“Hey Journalists, Nobody Is Coming to Save Us.” So reads the headline of a recent opinion piece in Nieman Reports, a venerable publication affiliated with Harvard University that describes itself as “covering thought leadership in journalism.” 

Just within the past year, the article reports, major layoffs and buyouts have occurred in every type of media organization under every form of ownership and business model. Examples range from the billionaire Jeff Bezos’s Washington Post to nonprofits like The Texas Tribune; from public media outlets like New York Public Radio to scrappy, entrepreneurial, multimedia web publications like Buzzfeed News and Vox Media. Despite the many innovative attempts over the past quarter century to “save journalism,” seemingly the only news in the news business is that it continues to shrink away at an accelerating pace. On our current course, by the end of 2024 the country will have lost a third of its newspapers since 2005. In more than half of all U.S. counties, people either have no access to local news from any source or have to rely on a single surviving outlet, usually a weekly newspaper. 

So, what’s to be done? The Nieman Reports opinion piece advises journalists to adopt a four-part personal plan that includes developing more marketable skills, stepped-up networking, and staying abreast of industry trends like increasing reliance on charitable contributions and the use of artificial intelligence. 

But while that’s no doubt practical advice for anyone trying to build or hold on to a career in journalism, it’s also obtuse to the real nature of the problem and needlessly fatalistic. The decline of journalism—and the concomitant rise of a poisoned, “post-truth” information environment that deeply threatens democracy—is not a development that journalists, or society at large, must accept as inevitable. Contrary to received ideas, it’s not an unavoidable consequence of digital technology, generational change, or immutable market forces. 

Instead, it is a direct result of specific, boneheaded policy choices that politicians in both parties made over the past 40 years. By repealing or failing to enforce basic market rules that had long contained concentrated corporate power, policy makers enabled the emergence of a new kind of monopoly that engages in a broad range of deeply anticompetitive business practices. These include, most significantly, the cornering of advertising markets, which historically provided the primary means of financing journalism. This is the colossal policy failure that has effectively destroyed the economic foundations of a free press.

Fortunately, Joe Biden’s administration, along with other governments around the world, is already taking important steps to repair the damage. But perversely, the press itself barely covers the story while many reporters and editors, including some of the industry’s “thought leaders,” remain focused on individual actions or on small-bore reforms that are not remotely adequate to the problem. It’s time to wake up and join the big fight.

A key first step to understanding what’s gone wrong with the business of journalism is to focus on the largely forgotten history of the First Amendment. Most Americans learn in school that it prevents the government from abridging freedom of speech and of the press. Less well known is that until about 40 years ago, both the courts and public opinion viewed the amendment, and the spirit of the Constitution generally, as also requiring that government take positive steps to protect these freedoms from interference by monopolists.

This tradition in America’s political economy found early expression in the Postal Act of 1792. Reflecting the founding generation’s belief that a democratic republic required an informed citizenry, the law stated that the largest and most crucial communications network of the era had to treat all users equally by offering the same prices and terms of service to everyone. It was the same principle that in much later debates over the governance of the internet would be known as “net neutrality.”

Congress also importantly set rates for the mailing of printed material low enough to make the production and distribution of newspapers, pamphlets, and books economically viable. The result was a spectacular flourishing of media in early-19th-century America. As the sociologist Paul Starr has noted, “When the United States was neither a world power nor a primary center of scientific discovery, it was already a leader in communications,” thanks to public investment in a universally accessible postal system and the innovations of its flourishing free press.

Americans once again deployed extensive government interventions after monopolists gained control of a new communications network that had become essential to journalism by the mid-19th century. The dominant telegraph company of the day, Western Union, which fell under the control of the financier Jay Gould, and the dominant newswire provider, the Associated Press, became so intertwined that they were called “a double-headed monopoly.” Both colluded to force independent newspapers into signing exclusive contracts, so if a paper chose not to use Western Union for telegraph services, it was denied access to the Associated Press for newswire services, and vice versa. 

To reverse such concentrations of control over the information environment, Americans took myriad measures. As with the U.S. Postal Service, they enacted regulations that required, for example, that telegraph and telephone companies operate as utilities providing every user, or class of users, with the same prices and terms of service. Similarly, while granted an exemption from liability for the messages people sent over their wires, telecommunications companies were not allowed to pick and choose who got to send or receive what content. Americans also used antitrust enforcement and utility regulations to prohibit such companies from vertically integrating into adjacent lines of businesses, such as advertising and publishing. Finally, by the end of the 19th century, privacy laws in every state prohibited them from disclosing or otherwise misusing the personal data generated by their users. 

These measures in combination prevented telecommunications companies from adopting the surveillance advertising business model used today by Google, Facebook, and other digital platforms. While phone companies were allowed to offset their costs by selling advertising in the “yellow pages,” they were not allowed to wiretap their own customers and use what they learned to target third-party ads, as Google and Facebook do today. Such an abuse of privacy and monopoly power to manipulate and exploit customers was simply unthinkable. 

With the introduction of radio and later television, Americans again used regulation, along with aggressive antitrust and other competition policies, to ensure that these technologies did not lead to an information environment dominated by corporate monopolies. In 1934, Congress created the Federal Communications Commission and gave it expansive authority to enforce anti-monopoly principles in broadcast markets. In the early 1940s, the FCC used these powers to force NBC to divest itself of one of its two dominant radio networks, now known as ABC, thereby preventing NBC from monopolizing the radio industry. The government also applied the same principle by forcing the Big Eight Hollywood studios of the era to divest itself of movie theater chains.

The FCC similarly put a check on monopoly by preventing the cross-ownership of radio, television, and newspaper companies. In 1970, the FCC went further by enacting its “Fin-Syn” and Prime Time Access rules. These were aimed at preventing the three dominant networks (ABC, CBS, and NBC) from monopolizing the production of television programming, including by limiting the number of hours they could broadcast their own content in prime time. The rule change led to what many have described as a golden age of television, as independent television production companies gained the ability to bring groundbreaking programming like The Mary Tyler Moore Show and Norman Lear’s All in the Family to market. 

Consistent with the view that the public had a First Amendment right to a free flow of ideas, the FCC also took special measures to ensure that broadcast license holders, whose numbers were necessarily limited in any one location, did not suppress or monopolize the news and public affairs programming going out over public airwaves. Thus, in 1949, the FCC instituted the Fairness Doctrine, which promoted viewpoint diversity by requiring that television broadcasters “affirmatively endeavor to make … facilities available for the expression of contrasting viewpoints held by responsible elements with respect to the controversial issues presented.” The Fairness Doctrine created an environment in the image of the Founders’ positivist view of the First Amendment by placing the need for a well-informed citizenry over the desire of broadcasters to use programming solely to benefit their own private interests. 

With little controversy, the Supreme Court applied a variation of this principle to print journalism as well. In a 1945 antitrust case challenging the monopoly power of the Associated Press wire service over individual newspapers, Justice Hugo Black gave a succinct summation of how the Court viewed the relationship between monopoly and free speech. “Freedom to publish is guaranteed by the Constitution,” Black wrote, “but freedom to combine to keep others from publishing is not.” 

The FCC later extended the same principle to cable TV, ruling in 1972, for example, that cable companies must maintain facilities for production of local programming and make these facilities available to the public on a nondiscriminatory basis. As late as 1994, the Court reaffirmed principles of neutrality and viewpoint diversity when it upheld a law requiring cable companies to carry content from broadcast stations. Writing for the majority, Justice Anthony Kennedy stated that people, not corporations, should decide what they watch, noting, “At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal.” 

Even well into the digital era, public policy continued to guard strongly against the monopolization of media and communications markets. Examples include the 2000 antitrust decision that prevented Microsoft from leveraging its dominant Windows operating system into monopolization of the internet browser market—a ruling that opened opportunities for new companies, including Google and Facebook, to develop application-based services for the emerging World Wide Web. 

The extensive use of government to manage competition in media and communications markets was foundational to the growth of a sustainable free press in America. But so was another, closely related, and too often underappreciated factor: the flourishing of open, competitive advertising markets, structured by government policy, that served as the primary means of financing journalism. 

Advertising-supported journalism has obvious downsides. Particularly at smaller media outlets lacking a broad advertising base, individual marketers can gain undue influence over reporters and editors. But broad reliance on advertising to finance journalism proved to have two overwhelming advantages. First, it enabled a critical core of publishers and broadcasters to avoid becoming financially dependent on public funds controlled by the politicians and other policy makers they covered. Second, it enabled them to produce high-quality, civic-minded journalism at a price that ordinary people were willing and able to pay. Much as is often said about democracy itself, advertising-supported journalism might be the worst way to finance a free press except for all the rest.

The importance of advertising to the development of journalism in America is hard to overstate. In the 18th century, Benjamin Franklin supported the news stories in his Pennsylvania Gazette by devoting 45 percent of its pages to advertising. In the late 19th century, newspapers like The New York Times and Joseph Pulitzer’s St. Louis Post-Dispatch relied on ad-driven business models to set their prices low enough to reach mass audiences while also having the revenue to expand their coverage of city halls, statehouses, and foreign capitals. Advertising dollars also supported a rich diversity of crusading smaller journals, including the abolitionist William Lloyd Garrison’s The Liberator and Frederick Douglass’s crusading Black civil rights newspaper, The North Star. 

In the Progressive Era, advertising underwrote the “muckraking” journalism that helped to uncover the abuses of corporate monopolies like Standard Oil and corrupt political machines like Tammany Hall. To finance the work of pioneering investigative journalists like Ida Tarbell and Lincoln Steffens, the publisher of McClure’s Magazine sold ad space to corporations hawking, among other products, the Royal Tourist, a luxury automobile described as “The Pink of Perfection.” Corporate advertising financed exposés of corporate abuses. 

Similarly, in the 20th century, advertising remained the lifeblood of serious journalism, funding media outlets ranging from Time magazine and 60 Minutes to myriad smaller publications focused on advocacy for social justice causes, including titles like Jet, Mother Jones, Mother Earth News, Ms., and The Advocate. Meanwhile, business-to-business advertising supported flourishing trade publications with titles like Aviation Week, Multi-Housing News, and Defense Contract Litigation Reporter that played an important role in the information ecosystem of the era by reporting on often obscure but critical corners of the country’s political economy.

Supporting a broad advertising base for publications of all kinds during this era was rigorous, economy-wide enforcement of anti-monopoly laws. Into the 1980s, antitrust enforcement continually constrained mergers among local banks and other financial institutions, as well as among local supermarkets and other retailers, thereby preventing the number of advertisers supporting local newspapers and broadcasters from shrinking. The 1936 Robinson-Patman Act, which checked abusive business practices by chain stores and thereby limited their spread, is another important example of how U.S. competition policies—for as long as they were still enforced—helped to ensure a diverse, locally owned retail sector and, by extension, diverse, locally owned journalism.

