The horizon is not so far as we can see, but as far as we can imagine

Week-end Wrap – Political Economy – August 20, 2023

by Tony Wikrent

Climate and environmental crises

‘This Is Huge’: Judge Sides With Montana Youths in Historic Climate Ruling 

[Common Dreams, via Naked Capitalism 8-15-2023]

Climate Jurisprudence Gets a New Blueprint 

Gabrielle Gurley, August 17, 2023 [The American Prospect]

A Montana judge delivers a stunning, historic decision on the Mountain West state’s culpability for surging climate dangers that hit young people hard.

Montana Climate Lawsuit: Youths Win Landmark Case 

[Rolling Stone, via Naked Capitalism 8-15-2023]

Biden DOJ: “No Constitutional Right To A Stable Climate”

David Sirota, August 16, 2023 [The Lever]

As a heatwave scorched America with record-breaking temperatures this June, the Biden administration attempted to block a landmark climate lawsuit by declaring that “there is no constitutional right to a stable climate system,” according to court records reviewed by The Lever.

The assertion in Juliana v. United States — which echoed both the Trump and Obama administrations’ legal claims in the same long-running case — was part of the Justice Department’s latest attempt to halt the suit brought by children who assert that the Constitution requires the federal government to maintain a climate that supports human life.

That suit’s momentum could be bolstered by a separate legal victory in Montana this week, but neither the victory nor the intensifying climate disaster appear to have stopped the Biden administration’s crusade to kill the federal case. Indeed, Biden’s Justice Department filed its most recent motion to dismiss the case in the same week that large swaths of the country were under extreme heat warnings.

That filing came as President Joe Biden has refused repeated calls to declare a climate emergency, and as his administration backed a court case designed to accelerate the construction of a massive fossil gas pipeline, despite scientists’ climate warnings. Biden’s administration has also declared that the Intergovernmental Panel on Climate Change’s scientific report about climate change “does not present sufficient cause” to halt a massive expansion of fossil fuel drilling.

The world’s infrastructure was built for a climate no longer existing

Bill Haskell [Angry Bear, via Mike Norman Economics, August 15, 2023]


Global power shift

[Twitter-X, via Naked Capitalism 8-15-2023]



China becomes world’s No.1 maritime fleet owner due to ‘strong manufacturing, resilient trade and financial support’

[Global Times (Chinese state-sponsored media), via Mike Norman Economics, August 13, 2023]

China has overtaken Greece as the world’s largest maritime fleet owner in terms of gross tonnage (GT), global shipping information provider Clarksons Research said on Saturday.

Greece held that position for a decade, but China’s position as the world’s manufacturing hub, its resilient cargo trade and strong financial support for the shipping sector propelled it to the head of the industry, analysts said.

The latest rankings from Clarksons Research showed that the Chinese-owned fleet stands at 249.2 million GT. Greece was second with 249 million GT and Japan third with 181 million GT.

Regulatory squeeze to kill a third of China’s hedge funds 

[Asia Times, via Naked Capitalism 8-15-2023]

[TW: So China gains another strategic advantage over USA/ But, why only a third? ]

The State of Russia’s Wartime Economy

[Apricitas Economics, via The Big Picture 8-16-2023]

The Agribusiness Pact: The “reprimarization” of the Brazilian  economy

[Phenomenal World, via The Big Picture 8-14-2023]

This phenomenon has evolved into a consensus state policy program spanning two decades, bearing significant socioeconomic and environmental repercussions. The swift financialization of agriculture has transformed tangible assets, such as commodities and land, into targets for speculative investment.


The epidemic

[Twitter-X, via Naked Capitalism Water Cooler 8-15-2023]


The Hidden Fee Costing Doctors Millions Every Year 

Cezary Podkul, August 14, 2023 [, via Rick S.]

In August 2017, a federal agency with sweeping powers over the health care industry posted a notice informing insurance companies that they weren’t allowed to charge physicians a fee when the companies paid the doctors for their work. Six months later, that statement disappeared without explanation.

The vanishing notice was the result of a behind-the-scenes campaign by the insurance industry and its middlemen that has largely escaped public notice — but that has had massive financial consequences that have rippled through the health care universe. The insurers’ invisible victory has tightened the financial vise on doctors and hospitals, nurtured a thriving industry of middlemen and allowed health insurers to do something no other industry does: Take one last cut even as it pays its bills.

Insurers now routinely require doctors to kick back as much as 5% if they want to be paid electronically. Even when physicians ask to be paid by check, doctors say, insurers often resume the electronic payments — and the fees — against their wishes. Despite protests from doctors and hospitals, the insurers and their middlemen refuse to back down….

Almost 60% of medical practices said they were compelled to pay fees for electronic payment at least some of the time, according to a 2021 survey. And the frequency has increased since then, according to medical clinics. With more than $2 trillion in medical claims being paid electronically each year, these fees likely add up to billions of dollars annually.

Health Care’s Intertwined Colossus

Krista Brown, Sara Sirota, August 2, 2023 [The American Prospect, via Rick S.]

How decades of policy failures led to the ever-powerful UnitedHealth Group….

Today, United is the fifth-largest public company in the U.S., bigger than JPMorgan Chase. Its insurance products serve 50 million members, more than the population of Spain, and its $186 billion health services division, Optum, has 103 million patients, more than Vietnam’s population. Earnings came to $28.4 billion last year, putting it in the top 30 of companies worldwide.

We think of United as an insurance company, but it has never really been exactly that. It began as a health management company, and it is now also the largest employer of physicians in the country, with 70,000 doctors across 2,200 locations. Underneath its corporate umbrella are pharmacies, primary care clinics, surgical centers, urgent care centers, home health agencies, hospice agencies, mental health agencies, a pharmacy benefit manager, an IT division, and plenty more. United has so many subsidiaries that 25 percent of its total revenues come from itself.

United even has a bank. Optum Bank is a way for consumers to manage health savings accounts, but the company’s latest financial service is a payday loan system called Optum Pay Advance for independent physician practices. While they wait for reimbursement from United for their claims but have to make payroll, doctors can get money from United to tide them over … with 35 percent interest. The other option is to succumb to the pressure and sell out to United, giving it an even greater margin.

The Great American Hospital Shell Game

Maureen Tkacik, August 2, 2023 [The American Prospect, via Rick S.]

MPT acquired most of its $20 billion portfolio of health care assets from transactions with private equity firms at very high valuations. While MPT says these deals were based on meticulous underwriting, in many cases, they left hospitals with rent obligations they couldn’t afford to pay. Several MPT hospitals have since been plagued by outdated equipment and substandard quality of care levels. Last week, about a dozen MPT hospitals in four states were temporarily shut down due to an apparent ransomware attack. As of Tuesday, some hospitals were still diverting ambulances and conducting all business by paper and phone, while administrators continued to grapple with the security breach.

MPT’s single biggest tenant, representing about a quarter of its assets, is Steward Health, a struggling community hospital chain into which the REIT has plowed more than $5.5 billion since 2016. Steward’s former owner Cerberus Capital Management had extracted at least $800 million from the hospital chain by the time it sold out in 2021 to Steward founder Ralph de la Torre. Along with some senior managers, de la Torre bought out the private equity firm’s interest by taking out a $335 million loan with MPT, and shortly thereafter extracted their own nine-figure dividend from Steward. (Shortly after that, de la Torre bought a super-yacht.)

The Stock of Kidney Dialysis Firm, DaVita, Has Soared 2,500 Percent Since 1996; a New Book Reveals the Dangerous Cult Behind the Rise

Pam Martens and Russ Martens, July 31, 2023 [Wall Street on Parade, via Rick S.]

Investigative reporter and author, Tom Mueller, has dedicated his latest book to pulling back the curtain on the dirty underbelly of this industry. The book, How to Make a Killing: Blood, Death and Dollars in American Medicine, will be available for sale in bookstores tomorrow. If you have a loved one receiving kidney dialysis at centers run by either DaVita or Fresenius, we urge you to stop what you’re doing, buy this book, and read it from cover to cover. The book presents nothing short of an indictment of rabid capitalism run amok, effectively turning what should be a life-saving branch of medicine into a criminal enterprise.

DaVita and Fresenius are a duopoly, controlling about 80 percent of the 6,900 dialysis centers across America, writes Mueller….

What is going on here is not a deep secret from the U.S. Department of Justice. Mueller explains that “Between 2014 and 2018 alone, DaVita and its subsidiaries paid out more than $1.5 billion in legal settlements and damages. DaVita’s founder, Kent Thiry, who ran a bizarre, cult-like atmosphere at the company – which is brilliantly depicted by Mueller in ghastly detail – stepped down in 2019 and was indicted two years later by a federal grand jury in Colorado. The Big Law firm, WilmerHale, brags on its website as to how it got both Thiry and DaVita acquitted at trial….

