm, the arguments mount. Local ordinances against smoking in restaurants and bars are relatively recent reactions to newly recognized harms from passive smoke–and those rules have encountered considerable resistance. What about seat belts? Does a refusal to “buckle up” harm anyone other than the unbuckled person who gets into an accident? Can the government that insists you buckle up also make you eat your vegetables?

When does legitimate authority become the nanny state?

Political philosophers have debated these issues at least since the Enlightenment, and most of us recognize that modern life has made them much more difficult. People living on widely scattered farms where they grow their own food require fewer rules than people who live in cities and depend upon government agencies to ensure the safety of the foods on their grocery shelves.

One of America’s many, many ideological divisions grows out of the debate about government’s role in protecting us from a wide variety of previously non-existent harms: airplanes colliding in mid-air, contaminated foods on those grocery shelves, pollutants discharged into our rivers and streams, internet scams. What is generally called “the administrative state” has grown out of the need for government to monitor and prevent such harms.

Which brings me to the current attacks on that administrative state. As participants in one recent podcast argued,

Since the Reagan administration, conservatives and their allies in the business community have had regulatory agencies in their crosshairs. Institutions like the Occupational Safety and Health Administration, or OSHA; the Environmental Protection Agency, or EPA; and the Food and Drug Administration, or FDA—all aim to protect the health and safety of the citizenry. But the agencies, and the dedicated civil servants who work at them, are seen in some quarters as examples of unnecessary executive authority. Steve Bannon even called “the deconstruction of the administrative state” a main goal of the Trump administration.

The obvious question is: what would the United States look like without the administrative state?  On How to Save a Country, the hosts asked that question of K. Sabeel Rahman. Rahman was associate administrator of the Office of Information and Regulatory Affairs in the Biden administration until earlier this year and  is the co-founder and co-chair of the Law and Political Economy Project, former president of the think tank Demos, and the author of several books on democracy.

The older argument was between progressives who believe that poverty and inequality are harms that government should address through mechanisms like Social Security and Medicare, and the (usually privileged) folks who disagree. 

The podcast focused on how that argument has changed, and why today’s Right is so focused on dismantling the “administrative state.” What do they really mean when they say “drain the swamp?”‘Rahman addressed that question.

Our new dangers always have their seeds in the old, but I do think there’s something different and maybe especially dangerous about the moment we’re in now. There’s absolutely a good faith understandable set of debates that we have been having forever and we’ll continue to have about the appropriate reach and scope of government from liberal versus libertarian standpoints. And that’s fine. What I think is not fine is the legal guerrilla warfare that I think we’re starting to see … I don’t think it’s just libertarianism of the familiar kind. This is really a white supremacist ideology wearing a different set of clothes. It’s about dismantling the parts of government that are trying to create a more inclusive, egalitarian society and leaving unchecked and unshackled the parts of government that terrorize communities of color. The Bannonites are not at all troubled by ICE and CBP and the way the Trump administration treated migrants at the border. 

There is much more in the podcast–much of it about the fact that the complexity of modern harms and the acknowledged deficits in administrative processes require officials with expertise.

It’s worth a listen.

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