Even into the early internet age, advertising continued to play an important role in sustaining journalism, including local and niche publications. During the aughts, small legacy publications like this one, as well as many local newspapers, were able to rejuvenate their finances through banner ads published on their websites. These, importantly, included ads targeted to individual readers. Marketers placed such ads on small publications’ sites through a Google-controlled digital ad exchange based on Google’s knowledge of the reader’s web history and personal interests. 

Such targeted digital advertising also financed new independent voices, including Joshua Micah Marshall at Talking Points Memo and Ana Marie Cox, founder of the political blog Wonkette. It also enabled a wave of new digital publications including Gawker in 2002, Pajamas Media in 2004, and the Huffington Post in 2005. 

While other digital products like video games and social media feeds increasingly competed for consumers’ time and attention, the demand for journalism of all kinds remained strong, and with the help of digital advertising the business model for it in many ways became stronger during the early days of the internet. Yet these benefits were eventually overwhelmed by the long-building negative effects of dramatic changes in public policy that were little noticed at the time but would become the root cause of today’s crisis of journalism. 

The first of these was a sea change in antitrust enforcement that began during the Reagan administration. New prosecutorial guidelines adopted in 1982 and 1984 gave the green light to virtually all mergers and acquisitions except in cases that involved provable collusion or conclusive evidence that a merger would lead to higher consumer prices. This change in policy, combined with ongoing financial-sector deregulation, led to a rapid wave of mergers and acquisitions and to a dramatic increase in corporate concentration, including among media properties. 

At roughly the same time, self-styled market conservatives also began to target the specific regulatory regimes that Americans had long used to structure media and communications markets specifically. Under Ronald Reagan, the FCC, for example, began dismantling many of its long-standing prohibitions on cross-ownership of radio, television, and newspaper properties, while also lifting limits on the number of broadcast stations a single person or corporation could own. 

Then, in 1987, the FCC repealed the Fairness Doctrine. Within a year, an obscure radio personality named Rush Limbaugh began broadcasting the unbalanced, hyper-partisan programming that launched nationally syndicated conservative talk radio. In combination with relaxed antitrust enforcement, these and similar measures led not only to the decline of diverse, locally owned media outlets committed to balanced local journalism, but also to their replacement by giant national chains dedicated to “talking head” opinion journalism, such as NewsCorp’s Fox News and the Sinclair Broadcast Group.

The movement to overturn the traditional public systems for governing media and communications markets continued under President Bill Clinton, most notably with passage of the 1996 Telecommunications Act. This legislation repealed, for example, the FCC’s ban on cross-ownership of telephone and cable television companies. As these and other changes to the policy map erased the legal boundary lines that had historically kept the different layers of the information supply chain structurally separated, media moguls were able to forge vast, vertically integrated monopolies with names like News Corporation (now NewsCorp), Viacom, and Comcast, that combined ownership of broadcast, cable, and internet service provider infrastructure with ownership of television and radio stations, movie studios, and other entertainment enterprises. 

That same year, Congress passed the Communications Decency Act. Its stated purpose was to crack down on internet porn and encourage the responsible growth of the era’s internet chat rooms and electronic bulletin boards. But the bill contained a 26-word passage known as Section 230 that, in combination with other policy failures, would create huge, unintended consequences. 

The CDA created a unique combination of powers and privileges for entities it loosely defined as providers of “interactive computer services.” As with telegraph and telephone companies, these entities were granted an exemption from libel law, which meant that they could not be sued or prosecuted when third-party users transmitted false or illegal information across their networks. But unlike with telegraph and telephone companies, providers of these new “interactive computer services” gained the power to discriminate among their users, including by censoring the speech of some and elevating the speech of others.  

Soon, and fatefully, the courts ruled that Section 230 applied not just to chat rooms and electronic bulletin boards but also to fast-growing social media platforms like Google and Facebook. This enormously amplified the already fast-growing monopolistic powers enjoyed by the owners of these platforms. 

Thus a handful of men like Google’s Larry Page and Sergey Brin, and Facebook’s Mark Zuckerberg, gained control over what was becoming an essential communications infrastructure upon which millions of individuals and companies depended for their livelihoods. This included newspapers and other media outlets, which increasingly needed these platforms to reach their readers, viewers, and, as we’ll see, even their advertisers. 

Yet unlike with the owners of those essential networks, the owners of these platforms faced no constraints in their ability to control what messages their users got to send or receive. Nor were they prohibited, like traditional regulated utilities, from leveraging their monopoly power into other lines of business, most notably including news distribution and advertising. Nor were they prevented from surveilling their users’ personal data and monetizing it in any way they wished, including by allowing marketers and even foreign governments to use their networks to manipulate individual users and classes of users. 

Because of these policy failures, today’s dominant digital platform monopolies threaten a free press in many ways. The most crucial and straightforward of these is through a massive theft of the advertising dollars needed to finance independent journalism. 

People still consume huge amounts of journalism every day even if they are now more likely to view it through their smartphone or tablet. And advertisers are willing to pay huge sums of money to reach these consumers, in no small measure because they tend to have higher-than-average discretionary income. But much of that ad money no longer flows back to the people who produce the journalism, even when the ads appear on their own digital publications. Rather, it flows largely into the vaults of Google, Facebook, and other platforms, increasingly including Amazon, which have inserted themselves as self-dealing middlemen in digital advertising markets. 

Starting nearly 20 years ago, through a series of acquisitions that would have been blocked by regulators but for the lax antitrust enforcement standards that prevailed at the time, Google managed to gain control of key digital advertising marketplaces on which publications and marketers find each other. A study by the UK’s Competition and Markets Authority found that by 2020, Google controlled a dominant position—as high as 90 percent—in every layer of the so-called ad tech auction market, in which British publishers sell digital ad space and marketers buy it. According to an antitrust suit filed by the U.S. Department of Justice and eight state attorneys general that is likely to come to trial this spring, Google built and maintains this monopoly in the United States as well through a broad range of anticompetitive, illegal practices. These include acquiring competitors for the purpose of suppressing competition, as well as distorting and manipulating the auction process for its own benefit. 

What’s the harm? Start with advertisers. Google’s private ad tech markets operate in near-total, unregulated darkness. As a result, advertisers cannot know for sure where, how often, or sometimes even if their ads are seen. Recently, the research firm Adalytics charged that Google had cheated advertisers out of potentially billions of dollars by placing their ads in obscure, dubious corners of the internet when they thought they were buying space in popular, high-quality websites and apps. 

Then there are the harms to journalism. Google uses its monopoly control of ad tech markets to skim off an enormous fraction of the money advertisers spend when they place ads on independent websites and other digital media. By its own admission, Google siphons off an average of more than 30 cents in fees out of every dollar flowing between advertisers and publishers through its ad tech exchanges. In 2022, Google raked in at least $32 billion from ads placed on third-party websites. This is money that could and should be going to help support publishers and journalists; it is their skill and effort, after all, that attract the readers and viewers advertisers want to reach. Instead, all the money just goes straight into Google’s coffers, thanks to its control of ad tech markets. 

There’s more. Before Google, if a marketer wanted to reach a person who read The New Yorker, for example, it had to take out an ad in that magazine. But now this is no longer necessary. Thanks to the failure to apply the same privacy laws and other regulations to digital platform monopolies that long applied to owners of other essential communications infrastructure, Google can use its users’ personal data in ways that allow a marketer to serve ads to a New Yorker subscriber on cheaper sites that Google knows the subscriber also visits. This includes sites that Google itself owns, such as YouTube, for example, or the Google Search and Google Maps apps. In this way, the marketer avoids having to help pay for the expensive quality journalism that attracts The New Yorker’s audience, while the platforms capture the lion’s share of every one of these ad dollars. 

Compounding the loss to journalists is the theft of their intellectual property. The owners of platform monopolies attract eyeballs to their own properties in no small measure by offering users a way to access journalism and other editorial content produced by others, such as an article produced by a local newspaper that appears in a Facebook newsfeed or that is summarized in a Google search result. But rather than pay the fair market value of this content, the platforms consistently abuse their market power to coerce news organizations into accepting far less. 

A recent study by the Brattle Group and academic researchers estimates the magnitude of the theft. The researchers started by looking at the amount of revenue Google takes in when it sells ads on its own properties that appear next to news content. They then compared this number to the amount that Google pays news organizations for this content. The study concludes that Google coerces news organizations into accepting some $10 billion to $12 billion less each year for the use of their content than the fair market price Google would have to pay if it didn’t have monopoly power over journalists and publishers. Meanwhile, Meta, the owner of Facebook, Instagram, and many other properties, annually uses its monopoly power to purloin content worth some $1.9 billion, according to the study. 

But even this accounting doesn’t get the full measure of the theft. Together, Meta and Google properties soak up an estimated 50 percent of the $200 billion–plus U.S. digital ad market. Yet according to suits brought by the Justice Department, the FTC, and other regulators, much of the market dominance derives from illegal, anticompetitive business practices. Indeed, had regulators and the courts enforced the kind of structural separations and privacy laws that, as we’ve seen, the United States historically applied to the owners of essential communications infrastructure, these platforms would not even be allowed to be in the advertising business, let alone be allowed to monopolize the business of selling targeted ads based on surveillance of people’s personal data. 

But because of that monopoly power, today’s media organizations have no choice but to go along with whatever terms the big platforms dictate. Nor, given their increasingly abject dependence on the platforms for reader and viewer traffic as well as website hosting, can media organizations complain about such abuses without potentially paying a fatal price. In 2018, Wired ran a cover story critical of Facebook, noting, “Every publisher knows that, at best, they are sharecroppers on Facebook’s massive industrial farm.” The number of readers following links from Facebook to Wired suddenly dropped 90 percent.  

These days, even a platform like the Apple News app, which allows consumers to access a broad range of publications for a low monthly price, can create deep dependencies among newspaper and magazine publishers and the journalists who work for them. Participating in Apple’s News Partner Program can bring publications new readers and advertisers. But Apple pays nothing for the journalism on its app while taking a 30 percent cut of the revenue generated by its selling ad space next to this content. Meanwhile, participating publishers must pay Apple News an additional 15 percent commission when consumers subscribe through the app rather than directly, which more and more do. If publishers don’t agree to participate in the News Partner Program, then Apple takes 30 percent of any subscription revenue they raise when people purchase subscriptions through the Apple App Store. 

Then there is the question of what will happen when a publication dependent on Apple News publishes something that negatively affects Apple’s far-flung corporate interests. A hint came last October after the talk-show host and social critic Jon Stewart told Apple executives that he planned to air programming critical of China’s government on his Apple TV show during the next season. Apple, which takes in a fifth of its sales from China while also relying on China almost exclusively for manufacturing its smartphones and computers, canceled his show. 