A Sick System

Maureen Tkacik and David Dayen, July 31, 2023 [The American Prospect, via Rick S.]

…The problem is, because the country essentially lacks any institutions designed to broadly improve public health, our medical advances are funneled through a veritable gauntlet of gatekeepers, distributors, middlemen, subcontractors, loophole-exploiters, conglomerates, and monopolies, all under the watchful eye of Wall Street investors. Managing a hospital or clinic today requires hiring an ever-mushrooming cadre of lobbyists, consultants, and contractors to navigate this confusing new world. The science of health care points to a bright future; the business of health care points directly backwards….

Where is the money for the most expensive health care system in the world going? The cut of gross national health care expenditures commanded by administrative overhead and waste has ballooned to an estimated 30 percent; the portion that pays doctors and nurses has fallen. Experts estimate that fraud comprises at least $10 of every $100 the U.S. government spends each year on health care. And how much does the government spend policing that fraud? In 2021, that figure was two cents, according to the HHS inspector general. Wealth extraction has become so normalized in American health care, it can barely be considered illegal.


Restoring balance to the economy

Lina Khan: The most feared person in Silicon Valley is a 34-year-old in DC 

[Yahoo Finance, via Naked Capitalism 8-13-2023]

Taxing the 1 per cent: Public Opinion vs Public Policy 

[Cambridge Core, via The Big Picture 8-17-2023]

Recent studies suggest that public policy in established democracies mainly caters to the interests of the rich and ignores the average citizen when their preferences diverge. I asked Norwegians to design their preferred tax rate structure and matched their answers with registry data on what people at different incomes actually pay in tax. I find that within the top 1%, tax rates are far below (by as much as 23 percentage points) where citizens want them to be.

How State Capacity Can Help America Build: A new paper shows underinvesting in government comes at a staggering cost.

David Dayen, August 17, 2023 [The American Prospect]

Zachary Liscow, a professor at the Yale Law School who until recently was the chief economist in Biden’s Office of Management and Budget, co-authored the paper with William Nober of Columbia University and Cailin Slattery of UC Berkeley. It finds significant cost drivers to building in an unheralded place: the procurement process, which accounts for one-quarter of all U.S. government expenditures.

Through an elegant study that isolates procurement processes, Liscow and his co-authors demonstrate that increases in government capacity, which can invite more bidders into a project and foment competition, translate into substantial cost reductions, which subsequently leads to faster and more robust projects. While one shouldn’t translate the study into an overarching monocausal theory for how to accelerate building, it’s a piece of the puzzle that is woefully understudied and should enter the conversation.

THE PAPER LOOKS AT STATE ROAD RESURFACING PROJECTS, which is a good way to reduce the variables on cost overruns. In general, citizens don’t clamor to stop projects that fill potholes, and permitting is usually straightforward. It’s also where the money goes in much of our infrastructure spending: $187 billion was spent on highways in 2018, and little of that on new highways. Yet there is substantial variation in cost. The authors point to the neighboring states of Georgia and South Carolina; Georgia spends about $189,000/mile to resurface on average, while South Carolina spends almost twice as much ($376,000/mile)….

Perhaps the biggest lesson is that the Reagan Revolution degraded government capacity, and the neoliberal turn in the 1990s, combined with the Great Recession’s savagery to government head counts, kept government permanently hobbled. Even in areas as routine as road repaving, the effect is substantial.

The logic of neoliberalism was that reducing the scope of government would reduce spending. What the paper makes clear is that the result was the exact opposite: increased spending for the things we need government to do. The investment in building capacity pays off in the long term, and as we re-enlist in industrial policy, that will likely become more pronounced.

It’s All the Same Fight: Reflections on a week in the age of corporate power

David Dayen, August 18, 2023 [The American Prospect]

The more you poke around our economy, the more you see these examples of fiduciary logic at odds with American law and basic morality. It makes you recognize that the challenges the country faces are all part of the same fight, a pitched battle against corporate power that we lose whenever political elites and pundits conveniently decide that the battle doesn’t exist.

This week offered several examples of dominant companies acting on their revenue-maximizing impulses, in both business and politics. For example, nursing home operators are under fire in New York from multiple lawsuits by state Attorney General Letitia James alleging fraud and neglect. So the operators started pouring tens of thousands of dollars into the campaign coffers of New York’s governor Kathy Hochul, which could “buy influence” with one powerful player in the regulatory landscape, according to one government watchdog.

Vital cancer drugs are in shortage nationwide because of complicated factors involving bulk purchasing groups with unbreakable sole-source contracts that make producing generic drugs unprofitable. The shortages do make it profitable for a network of “gray market” distributors that follow shortage lists, buy up whatever supply they can find, and then jack up prices 1,000 percent for desperate hospitals. The ultimate culprits here are the concentrated group purchasing organizations that create drug shortages in the first place, and the concentrated distribution firms at the top that fail to maintain enough supply to allow for this price-gouging.

More evidence connects the tragic Maui fires to sparks from toppled power lines, just a few years after Pacific Gas & Electric’s power lines wiped out the city of Paradise, California. PG&E later committed to burying power lines, but didn’t do so before because of the cost; risk analysis was clearly not factored into this calculation. It seems Hawaiian Electric Co. didn’t learn from the example.

Elsewhere, the nation reached an entertainment milestone, as television accounted for less than 50 percent of U.S. viewing time last month, with streaming now a majority. Streamers who built up their networks by offering cut-rate prices to attract eyeballs have flipped the switch to recoup their investment, raising prices by almost 25 percent in the last year. As most of the same companies that control streaming are responsible for abandoning cable television to a wasteland of reruns, they give viewers little choice but to pay up.

Connected with this is the fact that residuals for actors and writers are much worse for streaming, prompting the studios’ move to those platforms. This has been a disaster for America’s most vibrant export, entertainment. When UAW president Shawn Fain said this week that striking Hollywood creatives and auto assembly line personnel had a lot in common, he was dead-on; both saw the dominant businesses in their industries change the terms for workers to get out from under paying them for their work. “All of us are at war with corporate greed and with companies that are prioritizing profits over people,” Fain said.

Predatory finance

Argentina adopting US dollar to fight inflation would be ‘insane’ neocolonialism, says economist Ha-Joon Chang

Ben Norton [Geopolitical Economy, via Mike Norman Economics, August 17, 2023]

Wall Street Mega Banks and Their Disgraceful Bailout Charts Since the Repeal of the Glass-Steagall Act in 1999

Pam Martens and Russ Martens, August 15, 2023 [Wall Street on Parade]

The Bill Clinton administration’s repeal in 1999 of the 1933 Banking Act, commonly known as the Glass-Steagall Act, ushered in the greatest kleptocracy America has ever known. The Cambridge dictionary defines “kleptocracy” as: “a society whose leaders make themselves rich and powerful by stealing from the rest of the people.” In fact, the actual goal of repealing Glass-Steagall was to do just that.

The momentum for the repeal of Glass-Steagall came from the announcement in 1998 that Wall Street veteran, Sandy Weill, wanted to merge his trading firms, Salomon Brothers and Smith Barney (under the Travelers Group umbrella), with Citicorp, parent of the federally-insured Citibank commercial bank. Because of the Glass-Steagall Act, such a merger was illegal at the time.

The budding kleptocracy in 1998 didn’t waste any time in putting the plan into motion and reaping the windfall financial rewards. Clinton’s Treasury Secretary, Robert Rubin, who pushed for the repeal of Glass-Steagall, went directly from the Treasury Department to take a seat on Citigroup’s Board, where he was lavishly compensated to the tune of $120 million over the next decade. (The Financial Crisis Inquiry Commission, that was created after these Wall Street “universal banks” blew up the U.S. financial system in 2008, made a criminal referral of Rubin to the U.S. Department of Justice, asking that Rubin’s conduct at Citigroup be investigated. Nothing more came of it. The Wall Street kleptocracy has ruled the U.S. Department of Justice since the repeal of Glass-Steagall. Instead of indicting mega bank executives, the Justice Department now hands out non-prosecution and deferred-prosecution agreements to the banks — and winks at the bank as it violates each probation agreement.)

Judge Jed Rakoff Has Regularly Dined in the Past with the Chairman of the Law Firm that Just Got a Big Win in His Court in the JPMorgan Sex Trafficking Case

Pam Martens and Russ Martens, August 14, 2023 [Wall Street on Parade]

Is David Solomon Too Big a Jerk to Run Goldman Sachs? 