What’s the solution? Recently, much of the media world has been abuzz about a long-awaited philanthropic initiative called Press Forward. The project is a coalition of 22 major charitable organizations concerned about the future of democracy that came together and collectively pledged this past September to donate $100 million a year for five years to local newsrooms. But while the size of the pledge is unprecedented and desperately needed, it’s nowhere near enough. The Pro Publica founding general partner Richard J. Tofel estimates that $100 million is perhaps 10 percent of the total money needed just to keep small local publications healthy in light of their on-going losses in revenue. 

Another coalition, Rebuild Local News, advocates for an innovative set of policies that would support local journalism with tax subsidies. It is specifically asking Congress to provide a $250 refundable tax credit for Americans who buy subscriptions to local news outlets and a $2,500 to $5,000 tax credit for businesses that advertise in local media. The coalition also calls for a government-subsidized “super-sized Newsmatch” fund that would provide at least a three-to-one match for charitable contributions to local news organizations. 

Even if this plan came to pass, however, its advocates estimate that it would raise no more than $3 billion to $5 billion for local journalism. That would be a godsend to many local publications that have lost financial viability, including the many in danger of being devoured by vulture capital funds intent on stripping out their last remaining assets. But it is nowhere near what’s needed to restore a healthy, sustainable, diverse, and independent press when each year Google, Facebook, and other platforms are using anticompetitive and often illegal business practices to rob ad revenue and editorial content worth many tens of billions. 

Getting to the root cause of journalism’s crisis is not complicated, even if it requires us all to raise our sights and see the broader pattern. Simply put, it requires returning to the same basic anti-monopoly principles that Americans used during previous revolutions in communications technology to preserve our First Amendment rights to speak, and to hear the speech of others. 

One of those principles is strict, structural separations between the different levels of the information supply chain. Thus, enforcers should use traditional antitrust laws to keep all owners of essential infrastructure, including Google, Amazon, Facebook, and other digital platforms, out of adjacent lines of business. This should include control of businesses that are horizontally adjacent, such as when Facebook purchased the rival social media platform Instagram. And it should include control of businesses that are vertically adjacent, such as Google’s takeover of the ad tech firm DoubleClick or its big acquisitions of companies engaged in cloud computing and artificial intelligence, which radically amplify its monopoly power. 

Fortunately, enforcers in the United States and around much of the world are already taking important first steps along these lines. As previously mentioned, the Justice Department is suing Google to break up its control of digital ad tech exchanges. It is also pursuing another suit, likely to be decided soon, that charges Google with unlawfully maintaining monopolies through anticompetitive and exclusionary practices in the search advertising market. Though not always successful, under Biden, antitrust enforcers are winning many tough cases, not least because they are asking for a return to the original intent of antitrust law—a position that resonates with many conservative jurists committed to “strict construction.” (See “Winning the Anti-Monopoly Game,” in the November/December 2023 issue of this magazine.) Similar antitrust suits against the platform monopolies have also been filed by the European Commission, the UK’s Competition and Markets Authority, and regulators in Germany, Korea, India, and elsewhere. 

Law enforcers should also make clear that the unprecedented combination of powers and privileges created by Section 230 applies only to small chat rooms and bulletin boards, not to providers of essential communications infrastructure. The simplest and most straightforward way to move toward these goals would be for the FTC, the FCC, or both to assert their full authority to regulate the terms of service and pricing behaviors of platform monopolists. This is essentially what the FCC did in 2015 with the Open Internet Order, which enforced net neutrality on internet service providers, but in that case it applied the principle to physical, as opposed to virtual, infrastructure. Furthermore, the FTC could stop many of the abuses in digital advertising markets, including those regarding users’ personal privacy, just by evoking its broad authority, under Section 5 of its enabling legislation, to restrict unfair methods of competition.

None of these policies taken by themselves is sufficient to fix our broken information environment. But in combination, they can significantly address the central threats to freedom of speech and of the press. To ensure that policy makers have the political cover they need to take on today’s unprecedented concentrations of corporate power over what we can say and hear, journalists have to understand, and help the public to understand, what the real stakes are.

The post How Fighting Monopoly Can Save Journalism appeared first on Washington Monthly.

James Fallows

Charles Peters, born in Charleston, West Virginia, just before Christmas in 1926, died at his home in Washington, D.C., on Thanksgiving Day. He was 96.

Charlie, as he was universally known, had been in declining physical health for several years. His mind, wit, encyclopedic recall, passion, curiosity, and sense of humor were undiminished until his last days in the same modest house in Washington where he and his beloved wife, Beth, had lived since coming to the city in 1961 as part of John F. Kennedy’s new administration. They had jointly determined that, if possible, Charlie would remain at home in familiar settings until the end. Thanks to Beth’s strength, constant presence, and hospice support, he could do so. 

You’ll hear in this space and on our website, washingtonmonthly.com, from many people who have learned from, worked for, or in other ways been shaped by Charlie’s enormous presence in our field. Most of them will have laughed with Charlie and argued with him—perhaps both at the same time. They will have loved him and been exasperated by him, marveled at his insights and resented his quirky or imperious demands, rolled their eyes during his animated editorial guidance pep talks known as “rain dances,” but then been motivated or chastened by what he said. All of them have become more aware with the passing years of how deeply grateful they are to have been part of his world.

Few could dispute that Charlie Peters has mattered. His presence in the Hall of Fame of the American Society of Magazine Editors is only the most obvious indicator. It is more important to realize that he matters and that his ideas and example can play an ongoing, indispensable role in responding to our country’s deepest problems.

Charlie Peters matters in the example he has given us for journalism: for reporting that is hardheaded but not hard-hearted; that rides on stories but is anchored in data and fact; that calls out the evil and failures in people and institutions but also recognizes their possibility for good.

He matters in the ideals he has set for his country: that it should be patriotic but not jingoistic; that it can respect the military without being pro-war; that it can celebrate ambition and entrepreneurship without forgetting those left behind; that it should be skeptical of government failures precisely because effective government is so crucial to America’s success.

He matters as a person: showing that one can be flawed but triumphant; that awareness of one’s flaws can be the greatest strength, and that an open mind and a ready laugh are gifts to all. He fully enjoyed life’s pleasures, including, for many decades, season tickets to what was then a good local NFL team. 

We will miss Charlie tremendously even while his example remains with us.  

James Fallows is the author of 12 books and writes Breaking the News on Substack.  

Jonathan Alter

There is so much to say about Charlie’s impact on journalism, but I’d like to tell a more personal story. 

That summer, I was eager—even desperate—to meet the man, but it was not to be. The year was 1978, and I was a ridiculously overprivileged kid, then working as an intern in the White House. I had shaken President Jimmy Carter’s hand on the South Lawn. Thanks to being a member of the Lucky Sperm Club, I had also met Martin Luther King—and, as an eight-year-old, had seen the Beatles play in Chicago’s Comiskey Park.

While I was hardly blasé, none of these legends were central to who I wanted to be. But the idea of possibly meeting Charlie Peters, already a deity in my little world of aspiring political journalists—now that would be thrilling.

My boss that summer was Jim Fallows, Carter’s chief speechwriter. Jim was a Charlie protégé, as was another journalist I revered, Nick Lemann, who had been the top editor of The Harvard Crimson when I was a freshman. Nick, amid his tenure as an editor, suggested I come to the Monthly’s ramshackle offices, and maybe I could meet Charlie. Maybe.

Charlie was around 50 then, and, as in so much else, decades ahead of his time in his decision to work almost exclusively from home, a tiny house on V Street NW—twice borrowed against to keep the magazine afloat.

The only time Charlie ventured out of the house was to drive his aging Oldsmobile sedan downtown for a wine-soaked lunch, which he used as a way of charming everyone from obscure Pentagon whistleblowers to Katharine Graham.

Charlie would usually stop by the office for 10 or 15 minutes. Nick figured I might catch him, and I almost did. But the moment I arrived, Charlie was scurrying out, a smiling West Virginia butterball, maybe five foot six, with deep-set raccoon eyes (like mine!), and better things to do than talk to Nick’s friend.

When I moved to Washington after graduation, with a couple of New Republic pieces under my belt, I applied for a job at the Monthly. No dice. I wrote a short article, which one of Charlie’s talented editors, Gregg Easterbrook, rewrote, and with good reason. I was finally granted an interview with the great man. To my horror, it lasted four minutes and consisted mostly of Charlie asking me if I got along with my father. I later learned that he believed anyone who didn’t would never get along with him and should not be hired. It turned out I gave the right answer, which also had the advantage of being true.

I was hired in 1981 with the understanding that I would put in 16-hour days doing everything from writing cover stories to taking out the garbage—then move on to a real job (in my case, at Newsweek).

Charlie’s intensity and (usually) endearing eccentricities lent a slightly comic dimension to what we called “the gospel”—the coherent collection of ideas that undergirded the magazine. “Rain dances”—when Charlie would jump up and down and tell you what was wrong with your article, you, the country, and the world—lasted longer and, though he did no line editing, always led to a much better draft. Rain dances were not conversations. Those would come later. This was especially true of the last time we spoke, earlier this year, as he sat in his basement, aided by an oxygen machine and the glow of an artificial Christmas tree that—his own person to the end—he kept lit all year long. We talked about his road trips with JFK in West Virginia in 1960, the Biden presidency, and mutual friends, but mostly just basked in our warm feelings for each other. I had loved a Beatle and, like others in our extended alumni family, had come to believe a Beatle loved me, and my life was the richer for it. 

Jonathan Alter, an author, historian, and filmmaker, is the publisher of the Substack Old Goats with Jonathan Alter. His most recent book is His Very Best: Jimmy Carter, a Life. 

Gregg Easterbrook

One of the important figures of the past half century of Washington politics and journalism, Charlie Peters’s founding insight was that much of Washington news is self-serving make-believe. Today, everyone believes that; when Charlie began saying it, it was heresy. He further said, back when liberalism considered “private enterprise” a swear phrase, that government should set the goals, but market forces should make the choices about how to realize them.

And Charlie had no journalism training. He’d gone to law school.

Peters loved the United States and argued against the fashionable anti-Americanism of the Ivy League and Manhattan media. Sadly, he got no purchase at all with this.

You might hear about his unorthodox business strategies, such as “paying” a bill by deliberately sending an unsigned check. The vendor had to mail the check back for signature. That bought Charlie another month to seek investors.

When the history of this period is written, Peters will be ranked as equal in importance to the literary editors Harold Ross, William Whitworth, Philip Rahv, Arnold Gingrich, and William Shawn.

Before Peters, literary nonfiction was too Ivory Tower. Charlie insisted that every article enfold the “Big Three”—reporting, thinking, and writing. And though he relentlessly mocked snobs, Charlie had a nose for elegant writing, discovering James Fallows, Michelle Cottle, David Ignatius, Kate Boo, Matt Cooper, Jon Meacham, James Bennet, Joe Nocera, Walter Shapiro, Josh Green, Amy Sullivan, and numerous others. Me too! Charlie taught all of us that style need not be boring.

Two favorite Charlie anecdotes:

First. I was a young man in Chicago working for a trade magazine about toxic waste. The very best trade magazine about toxic waste! And I was a die-hard Monthly reader.

I wrote a freelance article for Charlie, and it made the cover. I knew Peters had a track record of gambling on unknowns. I called him up and told him that if he’d hire me, I would give up my glamorous toxic waste lifestyle and work for him.

Charlie said, “I don’t have the budget to pay your moving expenses. If you lived in Washington, I’d hire you in a heartbeat.”

So I quit my job, drove to Washington, found a Hill staffer looking for a roommate, and a few days later sat on the Monthly’s office steps waiting for Charlie to come into work.

“I’m here,” I said.

In 40 years of knowing him, it was the only time I saw Charlie speechless.

Second. After I had been a Monthly editor for a few months, he invited me to lunch at a Middle Eastern place off Dupont Circle. The host asked what drink he should bring to the table. “Two dry gin martinis, a half carafe of rosé, and a Heineken,” Charlie said. Then he turned to me and asked, “And would you like something to drink?”

In Psalms, we read, “The upright shall behold the face of God.” I wonder if the Maker will be able to win arguments with Charlie. 

Gregg Easterbrook has published three novels and nine nonfiction books. (This article originally appeared in his Substack, All Predictions Wrong.)

Nicholas Thompson

The first time I met Charlie Peters was in 1999: I was 24, he was 72, and I was a candidate to be an editor at the Monthly. I trudged up the stairs of 1611 Connecticut Avenue to a well-worn office filled with old magazines and crossed by the occasional cockroach. “What is your relationship like with your father?” he asked.

“Well,” I responded, “my father drinks way too much, but we get along great.” I didn’t realize it at the time, but the interview essentially ended right there. I was hired.

I lived with my father, sometimes slept on the office floor, and learned from Charlie new ways of saving money. We borrowed internet from the office downstairs when I routed an ethernet wire up the fire escape. In return for all these sacrifices, I got to edit and write stories that people with power read.

Charlie wasn’t easy. The second story I filed was about the gambling industry in Georgia. I handed it in, and the next day, when the phone rang, I picked it up and heard Charlie’s familiar West Virginia drawl. There was no greeting. Just a rhetorical question: “Why would someone give me a story like this? Because they’re an asshole. A fucking asshole.” Then he hung up.

The next day, I apologized and asked for clarification on what I had done wrong. The problem, he explained, was that I had written it like “a pompous dickhead.” I didn’t get much guidance beyond that. I then took the draft to Robert Worth, a Monthly editor at the time, who laughed and helped me fix the work. 

There are different ways mentors can help you improve, just as there are different ways parents can help their children. One can be tough; one can be inscrutable; one can be kind; one can offer detailed instructions and guidance. There’s no one right approach. Now that I’ve had children and thought more about it, I’ve decided that there’s one variable that matters most: the parent, or mentor, must have genuine care or even love. And this is what made Charlie’s method work. I knew he hated the gambling story. He screamed at me more than a few times in the years to come. But I never doubted that he cared and that he wanted the best for me as well as the magazine. He cared intensely about the country; the magazine was the tool he had to help; and his young editors had to shoulder the burden of getting the darn thing out. So, I kept going, kept working, and kept trying to improve. After two years, I was unquestionably a better journalist than when I began.

Last year, I made my final visit to his house, the same one out in Georgetown that he had moved into in 1961. I went down to the basement where Charlie sat, covered mostly in a blanket; he was 95 years old, and didn’t have much time left. We talked about our years together and his hopes for The Atlantic. When I left, he said something that men don’t really ever say to each other: “I love you.” I should say it here that I loved him, too. 

Nicholas Thompson, the CEO of The Atlantic, is the former editor in chief of Wired.

Steven Waldman

The part of Charlie’s vision that touched me most was his injunction against letting our writing be warped by our prior convictions or wanting to win approval (even unconsciously) from our own social group. When I was a young editor at the magazine in 1986–87, he taught that we should be willing to “say good things about the bad guys, and bad things about the good guys.” Today, our entire media system—both the ratings-driven and the algorithm-driven media—penalizes that kind of heterodox thinking. But decades of Monthly editors and writers tried to carry that intellectual honesty—relentlessly challenging one’s priors—onto the mainstream media outlets we moved to in our careers. 

I certainly tried to as a correspondent for Newsweek, then as cofounder of Beliefnet (a multifaith religion site), Report for America (a national service nonprofit that places and supports reporters in local newsrooms), and Rebuild Local News (which advocates public policies to save local news).

But one of the most admirable aspects of Charlie’s legacy is not what happened while he was editor but what has happened since. A great measure of an entrepreneur’s success is whether their creation lives on and even evolves into something better. 

When Paul Glastris took over the magazine in 2001, the spirit of idealism and great reporting persisted, but the nature of its impact changed. Under Charlie, the Monthly’s most significant influence was arguably on journalism itself—on how the press covers Washington. Under Paul, its most profound impact has been on public policy. 

For instance, fighting monopolies is now a central plank of the Biden administration’s economic agenda. That’s a direct result of muckraking anti-monopoly stories the Monthly started publishing more than a dozen years ago—some of which were written by Lina Khan, now chair of the FTC and Joe Biden’s most prominent antitrust enforcer. The Monthly’s innovative college rankings spurred the federal government, first under Barack Obama and now under Biden, to crack down on predatory for-profit colleges and to publish data on how much students at specific colleges earn after they graduate. 

The modern Monthly has also continued to train young reporters with a fervor for original thinking and honest analysis. The prominent journalists who have worked at or written for the Monthly under Paul include Nicholas Confessore, a Pulitzer Prize–winning journalist at The New York Times, and Haley Sweetland Edwards, an author and former deputy Washington bureau chief of Time who’s now back at the Monthly. Even the interns have gone on to do astonishing work (witness Ezra Klein, cofounder of Vox Media and now columnist and podcaster for the Times).

The Monthly had an amazing 32 years under Charlie Peters. It’s been just as remarkable for the past 22 years under Paul Glastris.

Steven Waldman is chair of the Rebuild Local News Coalition and cofounder of Report for America. 

The post Charles Peters, 1926–2023 appeared first on Washington Monthly.

Until now, the highest-level criminal trial in American history was the case of former Vice President Aaron Burr, who was acquitted of treason in 1807.

But the Burr trial—and all of the tabloid-fodder murder trials of the last two centuries—shrink into insignificance next to United States of America v. Donald J. Trump, the weightiest criminal case brought against the former president, the first (barring unforeseen circumstances) to be tried, and the most monumental test for the rule of law and the U.S. Constitution since, well, ever.

With the trial scheduled to begin on March 4 in Judge Tanya Chutkan’s no-nonsense courtroom (if appeals do not delay it), let’s set the table for what to expect from a world-historic moment of democratic accountability—in a case that, if the judge has her way, will unfold shortly before the most pivotal presidential election for the future of the country since Abraham Lincoln squared off against George B. McClellan in 1864.

For all of its significance, the case may not be sensational; many of the details will be familiar to those who paid close attention to the January 6 Committee hearings in the House. But the battle between Special Counsel Jack Smith and Donald Trump’s lead defense attorney, John Lauro, could prove epic, even if it isn’t on TV.

Smith, appointed by Attorney General Merrick Garland to investigate Trump, is a hard-charging career prosecutor who spent five years probing politicians as head of the Public Integrity Section of the Justice Department. He was best known for successfully prosecuting former Virginia Governor Robert McDonnell (though McDonnell’s conviction on corruption charges was overturned). After leaving the Justice Department, Smith joined the Hague as chief prosecutor, litigating war crimes in Kosovo.

Lauro is a resourceful white-collar criminal defense attorney with extensive experience in fraud cases. Beyond Georgetown Law School, he’s a proud graduate of the Gerry Spence Trial Lawyers College—yes, there is such a place—where the institution built by Spence, a flamboyant criminal defense attorney, taught Lauro what the school calls “a deeper understanding of human behavior and the mastery of universal storytelling.”

Before the storytelling on both sides begins, the rest of us should decide on the title of the case. Think the Scopes Trial or the Trial of the Chicago Seven or the O. J. Simpson Trial. At first glance, U.S. v. Trump is appropriate, but it turns out the Mar-a-Lago documents case is often shortened to United States v. Donald J. Trump (the full name is United States v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira). Lauro calls the D.C. proceedings the “J6 case,” but that’s too narrow, given that the former president’s criminal attempt to overturn the results of a fair election began months before January 6, 2021. Other obvious names seem inadequate. The Trump Federal Conspiracy Trial (to distinguish it from the conspiracy case in Georgia) and the Federal Election Interference Trial are cumbersome.

So let’s call it what it is—the Trump Coup Trial. It’s the best chance we have as a nation to bring Trump to justice for the worst of his many sins: masterminding a deeply unpatriotic plot to defraud the public and thwart the peaceful transfer of power. Trump was indicted on four counts, but they all involve the same sinister act: an attempted coup d’état.

It’s easy to get confused by the seven Trump cases working their way through the courts. The former president has already lost in civil suits involving sexual abuse and defamation (the E. Jean Carroll case) and long-term business fraud (the Trump Organization case), and he faces a civil suit filed by injured Capitol Police officers and House Democrats alleging incitement on January 6. Together these cases—if upheld on appeal—have the potential to cost Trump hundreds of millions of dollars in liquidation losses, disgorgement, and damages.

On the criminal front, the former president faces a total of 91 serious charges, alleging that he engaged in a number of nefarious plots, including the following: directing a wide-ranging conspiracy aimed at stealing the presidential election in Georgia (where convictions would be out of reach of his pardon power as president); falsifying business records in paying off a mistress—Stormy Daniels—in New York (where convictions also would be out of reach of a presidential pardon); and willfully refusing to hand back nuclear and other military secrets he kept unsecured at his Mar-a-Lago estate in Florida after he left office. In the latter case, prosecutors seem to have Trump dead to rights, though the complexities of reviewing national security documents and the rulings of U.S. District Court Judge Aileen Cannon will most likely delay the Florida trial until after the 2024 election.

This leaves the Trump Coup Trial as the most historic—even if, like the classified documents case, it is subject to a newly reelected President Trump corruptly ordering the Justice Department to drop the whole thing. To streamline the case and increase the odds of its being tried before the election, Smith asked the grand jury to indict only Trump, leaving Rudy Giuliani, John Eastman, Jeffrey Clark, Sidney Powell, Kenneth Chesebro, and at least one other as unindicted coconspirators for now.