[New York Magazine, via The Big Picture 8-15-2023]

Boston Consulting Group — consultant to kleptocrats 

[Daily Maverick, via Naked Capitalism 8-17-2023]

The CFTC Ponders Gambling on Democracy’s Future

Timi Iwayemi, August 17, 2023 [The American Prospect]

Gambling site Kalshi is spending big on a lobbying campaign to allow people to bet on the end of the American republic….

 the company PredictIt has long allowed for betting on the outcome of certain races, but the amounts are capped at $850 per bet and 5,000 punters per market. The Commodity Futures Trading Commission (CFTC) also attempted to shut down the site this year, but the ruling is being litigated. Kalshi’s scant proposal, by contrast, would open the cash floodgates: Individuals would be able to bet as much as $250,000, while entities and eligible contract participants would be able to hedge as much $10 million and $100 million, respectively.

It’s practically a reductio ad absurdum of the wasteful financialization of the American economy. As noted, the CFTC oversees these markets, which may sound strange. It was founded to bring order to necessary futures trades in agricultural markets, but it has expanded its work beyond that in ways both wise and unwise.

Jurisdiction questions aside, there is no possible legitimate argument for unleashing sophisticated gambling on elections, which as we’ll see raises major opportunities for fraud and corruption for no public benefit. That’s why, in typical industry fashion, Kalshi—which boasts of support from Sequoia Capital, Charles Schwab, and infamous private equity pioneer Henry Kravis—has recruited a team of former CFTC officials to make its case before the agency. One of them is Brian Quintenz, a CFTC commissioner from 2017 to 2021 who now sits on Kalshi’s board. While serving as commissioner, Quintenz played a key role in approving Kalshi’s application as the first financial exchange to trade event contracts, just one day after the 2020 elections. Wouldn’t you know it, a year after playing a leading role in Kalshi’s approval as a Designated Contract Market, Quintenz joined Kalshi’s board.

The second former CFTC official is Eliezer Mishory, who served as Quintenz’s special counsel, and is now Kalshi’s chief regulatory officer and general counsel. The third is Jeff Bandman, who previously led the Division of Clearing and Risk and the Office of International Affairs at the agency, and now leads regulatory strategy at Kalshi. Bandman also served as special counsel to previous CFTC chairman Timothy Massad, and as fintech adviser to “Crypto Dad” Christopher Giancarlo, launching LabCFTC, the agency’s fintech innovation hub.


Information age dystopia / surveillance state

AI-Generated Art Lacks Copyright Protection, D.C. Court Says 

[Bloomberg, via Naked Capitalism 8-19-2023]

Highway Robbery: Beware the school bus camera ticket scam

Tom Drischler, August 17, 2023 [DailyKos]

…Many school districts and local governments, like where I live in Montgomery County, Maryland, have been bamboozled by persuasive sales pitches from school bus stoplight camera companies. (Note: All references to Montgomery County in this diary pertain to the one in Maryland.) There are two steps to the pitch:

Pitch 1: The camera companies’ modus operandi is to create and maintain a market for their product by preying upon peoples’ emotional desire to keep kids safe….

Pitch 2: The camera system can be installed at “no cost” to the local government, while conveniently side-stepping normal competitive bid processes. The “violator-funded” camera company will install bus cameras and a ticket processing system for free! In exchange, the company gets to keep all of the ticket revenue until their start-up costs have been fully reimbursed. Thereafter, the company retains 60% of the revenue in a perpetual lopsided deal. The local jurisdiction gets to keep the remaining 40% – an independently funded cash cow that local governments love, especially police departments….

This Is What Happens When People Start Actually Reading Privacy Policies 

[The Markup, via Naked Capitalism 8-13-2023]

Requiring ink to scan a document—yet another insult from the printer industry 

[ars technica, via Naked Capitalism 8-17-2023]

An impossibility theorem on truth-telling in fully decentralized systems (PDF)

[Bank of International Settlements, via Naked Capitalism 8-14-2023]

Ruthless Endangerment 

E.W. Neidermeyer [via Naked Capitalism 8-14-2023]

Liability and robot cars. Optimizing the legal environment rather than making software that works.

The Dream Was Universal Access to Knowledge. The Result Was a Fiasco. 

[New York Times, via Naked Capitalism 8-14-2023]

In the pandemic emergency, Brewster Kahle’s Internet Archive freely lent out digital scans of its library. Publishers sued. Owning a book means something different now.

Amazon pinches sellers: Use our costly logistics services or pay extra fee [Updated] 

[ars technica, via Naked Capitalism 8-17-2023]

Biden Administration Defends Social Media Censorship Operation 

[, via Naked Capitalism 8-15-2023]

ESPN Is About To Get Much More Annoying

[Defector, via Naked Capitalism Water Cooler 8-15-2023]

“ESPN announced on Tuesday that it was making a billion-dollar deal with casino company Penn Entertainment. Over the next 10 years, Penn will pay ESPN $2 billion in exchange for the right to slap ESPN’s name on its sportsbook, and for the ability to market that sportsbook through ESPN’s various media channels. This is going to suck. The legalization of sports gambling has made being a sports fan much more annoying. Over the last few years, the entire sports media industry has been steadily and increasingly underwritten by advertising dollars from sportsbooks, who have made deals with as many leagues, publications, and broadcasters as possible in order to get more bettors onto their apps. Not so long ago, you could watch an NBA broadcast on TNT without Charles Barkley and Kenny Smith interrupting the action to tell you about an exciting new parlay available on whatever stupid gambling app they are in bed with, but that time has passed. To watch, listen, and read about sports now is to be assaulted by advertising for a product meant to separate you from your money as quickly as possible.”


(anti)Republican Party

Why Billionaires Fund Anti-Trans & Anti-Black-History Political Movements

Thom Hartmann, August 16, 2023 [DailyKos]

“Say you’re in a room with 400 people. Thirty-six of them don’t have health insurance. Forty-eight of them live in poverty. Eighty-five are illiterate. Ninety have untreated mental illnesses. And every day, at least one person is shot. But two of them are trans, so you decide ruining their lives is your top priority.”

Against the Eugenicons 

Michael Lind [Compact, via Naked Capitalism 8-15-2023]

Eugenic ideology was used to justify quotas limiting Jewish and nonwhite immigration to the United States in the 1920s. It was also invoked in support of the compulsory sterilization by state governments of more than 60,000 Americans. Later, the same ideology legitimated the genocide of millions of Jews and Romani people by Hitler’s Germany. Discredited after World War II by association with Nazi racial-hygiene theories, ideas about superior and inferior races, and explanations of social phenomena in terms of heredity, disappeared from academic thought and public discourse and survived only on the outer fringes of the right.

Today, however, if you spend any time on Twitter—or whatever it’s now called—you are bound to run into users who throw around phrases like “bell curve” and “cognitive elite” that were given wide currency by Charles Murray and the late Richard Herrnstein in their 1994 book, The Bell Curve: Intelligence and Class Structure in American Life. Murray and Herrnstein made sweeping assertions about genes, IQ, and racial disparities. As critics, including yours truly, demonstrated at the time, the authors relied on publications by figures like the late J. Philippe Rushton, originator of the brain-to-penis-ratio theory of intelligence, some of them sponsored by the eugenicist Pioneer Fund. Not just liberals and leftists, but also many conservatives and neoconservatives like Thomas Sowell and Nathan Glazer pointed out the flaws in the book.

Murray has enjoyed an influential career in the decades since. Today, he is the F. A. Hayek Chair Emeritus in Cultural Studies at the American Enterprise Institute, where he conducts research on “society and culture, universal basic income, [and] genomic social science,” as the institute puts it. Murray has done some valuable research, as in the 2012 book Coming Apart, which empirically documented the stark bifurcation of American society along class lines. And after a vicious leftist mob attacked Murray during a speaking engagement at Middlebury College in 2017, he came to be seen as a martyred champion of science and free speech.

New York Times Helps Marco Rubio Push Persecution Of Antiwar Leftists 

Caitlin Johnstone [via Naked Capitalism 8-15-2023]

Election workers who face frequent harassment see accountability in the latest Georgia charges

[Associated Press, via Naked Capitalism Water Cooler 8-18-2023]

“Tonya Wichman has overseen elections in a rural Ohio county for eight years and hasn’t experienced any significant problems with voting or counting the ballots. But that doesn’t mean no big worries at all. What does concern her is the frequent harassment, intimidation and even physical threats she and her staff have been receiving since the 2020 election. It got so bad ahead of the 2022 midterms that her staff got police protection when leaving or coming to the office…. Election worker intimidation is one key element of the conspiracy alleged in the Georgia case. Tuesday’s indictment alleges that several of the defendants falsely accused Fulton County election worker Ruby Freeman of committing election crimes and says some defendants traveled from out of state to harass and intimidate her.”