In the months since the federal indictment, Smith’s prosecution has been bolstered by Chesebro, Powell, Jenna Ellis, and, possibly, Mark Meadows flipping in the Georgia case. While it’s too early for the government to disclose its witness list, expect all of them to be on it. Meadows, in particular, could be a devastating witness against Trump.

Trump’s strategy, of course, is to defy Judge Chutkan’s preference for a speedy trial and run out the clock. So Lauro and his team are busy raising every imaginable objection. As a practical matter, almost all appeals on these issues will—under the rules of federal criminal procedure—be heard only after the trial is over. There are three exceptions: Chutkan’s gag order, which would not delay the trial even if it were overturned on appeal; ​​Trump’s double jeopardy claim, based on his acquittal in the 2021 impeachment trial (which borders on frivolous and can be quickly rejected); and—most important—Trump’s immunity claim, which also lacks merit but could give the Supreme Court a chance to gum up the works.

The gag order is fully justified. Trump’s attacks on court employees in the civil case involving his business—which puts their lives at risk—have already led New York Judge Arthur Engoron to impose modest fines. It wasn’t long before Chutkan’s patience wore thin, too. On October 29, she reimposed a gag order that she had temporarily suspended, singling out an appalling social media post directed at Mark Meadows, Trump’s former chief of staff, that said any cooperation with prosecutors is what “weaklings” and “cowards” do. The gag order was not in effect when Trump wrote the post, but, as Chutkan noted, the language would “almost certainly” have violated it.

Chutkan wants to avoid jailing Trump for contempt; her order is mild compared to what any other defendant of comparable recklessness would receive. It allows Trump to attack Joe Biden and the Justice Department, and even the judge herself—just not the lawyers, witnesses, and court personnel connected to the case. Trump—being Trump—will likely at least tiptoe up to the line and perhaps cross it, using social media to taunt and endanger people all the way through jury selection, the trial, the verdict, and beyond.

Doing so helps advance his narrative that he’s the victim of vicious, unfair attacks for merely expressing his free speech rights about the election. In spewing his usual insults, Trump’s legal and political arguments are in perfect alignment. The problem for him is that there’s nothing in that strategy to help him delay the trial.

The D.C. Circuit already has clarified and upheld almost all of the gag order, adding leeway for Trump to criticize Jack Smith. Trump’s further appeals on this issue will not affect the trial date.

Lauro’s best bet for delay is his flimsy claim that Trump is immune from prosecution for virtually anything he did as president. His appeal is based on a 1982 Supreme Court decision in Nixon v. Fitzgerald, a whistleblower case in which the high court granted presidents broad immunity from civil suits. Trump’s lawyers argue in their motion that such immunity should be extended to criminal cases because the Constitution says that impeachment and conviction is the only way to hold the president of the United States accountable for breaking the law.

This is a lame argument. Nowhere does the Constitution say that presidents can only be held criminally accountable by Congress. In fact, when Trump faced impeachment in 2021, his lawyers argued that he should not be impeached because he would be subject to criminal prosecution after leaving office. In explaining on the Senate floor why he voted against conviction, then-Senate Minority Leader Mitch McConnell essentially recommended such prosecution as the proper remedy. Trump’s lawyers are echoing the argument that Richard Nixon made after resigning his office in disgrace: “Well when the president does it, that means that it is not illegal.” There is no evidence that the Founders believed this.

On December 1, Chutkan issued a stinging opinion rejecting Trump’s immunity claim in language that invoked the first principles of constitutional government. For a president to have immunity from all criminal prosecution would be to endow him with “the divine right of kings,” which is what the American Revolution was fought over. Chutkan also knocked down his flimsy double jeopardy claim. Trump’s lawyers immediately appealed to the D.C. Circuit, hoping to slow the case until after the election. But then, in a surprise move, Jack Smith—arguing that this is a “case of paramount public importance”—asked the Supreme Court to take the case directly, as it has in several cases in recent years.

On December 22, the Supreme Court declined to do so without dissent. Anticipating this possible outcome, the D.C. Circuit had already put the immunity appeal on a fast track, with arguments scheduled for January 9. If, as expected, a three-judge panel made up of two Biden appointees (Judge Florence Pan and Judge Michelle Childs) and one George H.W. Bush appointee (Judge Karen Henderson) quickly upholds Judge Chutkan on the immunity question, Trump will almost certainly appeal for an en banc ruling, meaning a review by all 11 judges.

As part of the chess game, Jack Smith would likely again ask the Supreme Court to review the case immediately. If the Court again denies this request–taking more time off the clock–then Trump’s en banc request will be considered by all 11 judges. They are likely–given their records–to agree with the three-judge panel on rejecting Trump’s immunity claim and thus that there is no need for taking the unusual step of reviewing it en banc. But if even one Trump-supporting judge takes a while to write a dissent, which is quite possible, that could slow the process, delaying Supreme Court review and the opening of the trial. It’s impossible to know at this point whether that delay would be weeks or months.

When the immunity case gets to the high court, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson would almost certainly side with the prosecution. Clarence Thomas (who should, but likely wouldn’t, recuse himself because of his wife’s role in the efforts to overturn the election), Samuel Alito, and Neil Gorsuch might well side with the defense, although Gorsuch voted against Trump in the 2020 subpoena cases. So the immunity question would likely be resolved by which side won over two of the three remaining justices—John Roberts, Brett Kavanaugh, and Amy Coney Barrett, all of whom have occasionally ruled against Trump.

If we assume that the Trump Coup Trial will proceed, the prosecution will tell the jury a story similar to the one outlined by the January 6 Committee, whose historic work prodded the Justice Department to bring charges. It’s the story of a president who told elaborate lies claiming that fraud caused his loss at the polls—lies that helped him orchestrate a corrupt conspiracy to overturn the results of the 2020 election and remain in power. He did so “knowingly”—a word used 36 times in the indictment—and thus with clear criminal intent by rejecting the consistent conclusion offered by a parade of Trump lawyers and other advisers who will testify that they told him he had been fairly defeated. In the prosecution’s theory of the case, Trump obstructed the federal government’s legitimate function in collecting, counting, and certifying the ballots and deprived voters of their right to have their votes count.

If the prosecutors’ case proceeds along the chronological lines of the indictment, we’ll hear early on from witnesses such as Georgia Secretary of State Brad Raffensperger and former Speaker of the Arizona House Rusty Bowers about how Trump and his coconspirators used false claims of election fraud to try to convince them to take legitimate votes away from Biden. Expect testimony from former Attorney General William Barr, former Director of National Intelligence John Ratcliffe, former Director of Cybersecurity Christopher Krebs, and several others about how Trump was repeatedly told that he lost and that his claims about fraud were false and belied by the evidence—and how he immediately and “knowingly” went out hours later and lied again about winning.

The defense will argue that Trump truly believed he had won. But what basis can he claim for such a “belief”? The prosecution will explain to the jury that you can’t say, “I robbed the bank because I genuinely believed the bank had money I was entitled to.”

When former Acting Attorney General Jeffrey Rosen, likely a key prosecution witness, told Trump that the Justice Department would not attest that the election was stolen, Trump replied, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” Those of us credentialed to cover the trial will be looking at the jurors to see how they absorb that one.

The most damaging moment for Trump may come when prosecutors get to the slates of “fake electors” assembled in seven states. They will introduce evidence that Trump consciously helped plan how to trick supporters into signing fraudulent documents, and then phoned the chair of the Republican National Committee, Ronna McDaniel, to ensure that the plan was in motion.

Trump’s lawyers will claim that he was just following the precedent of Hawaii in 1960, when Nixon won in an early count (by fewer than 150 votes) and John F. Kennedy’s campaign submitted a slate of electors that was accepted in the Electoral College. But the differences between 1960 and 2020 are glaring. To name just two: An official recount in Hawaii was underway when the Kennedy forces submitted their electors, which was not true in 2020; more significantly, JFK’s Hawaii slate was not part of a multipronged, multistate effort explicitly intended to prevent the congressional certification of the election and the transfer of power.

The prosecution will argue that Trump tried to convince the Justice Department to use deceit to force state officials to replace legitimate electors, and that he attempted to have Justice officials make knowingly false claims of election fraud to officials in the targeted states through a formal letter.

And, of course, the jury will hear how the president tried to browbeat his vice president, Mike Pence, into certifying his fraudulent electors before expressing no concern on January 6 that Pence might be hanged by the mob that Trump had assembled. The former president’s outlandish support for the insurrectionists—before, during, and after January 6—will also likely be admissible.

The Supreme Court has agreed to hear a different January 6 case about the scope of the law on obstruction of official proceedings, which is one of the counts in the indictment. But, for at least two reasons, whatever the Court decides, it will not get Trump off the hook. The narrow construction of the statute urged by the defendant would make it apply only to evidence-related obstruction—but that is exactly what Trump is charged with in the phony elector scheme. And, in any event, two of the four charges against Trump do not depend on that law. Still, count on Trump to use that pending Supreme Court case to argue for delay (and for dismissal if he wins on this point).

So far, the case for the defense remains a big mystery. In his pretrial motions and public statements, Lauro echoes Trump and insists that the case should never have been brought, especially during an election cycle. Expect to see him (and possibly Trump himself) sounding these themes on the courthouse steps, which will give him a PR advantage over Smith, who won’t prosecute his case in public.

Lauro has bragged that one of his trademark moves is to keep his cases simple by not putting on a defense at all—just a strong opening statement, withering cross-examination of government witnesses, and a closing argument that the prosecution has not met its burden of proof. On the other hand, Lauro said last summer that he would call Pence if the prosecution did not; he believes the former vice president will testify that Trump may have insulted him but did nothing illegal. Outside experts think this is wishful thinking and that, based on his leaked deposition, Pence’s testimony will seriously harm Trump.

Will Trump himself testify? While Lauro has noted that in general he hates putting his clients on the stand, he may have no choice if the case is going badly. And, of course, his client might simply choose to testify. Donald Trump rarely shies away from an opportunity to stage a spectacle featuring a performance by Donald Trump. In his only appearance on the stand so far, in the Trump Organization civil suit, he failed to impress the judge (there was no jury) with his rants, and chickened out of testifying a second time. We’ll see if a jury in another liberal city will be more receptive to his charms.

Whether he will be examining his own witnesses or cross-examining witnesses for the government, Lauro’s defense comes down to three narratives: The former president had no criminal intent or consciousness of guilt; he was merely following advice of counsel; and he was merely exercising his First Amendment rights.

None of these hold water. The weakness of Trump’s “no criminal intent” argument will be that a bevy of former senior campaign advisers and White House aides will testify that they told Trump he had lost, which will go a long way toward establishing that he knew he had done so. Moreover, his claims about alleged incidents of election fraud were clearly refuted by all available evidence and by more than 60 judges. The advice-of-counsel argument is undermined by the fact that Trump thought Sidney Powell was “crazy” and by testimony that Rudy Giuliani was peddling (bogus) theories, not advising his client based on evidence. Finally, there are a host of precedents establishing that corrupt acts are not protected by the First Amendment, sinking his “criminalization of free speech” defense.