Trump’s Toast, Folks

[CATO Institute, via Naked Capitalism Water Cooler 8-18-2023]

The Georgia indictment is a bombshell—the equivalent of a Texas Hold’em poker player shoving their entire stack of chips into the middle of the table and declaring, “”All in.”” In sum, the Georgia indictment alleges that Trump orchestrated a sprawling criminal conspiracy (or “”enterprise,”” in the language of the indictment and Georgia’s state RICO statute) involving more than 20 named and unnamed co‐​conspirators ranging across half‐​a‐​dozen states for the purpose of unlawfully changing the result of the November 2020 presidential election. There is nothing subtle or nuanced about this indictment—in effect, it accuses Donald Trump, Rudy Giuliani, Mark Meadows, John Eastman, Jeffrey Clark, Sidney Powell, and a dozen others of staging an unsuccessful coup. If the case goes to trial, which seems likely, the jury will either believe that characterization or they will not. I think they will, for three reasons. 1. Trump’s disdain for truth. America has seen its fair share of lying politicians, but Donald Trump is in a class of his own….

2. Trump’s disdain for process. Again, Donald Trump doesn’t see the world the way normal people do. Instead of institutions to be respected and rules to be followed, he sees marks to be gulled and systems to be gamed—emphatically including elections and trials.”

3. Complexity. The third reason Trump will be convicted in one or more of the cases against him is this: complexity. Litigation is a complicated process featuring an often mind‐​numbing interplay of procedural rules, substantive laws, court filings, documents, discovery, fact witnesses, expert witness, and a constant procession of unforeseen twists and turns that evoke the maxim that no plan survives contact with the enemy. And that complexity multiplies geometrically with the number of related proceedings going on at the same time, which means that Trump’s legal teams will find it nearly impossible to coordinate across all four of the ongoing prosecutions in New York, Florida, DC, and now Georgia. But it’s even worse than that. Litigation complexity is hard enough to manage with a client who plays it straight, both with the court and with their own counsel. But Trump doesn’t play it straight—he never has, and it appears he’s constitutionally incapable of doing so. So he will lie: in court, in public, on social media and—fatally—to his own lawyers. Simply put, Trump’s defense teams will not be able to keep track of all the different positions their client has taken (or directed his various lawyers to take in different proceedings), and eventually things will come completely unraveled.

Political violence in polarized U.S. at its worst since 1970s 

[Reuters, via The Big Picture 8-13-2023]

“In the early 1970s, American political violence was perpetrated more often by radicals on the left and focused largely on destroying property…In contrast, much of today’s political violence is aimed at people – and most of the deadly outbursts tracked by Reuters have come from the right.”


January 6, 2020

Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win 

[New York Times, via The Big Picture 8-13-2023] Memo from Chesebro.

Anatomy of a Fraud: Kenneth Chesebro’s Misrepresentation of My Scholarship in His Efforts to Overturn the 2020 Presidential Election 

Lawrence Tribe  [Just Security, via Naked Capitalism 8-14-2023]

John Eastman Comes Clean: Hell Yes We Were Trying to Overthrow the Government

[Talking Points Memo, via The Big Picture 8-13-2023]

Eastman gets into the core justification and purpose for trying to overturn the results of the 2020 election and overthrow the constitutional order itself. He invokes the Declaration of Independence and says quite clearly that yes, we were trying to overthrow the government and argues that they were justified. Problem is, the Declaration of Independence has no legal force under American law.

The Sweep and Force of Section Three 

William Baude and Michael Stokes Paulsen [University of Pennsylvania Law Review, via Naked Capitalism 8-13-2023]

[Both Baude and Paulsen are members of the (anti)Federalist Society]

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three. First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

The Constitution bars Trump from holding public office ever again

Donald K. Sherman  The Hill, via Naked Capitalism Water Cooler 8-18-2023]

Last September, three New Mexico residents represented by my organization, Citizens for Responsibility and Ethics in Washington, won the first case in more than 150 years removing an elected official from office based on participation in an insurrection. The court ruled that then-New Mexico County Commissioner Couy Griffin had violated Section Three of the 14th Amendment by recruiting men for battle to join Trump’s “”wild”” effort to overturn the election Jan. 6, normalized violence and breached police barriers as part of the weaponized mob that allowed others to overwhelm law enforcement and storm the Capitol. Griffin’s removal marked the first case at the federal or state level concluding that what occurred Jan. 6 was an insurrection. In Griffin’s case, the court found that disqualifying officials under Section Three of the 14th Amendment does not conflict with the First Amendment right to protest. It also rebuffed attempts by Griffin to conflate Jan. 6 with Black Lives Matter protests… The Disqualification Clause has already been used successfully to promote accountability for the insurrection, and, in the coming months, it will be used again to prevent Trump and others from serving in public office.”

See also 2023’s “DisqualifIed: The Case for Donald Trump’s Disqualification under the Fourteenth Amendment” (PDF).

Their Fourteenth Amendment, Section 3 and Ours

[JustSecurity, via Naked Capitalism Water Cooler 8-15-2023]

From 2021. “[A] way of thinking about constitutions… gained hegemony in American constitutional thought only in the late nineteenth and early twentieth centuries. On this view, which continues to structure contemporary constitutional thought in the United States, constitutions are legal documents whose meaning is best interpreted by legal authorities. Persons who draft a constitution provision that speaks of ‘insurrection,’ ‘incitement,’ or, for that matter, ‘freedom of the press’ have in mind a fixed legal meaning that courts are expected to implement. From this legal perspective, the question ‘what did the persons responsible for Section 3 mean by ‘insurrection’?”” makes sense, just as the more common question ‘what did the persons responsible for Section 1 mean by ‘equal protection’?’ Many, not all, Republicans in 1866 were popular constitutionalists who believed the meaning of constitutional provisions was worked out at least partly through politics rather than through legal proceedings.” And: “The Republicans who drafted the Fourteenth Amendment had a similar political notion of how constitutional meaning was determined. If the Fourteenth Amendment worked as they expected, the national government would be controlled by persons of unquestioned loyalty to the government. These representatives could be trusted to determine what constituted an insurrection and what sort of participation in an insurrection merited disqualification under Section 3. No need existed to hamstring them with a technical legal definition of ‘insurrection’ or ‘participation’ that might turn out to be inconsistent with the constitutional purpose of giving Congress the tools necessary to maintain loyal control of the state and federal government.  We might make an analogy to a tenure committee in a functional department (does one exist?). The standards are quite vague (original professional work of high quality), but the members of the committee because of their rectitude and expertise can be trusted to distinguish tenurable work from dreck.”


Enforcing the 14th Amendment’s Bar on Insurrectionist Officers and Candidates [American Constitution Society].

[American Constitution Societ, via Naked Capitalism Water Cooler 8-16-2023]

The ACS is the New York Generals to the Federalist Society’s Harlem Globetrotters. “State election officials charged with determining ballot access in the presidential primaries will have to make an initial determination on whether he is eligible to serve under Section Three. Some of these officials will invariably say that Trump is ineligible, and he will then challenge those rulings in court. While there is authority holding that Section Three is not self-enforcing in an area under federal jurisdiction (for instance, in the District of Columbia), states did enforce Section Three on their own during Reconstruction and can do so again. The Supreme Court will almost certainly be asked to hear at least one of the state cases on Trump’s eligibility. Nevertheless, Congress should take action to enforce Section Three against anyone engaged in the January 6th insurrection. There is currently no federal statutory authority to enforce Section Three, and if this deficiency is not addressed many problems will follow. First, some states may simply choose to ignore Section Three or do minimal enforcement. Second, having each state enforce Section Three in its own way will result in a haphazard system especially ill-suited to resolving a question of presidential ineligibility. Third, if former President Trump runs again, his eligibility must be determined promptly–before any elections take place–otherwise the Republican nominating contest will be thrown in chaos.” • I’m assuming only Democrat election officials would rule Trump ineligible. And even they will want cover in the form of expert opinion — cover which I am sure the dense network of NGOs and think tanks that comprises the Censorship Industrial Complex will be primed to provide

The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment

[Congressional Research Service, via Naked Capitalism Water Cooler 8-16-2023]

From 2022. “Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act. The Congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias…. As shown in the Berger experience discussed above, Congress has previously viewed Section 3 of the Fourteenth Amendment as establishing an enumerated constitutional qualification for holding office and, consequently, a grounds for possible exclusion.”

Of Insurrections, Presidents, and the Utter Failure of Constitutional Law to Address the Real Issues

[Dorf on Law, via Naked Capitalism Water Cooler 8-15-2023]

“What Baude and Paulsen clearly missed, which Professor McConnell and Chief Justice Chase did not, is the most important question regarding the legal issues surrounding Section 3: what are its consequences? How will the authors’ interpretations play out in the real world?  Is it a good idea to apply Section 3 to President Trump specifically and the events of January 6th generally? Will Section 3 be badly abused in the future to people who, unlike Trump, do not deserve to be disqualified from office? There are no clear answers to those questions but those are the questions we should be debating (as McConnell did)…. Bush v. Gore provides an excellent example of how we would all be better served if justices and law professors focused more on facts and consequences and less on foolish formalisms. It is a well-accepted idea that the equal protection analysis conducted by the justices in that case reversed the justices’ normal partisan preferences on equal protection with all the conservatives giving the clause a broad reading and two liberals giving it a narrow reading. More importantly, the justices’ interference in that election may well have changed the course of human history (just ask the people of Iraq). That interference was not persuasively grounded in text, history, or precedent. The merits and jurisdictional issues were complex, contestable, and new. Retired Judge Richard Posner, who had no use for legal formalisms, believed the case was decided correctly because America needed an answer and he feared the chaos and confusion would be very dangerous if the Court let the case go until Florida could finish the recount [bullshit]. Whether you agree with that analysis or not, and I do not, we are talking about deciding an incredibly close presidential election. Pragmatic on-the-ground concerns are completely appropriate for this kind of monumental case, especially when the legal issues are blurry without persuasive answers. If he were able today to respond to the Baude and Paulsen article, he would say something like, ‘126 pages and not a word about the consequences and implications for our politics and our country of disqualifying Trump? That’s absurd.’”

Heather Cox Richardson, April 6, 2023 [Letters from an American]

But when the southern state delegations elected under Johnson’s plan arrived in Washington, D.C., to be seated, Republicans turned them away. They rejected the idea that after four years, 600,000 casualties, and more than $5 billion, the country should be ruled by men like Stephens, who insisted that American democracy meant that power resided not in the federal government but in the states, where a small, wealthy minority could insulate itself from the majority rule that controlled Congress.

In state government a minority could control who could vote and the information to which those voters had access, removing concerns that voters would challenge their wealth or power. White southerners embraced the idea of “popular sovereignty” and “states’ rights,” arguing that any attempt of Congress to enforce majority rule was an attack on democracy….

And that’s where the Fourteenth Amendment came in. When Johnson tried to restore the former Confederates to power after the Civil War, Americans wrote into the Constitution that anyone born or naturalized in the U.S. was a citizen, and then they established that states must treat all citizens equally before the law, thus taking away the legal basis for the Black Codes and giving the federal government power to enforce equality in the states. They also made sure that anyone who rebels against the federal government can’t make or enforce the nation’s laws.

Republicans in the 1860s would certainly have believed the Fourteenth Amendment covered Trump’s attempt to overturn the results of a presidential election. More, though, that amendment sought to establish, once and for all, the supremacy of the federal government over those who wanted to solidify their power in the states, where they could impose the will of a minority. That concept speaks directly to today’s Republicans.

[TW: One of the studies cited as important by the two Federalist Society academics Baude and Paulsen is “Amnesty and Section Three of the Fourteenth Amendment”, by Gerard N. Magliocca (Constitutional Commentary, University of Minnesota Law School, Spring 2021), Magliocca quotes the Joint Committee on Reconstruction after the Civil War for citing this reason for Section Three:

“Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. The tendency of continuing the domination of such a class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result.

Now note that the Confederates had “exclusive possession of political power” in only some of the recently defeated Confederate states, not in the entire nation. So, the northern Congressmen and Senators were clearly intent on eliminating, or at least blocking, the political power of former Confederate factions in specific states. Which raises the question, does the Congress have the power to intervene politically in the internal affairs of a state of the Union? Magliocca addresses this directly on pages 98-99. After the state of Georgia had been readmitted to the Union,

…in 1869 Georgia was kicked out of Congress for expelling all of its Black legislators and not its white legislators who were ineligible under Section Three. President Grant asked Congress to take action to enforce “the third clause of the fourteenth amendment.” Congress then directed the Governor to summon the state legislature into special session and require all members to swear that they were eligible or were “relieved, by an act of the Congress of the United States, from disability as provided for by section three of the fourteenth amendment to the Constitution of the United States.” Through Section Three, therefore, Congress and the Executive Branch were now deeply involved in internal state politics.

Magliocca mentions the Guarantee Clause of Article IV (“[T]he United States shall guarantee to every State in this Union a Republican Form of Government . . . .”) as one basis for the federal government intervening in the internal affairs of a state. (See Arthur E. Bonfield, “The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude” (pdf), 46 Minnesota Law Review 513 (May, 1961) ).

Tellingly, Baude and Paulsen do not mention the Guarantee Clause. This makes sense, because Baude and Paulsen are conservatives affiliated with the Cato Institute, and my argument is that conservatives are engaged in tearing down the spirit of republicanism so as to provide as much freedom as possible to “free enterprise.”

This, of course, brings up a question most Americans will ask: Well, isn’t the United States supposed to be capitalist? Isn’t that what the Constitution is all about? The answer will surprise most people, and shock many: actually, there is nothing in the Constitution that specifies the national economy be organized on capitalist lines. In fact, almost all mention of economic issues in the Constitution is to create powers for the national government to intervene in and even direct economic affairs.

In their 1937 book, The Power to Govern: The Constitution — Then and Now (W.W. Norton & Co., New York, NY, 1937), Yale Law professor Walton Hale Hamilton and Princeton University history professor Douglass Adair responded to the Supreme Court’s obstruction of New Deal legislation by showing that the Founders fully intended to create a national government with broad and far-reaching powers to ensure that all economic activity was channeled and directed to national development and the promotion of the general welfare. They carefully investigated the etymology of certain words—industrymachineenginemanufacture, and above all, commerce—which were rapidly evolving at the time of the Constitutional Convention, as the economy shifted away from an almost purely agricultural footing in the early stages of the Industrial Revolution.

Particularly important is the word, commerce, which they argue was carefully and deliberately selected by the Framers to make the Constitution encompass any and all economic activity:

“The word was to the Fathers an epitome of the great movement which was transforming the ancient regime into the mercantile world…. It was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy… it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation…. the boundaries of commerce extended to the frontiers of the domestic economy.”

Adair and Hamilton argue very persuasively that the Constitution was adopted to create a stronger, more vigorous government able to steer the economic destiny of the nation, with powers clearly superior to the states, and able to create and impose national policies even over state objections or reluctance. As Pennsylvania delegate James Wilson—who was later appointed one of the first five Supreme Court Justices—declared in the Constitutional Convention on Saturday, July 14,

“It has never been a complaint against Congress that they have governed overmuch. The complaint has been that they have governed too little. To remedy this defect, we were sent here.”

The best expressions of this are Alexander Hamilton’s major papers on the constitutionality of a national bank, and the subject of manufactures. The response of conservatives has been the same as the slave-holders leading up to the Civil War, to argue the exact opposite: that the powers for the national government are strictly limited to those “enumerated” explicitly in the Constitution. This is, of course, the issue of Hamilton’s “implied powers” versus the conservatives’ and slave-holders’ “enumerated powers.” (See The Original Meaning of Enumerated Powers (pdf), by Andrew Coan and David S. Schwartz [Legal Theory Blog]

Especially surprising is that in 1982 the American Enterprise Institute — an institution of bedrock free enterprise conservatism — held a forum and published its proceedings as a book entitled How Capitalistic Is the Constitution? (pdf) (Robert A. Goldwin and William A. Schambra, editors (American Enterprise Institute for Public Policy Research, Washington, D.C., 1982).

I rather suspect that the members of the American Enterprise Institute were unhappy with the results.

In the chapter entitled “The Constitution and Hamiltonian Capitalism” Forrest McDonald wrote,

“the Constitution thus was a benchmark in the evolution of systems of political economy, for it made possible—though not inevitable—the transformation from the old order to the new…. What is more, the very idea of economic growth, with its attendant dangers of luxury and economic inequality, was incompatible with republican principles of political theory, at least in some versions of that theory. Plato, believing that relative equality of property was necessary in a republic, wanted to limit inheritances. Lycurgus, “in the most perfect model of government that was ever framed,” that of Sparta, banished trade entirely. Montesquieu, whom Americans read as the latest word on republicanism, taught that it could be sustained only by virtue, meaning “love of the republic”; frugality, simplicity, and a “mediocrity” of “abilities and fortunes” were necessary to sustain that virtue. Indeed, Montesquieu said that if equality broke down, “the republic will be utterly undone,” and thus it was “absolutely necessary there should be some regulation in respect to … all … forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the fundamental law.”

I have been, for years, putting forward the argument that in fact, the Constitution is more amenable to socialism than it is to capitalism. I have also been arguing that “the left” is committing a major strategic blunder in dismissing the relevance and importance of the Constitution and these Constitutional issues. This blunder flows from the belief on “the left” that the Constitution was irretrievably flawed from the beginning because of slavery and lack of universal suffrage. This ideology blinds those on “the left” to the essential character of all American history as a struggle between a faction desiring to build a civic republic, and a faction wanting to build something other than a civic republic. The strategic error of “the left” is not wondering, let alone not investigating, how the United States lost its fundamental hostility to economic inequality.