All of this bodes well for Jack Smith’s case, but the bottom line is that he has to bat a thousand with the jury. While a D.C. jury is expected to favor the prosecution, it takes just one holdout to hand Trump a huge victory.

If he is convicted, expect a tough sentence. Chutkan has thrown the book at defendants in other January 6 cases, often commenting during sentencing about the seriousness of the insurrection. And in this case, Chutkan has already ruled that the president possesses neither a “get-out-of-jail-free” card nor “the divine right of kings.” Trump would appeal any conviction, of course, and he wouldn’t exhaust those appeals for years. In the meantime, buckle up for the constitutional ride of a lifetime. 

This article was updated on December 22, 2023.

The post A Trump Coup Trial Primer appeared first on Washington Monthly.

This past fall, with student loan payments set to resume after the pandemic pause, dread was setting in. My pre-pandemic monthly payments had been a crippling burden that made saving money impossible; the pause was a lifeline that had allowed me to pursue a graduate degree and open my first-ever savings account. For more than three years, the dark rain cloud that had followed me everywhere had cleared. Now it was back.

Out of options and running up against the deadline, I heard about the Biden administration’s new Saving on a Valuable Education repayment plan, or SAVE, which was announced at the end of August.

Hunched over my laptop, I took a leap of faith, unsure if it would help me—especially because my debt burden had grown by 43 percent and I was earning double the salary I had been before the COVID payment pause. To my relief, I was notified that I’d owe zero dollars a month until the plan automatically renews in September 2024. Then, my payments would cost roughly $227 a month—37 percent less than I’d be paying under the old plan. 

After digging deeper into SAVE’s details, I learned that the plan is more than an extra-lenient repayment program—it’s President Joe Biden’s vehicle for delivering billions in forgiveness after the Supreme Court defeated his $430 billion debt cancellation plan this summer.

Under other repayment plans, the average borrower ends up paying more than the original amount they borrowed because interest accumulates. But the average undergraduate borrower who uses SAVE will repay only 60 cents on every dollar they borrowed. For low-income borrowers, the entire balance will be forgiven. 

There’s never been a program like it. For millions of Americans, SAVE will be debt cancellation in the form of debt repayment. In other words, the large-scale debt relief activists have spent years fighting for is finally here—it just didn’t arrive in the packaging anyone expected.

And no one’s talking about it. The rollout of SAVE has been largely ignored by the mainstream press. Worse, it’s been dismissed by the hard-line activists who spent years pushing Democrats on student debt, making this moment possible. The leading debt activist and author Astra Taylor derided SAVE as “just yet another tweak from the Department of Education.”

That’s a huge problem. The political stakes of this attitude from the left are dire. Failing to turn out young voters, who regard student debt as a top issue, would likely deliver the White House to Donald Trump in 2024. Public conversation is still hung up on total debt cancellation—which is going nowhere, thanks to a hostile Supreme Court conservative supermajority—despite the fact that the Biden administration is quite literally delivering tens of billions of dollars in debt forgiveness through other means.

SAVE should be a political coup for Biden, who is struggling to hold on to the young voters who helped him take office three years ago. Instead, it’s been the opposite. It’s time to change the narrative.

To see why this program is so revolutionary, it’s important to get into the nuts and bolts. 

SAVE is a type of income-driven repayment plan. IDR plans allow borrowers to pay off their debt in monthly installments that reflect a percentage of their discretionary income, which is the government’s estimate of a borrower’s remaining income after paying for their necessities. These plans have been available since the 1990s alongside other options, such as standard plans, which set a fixed and consistent monthly repayment. But IDR plans have traditionally offered unattractive terms for most borrowers and have been relatively unpopular. 

Three of the Education Department’s four legacy IDR plans are still available to borrowers, while Revised Pay as You Earn, or REPAYE, which came out in 2015, has been replaced by SAVE. SAVE offers drastically more generous terms than REPAYE or any of the remaining plans. 

First, SAVE changes the definition of discretionary income. Other IDR plans consider any income above 150 percent of the federal poverty line (which varies based on household size) to be discretionary income. But SAVE considers discretionary income anything above 225 percent of the federal poverty line. That means borrowers who make less than $32,805 per year—225 percent of the federal poverty line for a household of one—have no discretionary income by SAVE’s definition and therefore pay nothing. 

Second, other IDR plans set monthly payments at 10 percent or more of a borrower’s discretionary income. Starting next summer, SAVE will make it 5 percent for most borrowers. For those like me with loans from both undergraduate and graduate programs, it’s a weighted average between 5 and 10 percent. (For the minority of borrowers with only graduate loans, it’s the full 10 percent.)

Take these two new terms together, and nearly all borrowers will have much smaller monthly payments with SAVE compared to REPAYE. For a borrower with only undergraduate loans with, say, a family of four and a household income of $75,000, it’s the difference between paying $250 and $31 every month. 

Third, under old IDR plans, if borrowers hit 20 to 25 years of regular payments without paying off the whole balance, the rest would be forgiven. SAVE offers forgiveness after just 10 years if you borrowed less than $12,000, the position in which many of the most vulnerable borrowers—low-income students who went to community or for-profit colleges and didn’t graduate—are stuck. For each additional $1,000 of debt, one year of repayment is added, capped at 20 years for undergraduate debt holders and 25 years for graduate borrowers. For example, someone with $15,000 in loans would reach forgiveness after 13 years. 

Lastly, if a borrower’s monthly payments under other IDR plans did not cover interest, the government would cover half the outstanding interest while the rest would accumulate. Over the past couple of decades, compounding interest has kept some borrowers from even touching their principal, often saddling them with balances larger than what they initially took out. A series of Pew focus groups in 2018 and 2019 found that “borrowers expressed tension between their desire to have lower monthly payments and their frustration at stagnant or rising balances in income-driven plans,” causing many to switch out. But with SAVE, the government pays for all interest not covered by monthly payments. As a result, loan balances never increase. 

The upshot is that millions of Americans will see much or all of their loans forgiven. 

Of the 5.5 million borrowers who’ve enrolled in SAVE as of early November, 2.9 million saw their monthly payment cut to zero. A Biden administration analysis found that the average amount of debt repaid for every $10,000 borrowed would fall from $10,956 under old IDR plans to $6,121 under SAVE for undergraduate borrowers. The rest will be paid for by the government. 

This remaking of REPAYE as SAVE also extends to how the Biden administration has reengineered the program’s back end. 

Historically, the administration of IDR plans has been a mess. Past IDR plans required borrowers to recertify every year, and a Brookings Institution study last year found that servicers routinely failed to make borrowers aware of this requirement. As a result, more than half failed to recertify every year, prolonging the life of their loan. A March 2021 report by borrower advocates found that 2 million borrowers on IDR plans had been repaying loans for at least 20 years and were therefore entitled to forgiveness on their remaining balance, yet just 32 individual borrowers had seen their balance forgiven. Neglectful government oversight meant that millions of borrowers were wrongly steered into costly deferments or forbearances by loan servicers. 

“For far too long, borrowers fell through the cracks of a broken system that failed to keep accurate track of their progress towards forgiveness,” Education Secretary Miguel Cardona said in a written statement last summer. To right this long-standing wrong, his department began an ongoing “account adjustment” that so far has wiped out about $44 billion for more than 900,000 borrowers who have surpassed the 20-year threshold. In all, the Biden team has used existing tools to cancel $132 billion in student debt so far, the most of any president in history.

And SAVE is structured to prevent such a crisis from happening again. The application is simple and the online portal works well, as I discovered when I signed up. Staying enrolled every year is no longer a technical and bureaucratic nightmare: The plan allows the Education Department to liaise with the IRS and pull financial information directly from a borrower’s taxes. This means the plan can automatically renew each year without input from the borrower, thwarting catastrophes caused by a missed email or a negligent loan servicer. 

It’s hard to exaggerate what a potential game changer SAVE is for the 44 million Americans who now collectively hold $1.7 trillion in student debt, roughly 7 times the total 20 years ago. The average borrower today holds $37,717 in student loans. For millions of Americans, debt stands in the way of starting a family, buying a home, and saving for retirement. 

It was certainly a burden for me. When I received my undergraduate degree in 2019—not from a fancy elite college, which was beyond the means of my middle-class family, but from a fine New York state school, SUNY Purchase—I was $35,000 in debt and looking for a career in journalism (yeah, I know). That winter, after months of effort, I landed a news broadcast job in New York City with an annual salary that was the same amount as my debt: $35,000. I could finally afford an apartment—albeit a tiny one—after months of couch surfing. 

A week later, the government came knocking: It was time to start making my monthly $198.40 payments. The financial strain was enormous on such a small salary. But when the pandemic hit in March 2020, the fear induced by the spreading disease was lessened, for me at least, when the federal government declared a pause to student loan repayments. 

I took advantage of that respite to enroll in a master’s degree program in investigative reporting from Columbia University’s Graduate School of Journalism, with the hopes that it would embed me in bigger, better career networks. To make ends meet, I skirted school rules preventing students from freelancing and even donated my eggs for $10,000. With the help of several scholarships, I graduated with only $15,000 in additional debt (the list price of a Columbia journalism master’s degree is $126,691). The gamble paid off: I got a decent-paying full-time job at a real estate trade publication and eventually landed at The New Republic, earning double what I had been making four years earlier. Still, I knew that the looming prospect of having to resume payment on my student loans, which now totaled $50,000, would mean a return to ramen noodles for dinner.  

Like most young debt-burdened college graduates, I was a fan of the “free college” idea that Bernie Sanders had launched in 2016, and was rooting for the Biden administration’s debt forgiveness plan, which the president had campaigned on in 2020. Naturally, I was crushed when the Supreme Court struck that plan down in June 2023, declaring (dubiously but not surprisingly) that it would usurp Congress’s authority. The backup forgiveness plan that Biden announced just after the Court decision would rely on different legal powers but is still likely to run afoul of the Court’s reasoning in the first case and also be blocked, according to experts. 

By contrast, the SAVE program, which the administration announced soon after the June decision, is much less vulnerable to judicial chicanery than conventional forgiveness. The Education Department has run IDR programs like this for decades. As Ryan Cooper wrote in The American Prospect, the Supreme Court would likely be “more hesitant to strike down a program with such a long precedent.” A recent attempt by Senate Republicans to block the plan came up short. The plan has faced no challenges in the courts. 

Predictably, this has sent conservative media into histrionics. “Unlike Biden’s other student debt cancellation proposals, there’s very little chance the Supreme Court will block it,” an apoplectic Fox News column observed. The Wall Street Journal fretted that SAVE would “make forgiveness a permanent part of the student-loan system.”