This essential character of all American history being a struggle to remain true to the principles of civic republicanism is well captured by Forrest A. Nabors in his 2017 book, From Oligarchy to Republicanism: The Great Task of Reconstruction (Columbia, Mo., University of Missouri Press, 2017). Nabors wrote because

“Marxists tend to conflate superior wealth with rule, their analysis did not isolate and politically distinguish the wealthy Southern planters from wealthy Northern industrialists. Both industrialists and planters were oligarchs in their view. This obscured the different character of the South.” (pp. 19-20.)

Nabors quotes the Republicans senators and representatives debating the legislation to enact Reconstruction after the Civil War, who had to grapple with the slaveholding oligarchy that had arisen from the economic inequality of the South. including describing how the disposition, nature, and behavior of slaveholders became ever more despotic and tyrannical over time. In a section entitled “How Slavery Causes Oligarchy: Effect on the Personal Character of Masters,” Nabors excerpts and paraphrases from Senator Charles Sumner’s dramatic speech upon his return to the Senate in 1860 (after more than three years recuperating and rehabilitating from the attack by South Carolina Congressmen Preston Brooks in 1856).

Slavery reshaped the political society that admitted it, imparted its essential character, barbarism, to that political society, and reorganized it around that central principle. The inner character of slavery corresponded to the inner character of the political regime, which bred men with its corresponding character, American barbarians…. P88

So, to state it again, the central issue was that “Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions…”

I believe commentators are quite correct to worry about the severe political consequences of using Article 3 to bar Trump from the November 2024 ballots, particularly misuse by (anti)Republican Party partisans. But I think the real issue they we need to address is how Trump, Trump’s supporters, and conservatives in general, have (to paraphrase) “produced a political spirit adverse to republican institutions.” Their beliefs are genuine. But so were the beliefs of the slaveholders.

What we have yet to grasp is that the “spirit of republicanism” and its fundamental principles – Justice, deliberate care to promote the General Welfare, the advancement of science and technology, and the improvement of the human condition – basically require the creation and maintenance of a welfare state. And a welfare state, of course, is the bête noir of conservatives.

There should be no wonder that conservatives prefer British ideas over American. They look to Edmund Burke and avert their eyes from Thomas Paine; they worship Adam Smith’s invisible hand and abhor Alexander Hamilton’s activist government; they cite William Blackstone rather than Associate Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States; they idolize Winston Churchill and hate Franklin Roosevelt. Conservatives and the (anti)Republican Party today oppose a wide range of Constitutional provisions which were intended to give form to civic republican principles:

Conservatives will always have to be considered enemies of the republic. No matter how many decades they – and their think tanks, conferences, and noise machine – are allowed to assail — largely unimpeded — the principles of Justice, and the General Welfare, and to promote the subversive ideas of enumerated powers and states rights. Or even to attack the very idea of the General Welfare as a dangerous invitation to create an overbearing “nanny” state. The rest of us must wake up to the importance of these underlying Constitutional issues of philosophy of government.

Yes, we need to banish Trump and his followers from office. But to make the banishment effective, and avoid another civil war, we need revive the principles and ideals of civic republicanism.

(For a monumental statement on what a republic ought to be, see the speech by Massachusetts Senator Charles Sumner, “The Equal Rights of All: The Great Guaranty and Present Necessity, for the Sake of Security, and to Maintain a Republican Government. Speech in the Senate, on the proposed Amendment of the Constitution fixing the Basis of Representation, February 5 and 6, 1866.”)

-end TW ]


The (anti)Federalist Society Infestation of the Courts

Trump Judge’s Anti-Abortion Ruling Followed Payments From Group Leading Case

Andrew Perez and Julia Rock, April 17, 2023 [The Lever]

One of the judges who issued Wednesday’s federal court ruling that could significantly reduce access to medication abortions has close ties to the conservative legal advocacy group that argued the case, according to records reviewed by The Lever.

A three-judge panel in the U.S. Fifth Circuit Court of Appeals ruled that regulators have improperly expanded access to mifepristone, the main pill used in more than half of abortions in the United States. The ruling preserves the legality of mifepristone but prohibits sending it through the mail or prescribing it through telehealth appointments.

Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel

[ProPublica, via The Big Picture 8-13-2023]

The fullest accounting yet shows how Thomas has secretly reaped the benefits from a network of wealthy and well-connected patrons that is far more extensive than previously understood.

Clarence Thomas’s $267,230 R.V. and the Friend Who Financed It

[New York Times, via The Big Picture 8-13-2023]

The vehicle is a key part of the justice’s just-folks persona. It’s also a luxury motor coach that was funded by someone else’s money.

Lawyers with supreme court business paid Clarence Thomas aide via Venmo

[The Guardian, via The Big Picture 8-13-2023]

Payments to Rajan Vasisht, an aide from 2019-21, underscore ties between the justice and lawyers who argue cases in front of him

Justice Alito is Wrong: Congress Can and Does Regulate the Supreme Court 

[Verdict, via Naked Capitalism 8-18-2023]

The Looming Supreme Court Nullification Crisis

[Washington Monthly, via Naked Capitalism Water Cooler 8-16-2023]

Starting out with Alabama’s defiance of the Supreme Court’s ruling in Allen v. Milligan that a districting map violated the voting rights Act. Then: “Since 2016, Republicans’ shameless political meddling with the Court—the blockade of the Merrick Garland nomination, the issuance of Donald Trump’s list of judges, and his promise that his judges would “”automatically”” overturn—were radical events. Those and what followed made the Court a different institution than it had been since at least the 1930s when the ‘switch in time’ ended its vendetta against the New Deal. Simply put, it is not acting like a court; it will not be treated indefinitely by friend or foe as if it were one. The problem with contemptible behavior is that it draws contempt from friends and foes. Let’s get serious: Everyone sees at least some members of the conservative majority for what they are—not simply intellectually but, to a stunning degree, actually dishonest, the kind of traffic-court hacks who can be bought with dinner at Applebee’s, a dime-store award plaque, and a weekend at Myrtle Beach.  Blue states would be foolish not to try blocking future high-profile, adverse Supreme Court orders.”


Democrats’ political malpractice

Bidenomics Isn’t Working For Working People

Stephen Semler, August 15, 2023 [The Lever]

…data released late last month show food insecurity at its highest level since Biden took office, and average financial hardship in 2023 is worse than it was over the last three years. In other words, “Bidenomics,” the president’s economic plan to grow the economy “from the middle out and the bottom up,” has been accompanied by a humanitarian crisis.

This is a disaster of Democrats’ own making. Aid measures had previously softened the blow of the COVID-19 pandemic, and Democrats vowed to make much of that aid permanent by enacting a robust social agenda. That agenda never materialized, and the government instead cut off the temporary aid programs — leaving many millions of Americans struggling to stay afloat….

These financial and food insecurity numbers should be considered a crisis, and in the first two years of the pandemic, they were.

The federal government brought these figures down by deploying a range of new social welfare initiatives, starting in March 2020 with the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The law, among other things, temporarily boosted unemployment benefits, provided free school meals, and distributed $1,200 pandemic relief checks.

A federal foreclosure moratorium was announced later that month. In September, the Centers for Disease Control and Prevention issued a nationwide eviction ban.

In December 2020, Congress authorized another round of $600 relief payments. By mid-January 2021, economic and food insecurity rates had fallen 2.4 percent, freeing nine million people from financial distress and six million from hunger.

Conditions further improved after Biden’s American Rescue Plan authorized $1,400 relief checks and a slew of anti-poverty measures beginning in March 2021 — including enhanced child tax credits, expanded family food assistance, additional child care provider grants, extended unemployment benefits, and more.

In August 2021, there were 19 million fewer people in financial distress than when Biden entered office. The food-insecure population had dropped by more than six million.

But those achievements didn’t last. That same month, the eviction ban expired. The following month, extended unemployment coverage with additional benefits and the foreclosure ban ended as well. Then, the enhanced child tax credits, which reduced food insecurity by three percent in households with children, weren’t renewed for 2022.

Unmasking the Destructive Career of Neocon-Monster Victoria Nuland—Now Second-in-Command of Biden’s State Department 

Glenn Greenwald [via Naked Capitalism 8-15-2023]

It’s Not Your Father’s Democratic Party. But Whose Party Is It?

Thomas Edsall [New York Times, via Howie Klein at 8-16-2023]

Yesterday, Thomas Edsall asked— in his column It’s Not Your Father’s Democratic Party. But Whose Party Is It?— if  “the left’s half-century-long struggle to return the Democratic Party to its working class roots [has] become an exercise in futility?” He notes that “In recent years, the Democratic electorate has moved in two directions. First: The percentage of Democrats with a college degree has almost doubled, growing from 22 percent in 1996 to 41 percent in 2019. Second: While the percentage of Democrats who are non-Hispanic and white has fallen from 76 to 59 percent over the same period, according to Pew Research, nonwhite Democrats— Black, Hispanic, Asian American or members of other minority groups— have grown from 24 to 41 percent.”