That’s correct—but it’s a feature, not a bug. “SAVE is President Biden living up to Candidate Biden,” Spencer Dixon, senior policy adviser with the nonprofit advocacy group Student Debt Crisis Center, told me. 

Using SAVE should be a no-brainer for borrowers. And yet few have taken advantage of the opportunity so far. Of the 5.5 million borrowers who have signed up, most are automatic rollovers from REPAYE. It’s likely that many more of the millions of borrowers who are eligible to apply for SAVE haven’t yet heard of the program. 

Part of the reason is that the mainstream press, which has obsessively covered the back-and-forth over total debt forgiveness, has barely written about the SAVE program. But the press’s failure is tied to the fact that progressive groups that advocate for student debt relief have not only failed to promote SAVE but are openly disparaging it—typically by equating it with the abuses and mismanagement of earlier IDR programs. “Anyone who tries to sell you on IDR (Income Driven Repayment) is probably not your friend,” the Debt Collective posted on X (formerly Twitter) after the announcement of SAVE. “It has failed over and over and over again.” 

Activists owe it to themselves—and the public—to take another look at SAVE. It is a far cry from the broken federal program that preceded it. 

For borrowers who tasted financial freedom during the pandemic and invested their hope in the cancellation plan, SAVE is more than a consolation prize. The plan is a more legally secure vehicle for keeping payments manageable while delivering billions in debt forgiveness. For the nearly 3 million low-income Americans who have already seen their monthly payments slashed to zero, the program is working just like conventional forgiveness. It has the benefit, too, of making “forgiveness a permanent part of the student-loan system,” as the Journal put it, instead of canceling debt once without putting an ongoing forgiveness program in place for future borrowers. SAVE is also just. It requires working professionals like me who can afford to pay back their loans to do so, but on terms that our budgets can handle and that allow us to move ahead in life.

Activists who spent years fighting for debt relief are maintaining an uncompromising purity standard now that it’s arrived in a form different than the one they envisioned. In so doing, they are not only depriving millions of stressed student debt holders whom they claim to represent of the information those debtors desperately need. They are also increasing the chances that Trump will win in 2024.

The post Psst: Joe Biden Has Solved the Student Debt Crisis appeared first on Washington Monthly.

At a time when many Black leaders have opted to remain circumspect or to place blame for the war in Gaza squarely on Israel’s shoulders, Reverend Al Sharpton has used his bully pulpit to call for calm and dialogue. He also has forcefully denounced the October 7 Hamas attack. 

At the Saturday-morning rally that he leads each week in Harlem, Sharpton immediately took to the podium on October 7 to describe the atrocities that had been leveled against innocent men, women, and children that morning. 

“He didn’t wait to check with his pollsters,” Jonathan Greenblatt, CEO and national director of the Anti-Defamation League, told me. “He didn’t wait to put his finger to the wind to see what people were saying. He didn’t call around to allies to understand the political call. He just said what he said because it was the right thing to do.” 

While the 69-year-old activist has long opposed Israel’s occupation of Gaza and the West Bank, Sharpton has also grown deeply frustrated by extremist groups like Hamas engaging in wanton violence. 

For those who best remember the reverend from the 20th century—when he was associated with high-profile protests in New York City—and haven’t kept abreast of his emergence as a powerful national political figure or a staple on MSNBC, his full-throated empathy for Israelis and Palestinians might come as a surprise. But as the author of a forthcoming biography of “Rev,” as he’s referred to by those who know him best, I can say his actions on October 7 and his interest in Israel reflect both his enduring values and the moral growth that makes him arguably the nation’s most important civil rights leader. 

For Sharpton, the October 7 massacre and Israel’s punishing attacks on Gaza recall 9/11. The al-Qaeda attack was personal for the Brooklyn-born native who runs his civil rights group, the National Action Network, from the House of Justice on 145th Street in Harlem. Travis Boyd—a young man who was a friend of one of Sharpton’s daughters—lost his mother in the attack on the World Trade Center. 

“After September 11, I started thinking, ‘Now I understand what people go through in Israel and parts of the Middle East,’ ” Sharpton recalled in his 2002 memoir, Al on America. “They go through this every day. Maybe it’s time for me to take a leap and identify with victims of terrorism—not deal with foreign policy but deal with the concerns of everyday people.”

Shortly after 9/11, Sharpton visited Israel, where he met then Prime Minister Shimon Peres, who encouraged him to visit Gaza and to meet with Yasser Arafat, the longtime chairman of the Palestine Liberation Organization. “[Peres] said that it was important for me not only to learn about terrorism from the Israeli side, but he asked if I would meet with the Palestinians and appeal for peace,” Sharpton recalled, adding that during the hours-long meeting with the Palestinian leader, Arafat unequivocally denounced Osama bin Laden and the terrorist attacks on the United States.

“How did we get to where we could have a Shimon Peres and a Yasser Arafat have an open line of communication, to where we are now?” Sharpton asked in October on Morning Joe, the MSNBC show devoured by elite audiences in New York and Washington, D.C., where Sharpton is a regular. (He also has his own show on the network, Politics-Nation with Al Sharpton.)

A childhood prodigy as a preacher, Sharpton has the ability to deliver the right line at the right time. In his remembrance of Peres and Arafat, he encapsulated the frustrations of so many in the U.S. who are despondent about the destruction and unrest in a country the size of New Jersey, and who despair that Gazans are led by rejectionist terrorists while Israel’s politically desperate prime minister, Benjamin Netanyahu, clings to power despite legal woes and plummeting poll numbers. 

Not content to simply speak out after October 7, Sharpton marshaled other civil rights leaders. Collectively, they issued a short but powerful statement that repudiated the violence and addressed the plight of civilians on all sides.

“We condemn this terrorist attack on Israel in which civilians have been targeted, killed, and kidnapped,” the statement, signed by Marc Morial of the National Urban League, Derrick Johnson of the NAACP, and Janet Murguía of UnidosUS, among others, began. It then appealed for calm and peace: “We hold innocent civilians’ families and our partners in our hearts, sharing prayers for their safety. We call on all our partners and colleagues to join us in solidarity because hatred and war must end.”

Sharpton’s tone, tenor, and tenacity during one of the darkest hours for Israel and American Jewry impressed Greenblatt. “After the massacre on October 7, the first person to call me was Reverend Sharpton,” Greenblatt said. “On October 8, the person who drove that statement … was Reverend Sharpton … [He’s] put himself out there in ways our community appreciates.” 

Sharpton also put himself out for the Jewish community just two months earlier, when he ensured that Jewish leaders played a vital role in the rally celebrating the 60th anniversary of the 1963 March on Washington for Jobs and Freedom, where Dr. Martin Luther King Jr. delivered his famous “I Have a Dream” speech. There was a strong Jewish presence on that hot August day during the John F. Kennedy administration. Rabbi Uri Miller provided an opening prayer, and Rabbi Joachim Prinz delivered an electrifying speech. In the months after that historic gathering, the progressive Black-Jewish coalition, which had been a linchpin of the civil rights movement, gathered steam. Two years later, Rabbi Abraham Joshua Heschel heeded King’s call for religious leaders to join him in the march from Selma to Montgomery for voting rights. In turn, King felt that it was critically important for him to stand in solidarity with Heschel over the Soviet Union’s mistreatment of its Jewish citizens. 

Sharpton may seem to some an unlikely leader to rekindle that Black-Jewish alliance, which has become frayed over issues ranging from affirmative action to the Israeli occupation of lands taken in the 1967 war. Throughout the decades, there have been feelings of hurt and betrayal on both sides, as when Reverend Jesse Jackson Sr. used the slur “Hymietown” to refer to New York City during an off-the-record conversation with a Black Washington Post reporter. It was the height of Jackson’s 1984 presidential campaign, and he later apologized. 

In 1995, many Black leaders grew irritated by the demands from some in the Jewish community who urged them not to participate in the Million Man March, which was organized in large part by Minister Louis Farrakhan. Barack Obama, for one, attended the historic gathering and later celebrated the “need for African American men to come together to recognize each other and affirm our rightful place in the society.” 

Sharpton briefly flirted with Black nationalism in the 1990s, though he never wandered too far from the nonviolent and integrationist teachings of King.

When the leadership of the United African Movement—an organization that Sharpton founded in 1988 with the late activist attorney Alton Maddox—demanded that whites be prevented from attending the organization’s rallies, held at Brooklyn’s popular Slave Theater in January 1991, Sharpton walked away in protest. He founded the National Action Network to “promote a modern civil rights agenda that includes justice, decency, and equal opportunities for all people.”

While Sharpton was leading a march in the mostly white working-class neighborhood of Bensonhurst to protest the killing of Yusuf Hawkins, a 16-year-old teenager who was shot by a group of white youth two years earlier, a 27-year-old white man named Michael Riccardi plunged a knife deep into Sharpton’s chest. In an act of forgiveness, Sharpton later asked the judge to show leniency. (Riccardi was convicted of first-degree assault and sentenced to five to 15 years in prison; he served 10.)

Over the years, some Jews have accused Sharpton of antisemitism, although those allegations grow fainter as the years pass. They accuse him, for example, of stoking the flames in 1991 after seven-year-old Gavin Cato was killed in a car accident involving a Hasidic driver in Brooklyn’s Crown Heights neighborhood. With the community angered by the boy’s death, riots erupted, culminating in the stabbing death of a rabbinical student, Yankel Rosenbaum. The New York media piled on Sharpton—who was asked by Cato’s father to deliver the eulogy at his son’s funeral—for encouraging the riots, even though an independent investigation by the New York State Division of Criminal Justice Services, at the direction of then Governor Mario Cuomo, indicated that Sharpton did not. 

“In January 1991, I forgave a white man for sticking a knife in my chest and trying to kill me. I also left the organization that I helped to build because they wanted to kick all of the whites out,” Sharpton told me. “Crown Heights happened in August 1991. I would have to be schizophrenic to do what they claim that I did. What would have been the point of me leaving the Slave Theater?”

Sharpton has also acknowledged, however, that he probably could have done more to ease the tensions. “We had our marches, and they were all peaceful,” he wrote in a New York Daily News op-ed published on the 20th anniversary of the Crown Heights riots. “But with the wisdom of hindsight, let’s be clear. Our language and tone sometimes exacerbated tensions and played to the extremists rather than raising the issue of the value of this young man whom we were so concerned about.”

One of those incidents came in 1995 when Sharpton led protests against Fred Harari, who owned Freddy’s Fashion Mart in Harlem near the famed Apollo Theater. Harari, who is Jewish, subleased the property to Sikhulu Shange’s Record Shack. Sharpton echoed Shange’s claims that Harari was trying to raise the rents and evict Shange—a South African—and called for a boycott of Freddy’s Fashion Mart. The building’s owner was the United House of Prayer for All, which tried to find Shange another location. Sharpton stood by Shange.