Whites now make up just 58.9% of the U.S. population, down from 69.1% in 2000. Blacks, Hispanics and Asian Americans have grown from 30.9% then to 41.1% now. Edsall talked with political scientist Eitan Hersh about America’s profound political realignment that has seem Democrats moving away from a blue collar constituency and towards socioeconomic elites. “For a while, Hersh told him, “it looked like the Republican Party could appeal to social conservatives but maintain the economic policy supported by business elites. But now, you start to see real attempts by Republican thought leaders to be more assertive in meeting the economic needs of their constituencies… Democrats can win with college educated whites plus nonwhite voters. They can’t win with more defection from nonwhite voters. The Republicans are making the argument that their cultural and economic values are consistent with working class Americans, and that their positions transcend racial categories… If the Republican Party, could move beyond Trump and focus on this vision (which of course is impossible with Trump there making everything about Trump), they’d be presenting a set of arguments and policies that will be very compelling to a large number of Americans.”



Open Thread


Declining Population Thru Lower Birth Rates Is GOOD, Mmmmkay?


  1. bruce wilder

    The Republican Party establishment hates Trump for Trump’s populism.

  2. bruce wilder

    I do not see how the Democrat’s determination to prosecute Trump ends well for the country. This seems a conspiracy for burying any legitimacy electoral democracy has left. It is tainted by Russiagate and the impeachments and Rachel Maddox, not to mention the conduct of Democratic primaries in 2016 and 2020. Trump’s core support will not believe any of it, and maybe that does not matter and should not matter — the core of Trump’s supporters are unindicted co-conspirators and that is not lost on them I am sure. The persuadable former and possibly future Trump voters are not being given anything I can see to persuade them by the Democrats bent on this prosecution strategy. Maybe that makes some sense too — the subtext is no one wants their votes, no one wants voting really except as meaningless civic ceremony. “Our democracy” is not for the likes of “them”.

    What’s on the other side of the ditch being dug?

    perpetual insurrection?

  3. NR

    The prosecution of Trump isn’t a “strategy,” it’s an appropriate response to his instigation of a conspiracy to overturn the 2020 election.

  4. VietnamVet

    War, pestilence and famine are culminating into the Apocalypse for the simple reason the money cult seized the West and dismantled government in order to steal the wealth of the post WWII middle class. The private public partnerships – the corporate state are rackets. The fall of Afghanistan in Joe Biden’s Administration was predictable two decades ago. The thousands who died there were victims of the scam. Likewise so are the drug deaths from despair or the elderly assisted living patients in the USA who weren’t protected from COVID-19 infections.

    The Washington Post just realized a year and half too late that there is no way Ukraine can defeat the Russian Federation. Russia was provoked into invading Ukraine by the US Democrat faction of the Uniparty without a total mobilization of airpower, armament and manpower necessary to defeat a dedicated entrenched armed enemy resupplied by neighboring countries. This is the scam. The war with nuclear armed NATO and Russia (unless there is a UN armistice and DMZ like Korea) will inevitably escalate until one side or the other uses tactical nuclear weapons. This is the direct result of the global ruling cults being unable to see or deal with reality. For example, the whole globe at exactly the same time has declared that the COVID pandemic is over even though coronavirus is endemic like HIV.

    A constitutional republican government by and for the people is the only way to douse the flames roaring across the Northern Hemisphere that are turning the sky orange.

  5. Willy

    Apparently, only a completely selfish and truly evil stupid man can achieve God’s earthly will for mankind. And so God created Trump, and saw that it was good.

    Personally I think God got bored with creating perfect universes and thus made Satan. Unfortunately, God made Satan just a bit too powerful and now he’s got God locked up in a metaphysical box somewhere and we’ve got Satan posing as God.

    That’d explain why the Christian Republicans aren’t turning the cheek on this one. I’ve tried suggesting Lock Her Up™ again, but they seem awfully obsessed with Hunter Biden. And his penis.

  6. bruce wilder


    The prosecution of Trump isn’t a “strategy,” it’s an appropriate response to his instigation of a conspiracy to overturn the 2020 election.

    You are a nearly perfect parrot for propaganda talking points prepared for a certain kind of Democratic partisan. You no doubt thought Trump was conspiring with Putin back in the day and Mueller proved it and that mRNA vaccines conferred immunity to COVID. That you are reliably credulous doesn’t solve the political problems posed by the cumulative loss of credibility well-earned by a range of institutions across a wide swath of the population. Lots of people in this country have been led to believe that the character of the January 6 riot at the Capitol has been exaggerated by the mainstream media and Democratic partisans into “insurrection”, that state agents were present and involved in provoking or instigating violence, and that police preparation and response at the scene was deliberately handicapped in the hope of entrapping Trump in an incident.

    Moreover, Trump’s supporters know that mainstream media like CNN and CBS have in the past deliberately misreported verifiable facts about Trump’s beliefs and behavior to further a narrative of Trump’s boorish fecklessness. (And, yes, such “fake news” really has issued forth. Manafort, as Trump campaign manager, was reported at one time to have secretly met Julian Assange to plot against Hillary Clinton, just as way back in the day agents of Saddam Hussein met with the 9/11 hijack plotters. Trump has been reported golfing when he was in Afghanistan serving a holiday meal to troops. And so on. And, that doesn’t even touch on FBI misconduct in the prolonged Russiagate hoax and the misreporting that misconduct generated for the likes of Rachel Maddow.)

    “Both sides do it” with regard to manipulative propaganda aimed at controlling the narrative is unfortunately the way things largely are and mostly that state of affairs leaves the politically engaged with huge information deficits and distortions. Democrats who once argued emoluments are now arguing article 3 of the 14th amendment. They do so with remarkably limited self-awareness and no respect or appreciation for how what their leaders do is likely to be perceived by political opponents. While indictments and investigations in multiple jurisdictions, Federal and State, might look like “an appropriate response” to some, it can also look like lawfare to take out Biden’s most viable political opponent and vengeful retaliation by an embarrassed Deep State long at odds with Trump.

    Democrats have pursued these lines of attack with little regard to the damage they do to the legitimacy of the political process. To successfully bring legal proceedings to a conclusion before the 2024 election would require extraordinary procedural “innovations” that would further call into question respect for due process and highlight the extent to which it is all a power play to foreclose any possibility that anything as trivial as an election could affect who claims the federal executive power. “Our Democracy” no doubt requires it, donchano?

  7. bruce wilder

    Hillary’s dirty trick of paying a British ex-spy and fabulist to fabricate nonsense combined with Hunter’s peddling of his father’s influence neatly dovetailed into the career ambitions of Victoria Nuland to create a massive arms sales and LNG supply opportunity in Europe.

    Biden will no doubt be crying crocodile tears in Maui as he inspects the results of pilot-testing the latest in population elimination and dispossession technology and follow-up programs for suppressing journalism and free movement.

  8. Curt Kastens

    I myself do not give a rats ass about democracy or democratic traditions. On January 6th I was praying that there was a Abdourahamane Tchiani or Ceaser Chavez or a Vitor Alvez somewhere in the US military that would have used the events of January 6th as an excuse to order the military in to the streets and to outlaw both the Democratic and the Republican Parties and arrest the Generals responsble for turning the institutions of the US Government in to a continuing criminal enterprise.
    Foolish people would label such action a military coup. That would be taking the events out of context. The military coup happened on Novermber 22nd 1963. If the events of January 6th had played out the way that they should have played out it would have been a counter coup not a coup. In either case it would not meant the end of democracy because democracy ended a long long time ago. Sadly because such large numbers of people were only born yesterday they have not figured that out. Those that do eventually figure it out have a hard time to mount effective resistance to those waging war against not only the entire planet, but even against the people of the United States, because those criminal manipulators have had such a large headstart.
    That headstart hindered someone like Brian Bertalic or Scott Ritter from being able to gain a position that would allow them to build a following in the US military. But I strongly suspect that an even bigger factor is the low quality of citizenship skills of residents of the United States.

  9. NR

    bruce wilder:

    Trump’s conspiracy to overturn the 2020 election isn’t “propaganda talking points,” it’s what actually happened. He tried to get the Attorney General to overturn the election, then when that failed, he told him to just declare it to be fraudulent and then let him and the Republicans in Congress handle it. He then threatened to fire the AG when he didn’t agree. Trump and his co-conspirators were talking about the plot in emails and in front of people who weren’t in on it.

    All of this information is publicly available in the indictment issued. And by the way, even Trump’s co-conspirators knew that the “stolen election” narrative they were pushing was false. Here’s a direct quote from one of them:

    When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.

    You’d do well to take that quote to heart.

  10. Willy

    And now Rule of Law is talking points.

    bruce, there’s a point where nuance becomes gaslighting and details become FUD. As I tell people expert at picking out all the flaws but bereft of practicality, sometimes we’ve only got a best fit solution. Or for those with their heads so far up their asses they aren’t making sense anymore: don’t let the perfect be the enemy of the good.

    And then there’s Donald Trump. He went from being seen as a highly imperfect modern day King Cyrus to hailed as incapable of lying, in just a few short years. You seriously think his faithful are gonna listen to “nuance”? You seriously think that if the Democratic Party plays ethical and extra nice that conservatives are suddenly gonna realize the error of their own ways and a populist group hug shall ensue?

    I think we got the point that the Democratic Party is corporate corruption lite long ago. We all know of studies of plutocratic funding aimed at maintaining the Democratic Party’s anti-progressive status quo. But you’re seriously calling Trump a populist? You seriously think he cares about anything but himself after all he’s said and done?

    I have yet to meet a current day Trump supporter who isn’t one of the following:
    1. Grifting off their tribal fellows
    2. Desperately trying to obscure some deep personal corruption in their own personal lives
    3. Stupid as fuck

    You seriously think any of those people are going to come around to say, Cornell West’s way of thinking?

  11. hvd


    You are quite right about the Democrats having undermined any serious response to the lawlessness of Donald Trump with their own lawlessness in Russiagate etc. You are also correct in pointing to both corruption and fecklessnnes of the Democratic party. However, none of that disproves or argues against the necessity to respond to the obvious attempt by Trump et al. to reverse the 2020 election results. The events of 01/06 were only part of the attempt to change the results of the election.

    I share your disdain for the Democrats. But their wrongs don’t in any way justify the wrongs of Trump et al. Yes, the Democrats undermine the political process as do the Republicans as well as Trump. A pox on all their houses. These days all I can say is that there is no chance in hell that I would support any of them. They are all evil to a degree that relative evil is irrelevant.

    We are in the end game for the American constitutional experiment, which on occasion showed signs of living up to its vaunted intent. Outside of the exogenous forces at play (the CIA, MIC, oligopolists and monopolists of all stripes) we have been backed into this corner by the Dem’s always pulling the rug out from under their working class supporters from Carter onwards, and the Rep’s willingness to exploit the Dem’s fecklessness in an attempt to achieve electoral hegemony. That both act as they do in fealty to the exogenous forces and to the detriment of the electorate is probably beyond doubt. But we are now in an electoral trap in which the public will (such as it is) cannot be manifest.

    Unfortunately, your screeds against the Dems and constant resort to whataboutism makes you out to be an ardent Trumpist, which I find incomprehensible in this particular space. The whatabouts in both directions are legion. Most of us here get this.

    I, for one, am with Tony all the way. Although I can see no direct path to return to civic republicanism I believe that breaking through to some sense of virtuous participation is necessary although unlikely given the rot of our institutions. I knew the jig was up when Vince Lombardi was considered a genius for “Winning isn’t everything it is the only thing.” The American credo.

  12. Willy

    I say our clearest solution is to sever the ties between the plutocratic “winners” and our institutions. Maybe the way we define “leadership” needs to be revised. Somehow we cannot allow their trickle-down system of the nefarious lucrative to continue. We have to understand all the many ways in which plutocrats (heirs and cronies, not even creators many of them) will machinate to achieve their goal of conquering all the fertile economic ground before carelessly destroying it.

    I knew of Biden’s lability and accurately predicted that he’d listen to Bernie. I also accurately predicted that Trump would listen to Hyman Roth before having him killed, so to speak, after whacking Barzini, Philip Tattaglia, Moe Greene, Strachi, Cuneo… I had some idea that there’d be a lot of casualties with Trump. I had no idea that so many innocent bystanders could still be cheering on the Don as some kind of savior. I mean, WTF?!

    I’ve asked bruce many times what his solutions could possibly be. But I have yet to get back a serious response. Hopefully when this comment gets published we’ll have had a cogent response.

  13. bruce wilder

    @ hvd: “Unfortunately, your screeds against the Dems and constant resort to whataboutism makes you out to be an ardent Trumpist, which I find incomprehensible in this particular space.”

    I get that I am irritating — that’s by design and intent. I preach. I know that.

    But, I do not preach in favor of Trump. Trump succumbs too easily to flattery to be trustworthy in high office and naturally attracts conmen as a result. His hypomania makes him frequently a ridiculous figure.

    In this space, I argue for resisting the Democratic Party propaganda and in favor of trying to be realistic and generally more if not idealistic. As an alternative, I suppose I could argue against the Fox News line, if I knew what it was, but what would be the point? Does a tree falling in the forest make a sound if no one hears it?

    I think to be realistic is to be pessimistic. I don’t have a policy solution though I have some ideas about where a political movement, if one develops, might focus.

    I generally like Cornell West’s way of thinking, but discount any possibility of his having much influence. I like Marianne Williamson’s rhetorical insight even better, but I don’t like her chances. I am watching RFK, Jr, whose campaign seems to me to have unusually coherent and subtle messaging, seemingly designed by professionals to subvert the realignment that the apparatus of the mainstream media and the Democratic Party is resisting mightily. (The Republican Party establishment is resisting realignment, too.) We might be ready for a Caudillo, a strong man, but I cannot imagine Trump in that role, though maybe he’s been a rehearsal. RFK, Jr sounds like he fantasizes himself in that role — what he promises he will do with a flourish of his pen on inauguration day constitutes a long list. I don’t see a viable movement there yet or much awareness that one is needed. It may be that “the low quality of citizenship skills of residents of the United States” may be a bigger obstacle than he can conceive and still function. Vivek Ramaswamy is young and energetic, but he’s even more supremely arrogant about being a one-man revolution than RFK Jr. while seeming to me to be more clueless about how to bring about institutional reform.

    I don’t follow politics closely enough to know if any of the “outsider” candidates are attracting people capable of executing reforms at scale. Even a few key, thoughtful people can have a big impact. I am not sure how many political appointees a President makes — north of 4000 I would think. Biden’s appointment of Lina M Khan has been hopeful. Trump’s appointment of Robert Lighthizer was one of the few instances where he installed someone who knew how to operate the machinery of government.

    Longtime readers of comments will know I am fond of anacyclosis. The cyclical correction that should have happened in 2006-9 was frustrated by Obama. We are working through the unfortunate consequences of Obama’s many bad choices, not least of which is the reluctance of most people whose identity as Democrats is wrapped up in his brand to recognize that he did the wrong thing over and over again across many policy areas, with huge consequences for wealth distribution, systemic business and political corruption, global warming, and a brutal self-destructive foreign policy. Democrats lost their moral compass making excuses for Obama.

  14. StewartM

    Funny how one of the few times the American system may actually *work* (i.e., prosecute an obvious, blatant, criminal like Trump) we get hit with the false ‘both-siderisms’.

    Yes, the Dems (and mainstream Rs) are corrupt. They are *legally corrupt*, they aren’t prosecuted as they take advantage of loopholes in existing law and interpretation of law. But it is corruption nonetheless. Yet nobody has ever satisfactorily explained how you advance the cause of curing our system of this form legal corruption, when you refuse to punish the *illegal kind* that Trump engaged in.

    What are you going to do? Make the current legal corruption illegal? What good would that do, as you refuse to punish the obviously illegal actions of Trump?

  15. bruce wilder

    . . . nobody has ever satisfactorily explained how you advance the cause of curing our system of this form legal corruption, when you refuse to punish the *illegal kind* that Trump engaged in.

    Nothing about these prosecutions of Trump are designed to make clear this distinction you would make.

    Much too easily it turns on the definition of “insurrection” or the legitimacy of the Espionage Act or trying to making it illegal to criticize and challenge election processes. It looks like an exercise in raw power uncontrolled by any shared principle.

  16. NR

    Nothing about the prosecution of Trump is designed to “make it illegal to criticize and challenge election processes.” Trump did that through a variety of legal means and lost all his court cases. That’s not why he’s being charged.

    Really, read the actual indictment and not just social media posts about it. It makes this quite clear.

  17. Willy

    Anacyclosis seems to require a hitting bottom of some kind. The drunk smashing his car into his kid’s bedroom might finally want to check into rehab. Or the Roman citizen realizing that the barbarians he let sack his town might not have better ideas than his own emperors and he might finally want to check into moving out to the country.

    People need to be motivated to want to change shit. And the PTB people probably seemed more compelling to Obama than his voter people were.

    What’s the downside of attacking an obvious malignant nincompoop like Trump, to then have his own worshippers attack “the Biden crime family”? And then after a period of counterproductive back and forth retributions against ‘the other elites’, a guy from the back shouts out “Kill all the elites!” Would that cause better elites?

    Of course reality is a bit more complicated than that. But whining about the poor quality of “our” elites and the worse quality of “their” elites seems to be going nowhere. It seems the place will just wind up crawling with Lindsey Grahams doubling down on the pathetic and Feinsteins driving their Hoverounds in circles.

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