“I said, ‘We will not stand by and allow them to move this brother so that some white interloper can expand his business on 125th Street,’ ” Sharpton later recalled. “Yes, I referred to Freddy as a ‘white interloper.’ And that was wrong. But I had no clue that he was even Jewish.”

On December 8, 1995, Roland James Smith Jr., a deranged and armed Black man, entered Freddy’s Fashion Mart and set the building on fire. Eight people, including the gunman, were killed. Some incorrectly blamed Sharpton for the incident. 

Today, Sharpton is widely recognized as a force for healing. As the 60th-anniversary march wound down, Sharpton got word that a white supremacist, firing a weapon emblazoned with a swastika, had gunned down three Black people at a Dollar General store in New Town, a predominantly Black neighborhood in Jacksonville, Florida. 

When the family of Angela Carr—the 52-year-old mother of three who was shot dead in her vehicle outside of the store—got in touch with Sharpton’s office to ask him to deliver her eulogy, Sharpton invited Greenblatt to accompany him to the memorial service at Bethel Baptist Church in Jacksonville. The two had attended a private meeting at the White House two days after the march that included President Joe Biden, Vice President Kamala Harris, members of the King family, and other civil rights leaders. Greenblatt agreed. 

As they flew from New York City to Jacksonville in a private plane, the two leaders discussed how Greenblatt’s Anti-Defamation League and Sharpton’s National Action Network could do even more to bring Blacks and Jews together. 

“In many ways, we felt that we were trying to put together the coalition that Dr. King put together and not point fingers at anybody,” Sharpton later recalled, “and it was time to come together in a post-Obama presidency because we are all being stereotyped and targeted, including Arabs.” 

Greenblatt wholeheartedly agreed with Sharpton. “Black and Jewish communities have so much in common. Antisemitism and anti-Black racism are tightly intertwined in many respects, and there are antagonists and bad actors who are trying to divide our communities, but I really strongly believe that we are stronger when we are together,” he told me. “We’re both often victimized. We both have a history of dealing with pervasive bigotry.”

Sharpton understands, as did King, that America’s civil rights struggles are part of global struggles. King, for instance, was outspoken on the Vietnam War. With King’s philosophical teachings as the moral compass and Jesse Jackson as a mentor, Sharpton believes that the fight for justice should not stop at the water’s edge. “I am for a two-state solution,” Sharpton said on MSNBC in October. “But we can talk and not condone killing each other, particularly those who are not even in the military and have nothing to do with what either state is about.” A passion for international justice made Sharpton go to South Africa in the 1990s as an election observer when the liberated nation chose Nelson Mandela to lead a government that had imprisoned him for nearly three decades. 

As the National Action Network has grown in scope and size, so has its reach. The organization has offices in every corner of the nation and chapters in most states. Efforts are already underway to set up a chapter in the UK. The seeds were planted back in 1991, when Sharpton arrived in London to call attention to the death of Rolan Adams, a 15-year-old Black British teenager who was surrounded by a white mob who taunted him with racial epithets and chased him and his brother Nathan. Rolan collapsed and died. The case was eerily similar to an incident in December 1986 in the Howard Beach section of Queens, New York, when a group of white teenagers attacked three young Black men. One of them, Timothy Grimes, outran his attackers, but the others, Michael Griffith and Cedric Sandifold, were not as lucky. Griffith was chased by the gang into traffic and died after he was struck by a vehicle, and Sandifold was severely beaten. Sharpton led around-the-clock protests culminating in what was called the “Day of Outrage.” 

After the WNBA player Brittney Griner was imprisoned by the Russians in 2022, Sharpton signaled that he would travel to Russia with a group of other ministers to pray with her. He called on the Biden administration to help arrange the trip. While the mission never took place, Griner was eventually released after nearly 10 months of confinement and has credited Sharpton with helping keep her case on the front pages of the media.

Ironically, of the more than 30 times Sharpton has been arrested for civil disobedience across New York City, the longest he has served—three months, in 2001—was in the Federal Detention Center Brooklyn, for protesting against military exercises far from the continental U.S. on Vieques, a small island six miles from Puerto Rico where the presence of a U.S. Navy training range angered residents. (The range was finally closed in 2003, after protests that included Sharpton.) 

From the “Double V” campaign slogan during World War II—in which the nation’s Black newspapers, like the Pittsburgh Courier, proudly declared as their mantra “victory against fascism abroad and victory against Jim Crow segregation and racism at home”—to Jackson’s securing the release of an American airman from Syria in 1984, Black civil rights leaders have always been out front on global and international issues. 

Even as Sharpton battled a litany of high-profile racial profiling cases within the U.S. in the 1990s, he traveled to Rwanda to call attention to the genocide and civil war that left more than a half-million Tutsis dead at the hands of Hutu militias. Seven years later, he traveled on a three-day mission to Sudan, in northeastern Africa, to expose the nation’s ongoing practice of slavery. 

“There are those that want people to feel we will ignore some things that our people were able to be duped into,” Sharpton said after returning from the war-torn country. “Well, we’re going to be against slavery no matter who are the slave masters, the slave traders, or who are the slaves.”

With a global presence and the ear of politicians in the U.S., Sharpton has used his clout well. While the Chicago Black Lives Matter chapter was cheering Hamas after the attack with a tweet hailing the militants who flew into Israel on hang gliders, Sharpton was denouncing the attack. While he led protests after the death of George Floyd, spoke at his funeral, and has praised the BLM movement, he has also cautioned against defunding the police. Such a radical move, he has rightly argued, does not resonate with the millions of Black people in urban communities like Chicago, Philadelphia, and Minneapolis, where Floyd was murdered. 

“We need to reimagine how we do policing” in the U.S., Sharpton told the MSNBC audience. “But to take all policing off is something a latte liberal may go for as they sit around the Hamptons discussing this as an academic problem. But people living on the ground need proper policing.”

Nine days after Hamas attacked Israel, at Jazz at Lincoln Center in Manhattan, the National Action Network hosted its swanky Triumph Awards, created to honor influential figures who champion social, racial, and economic justice.

Sharpton, who has lost over 130 pounds since 2009, looked svelte in his tailored suit. 

Among this year’s honorees was Greenblatt, who had worked with Sharpton on several initiatives, including pushing the Biden administration to host the United We Stand Summit in September 2022, the first White House convening to focus on hate crimes. That summit came into being after 10 Blacks were murdered by an 18-year-old white supremacist at a Tops Friendly Markets supermarket in the East Side neighborhood of Buffalo. 

In his interactions with Sharpton, Greenblatt sees similarities between the activist clergyman and his predecessors, such as Thurgood Marshall and King. “I think Reverend Sharpton is a prophetic leader, and he works so hard for so many often behind the scenes that people don’t see, and I’ve learned so much from him and have appreciated his allyship,” Greenblatt said. 

At the start of the awards ceremony, Sharpton used the opportunity to call for an end to terrorism and hatred. He reiterated that the fight for global human rights is merely an extension of the civil rights movement. “When we see what happened in Israel and Gaza, and you don’t feel for people who look like you and don’t come from your background, then you justify people who have done that to us,” he told the mostly Black crowd. “You can’t choose who you gonna fight for, and you can’t eliminate those that are gonna fight for you if they’re gonna stand up and fight.” 

It was whites and Jews, Sharpton declared, who “marched with us in the South so that you could get the right to vote.”

Sharpton summoned Travis Boyd, now a licensed minister with a doctorate in ministry, to the stage. 

“When I heard about what happened in Israel, and everyone was going through the politics, I thought about Travis and his mother and thought about the mother in Israel who was like his mother,” Sharpton said as the crowd nodded in affirmation. “There’s a mother in Gaza like his mother. So, anybody who is upset that we stepped into it, I want you to know that I don’t give a darn because I’ve seen what it looks like to be just collateral damage like you don’t matter. And that is why I wanted Travis here tonight, because I want you to understand these are real people.”

The post Al Sharpton Stands Up for Israel   appeared first on Washington Monthly.

Not so long ago, John Roberts patiently explained to reform-minded folk on Capitol Hill that the Supreme Court had no need for an ethics code. It was December 2011, and despite a recent scandal involving unreported income for Clarence Thomas’s wife, Roberts assured in his year-end report to Congress that the justices were policing themselves just fine. They followed laws that required them to report major gifts (Thomas’s lapse aside, presumably), and they used the lower-court code of conduct as “guidance,” even though it wasn’t binding. In some places, the chief justice seemed to hint that outside pressure over ethics was not only unnecessary but actually harmful—for instance, if it forced a justice to recuse himself “as a matter of convenience or simply to avoid controversy.” “At the end of the day, no compilation of ethical rules can guarantee integrity,” Roberts tutted. 

This fall, the chief justice ate his words. Faced with press exposés of ethical misconduct, especially by Thomas—free luxury vacations and private-school tuition from the billionaire Republican megadonor Harlan Crow, among many other unreported gifts—as well as plummeting public opinion, a congressional investigation, and the possibility of direct oversight from lawmakers, Roberts adopted the first ethics code in the Court’s 235-year history. The rules contained no enforcement mechanism and were watered down in subtle ways from the standard that lower courts follow. Still, it was an extraordinary capitulation: The justices had done something they long insisted they would never do.

On MSBNC, Rhode Island Senator Sheldon Whitehouse proclaimed the code “the first chink in the armor of indifference” around financial misconduct on the bench. But it was much more than that. The justices’ willingness to place specific limits on their own behavior—however unenforceable—marked a blow to an even more fundamental belief that the Court has long held about itself: its singularity. 

For the Court to remain “supreme,” the idea goes, it must float serene above all external influence, including any kind of ethics oversight or congressional regulation. In his 2011 report, Chief Justice Roberts took care to note that the justices observed federal financial disclosure law even though “the Court has never addressed whether Congress may impose those requirements on the Supreme Court.” And again, on the justices’ decision to follow federal law relating to recusal: “The limits of Congress’s power to require recusal have never been tested.” This past summer, Justice Samuel Alito—whose own ethical lapses have also come to light, including an unreported luxury jet trip to Alaska courtesy of another GOP donor with business before the Court—scoffed at the prospect of congressional intervention, telling The Wall Street Journal, “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” Alito wasn’t speaking out of turn; he was articulating long-held policy. Simply put: The Court must stand alone. 

There is, however, a danger in always standing apart from others. It can easily lead to standing above them. As Garrett Epps, the Washington Monthly’s legal editor, wrote in fall 2022, the Court is now mired in its third great historical crisis. Twice before, in the 1850s and the 1930s, the high court has been captured by adherents of one political party who have attempted to govern from the bench. When one branch of government declares its own primacy over the others, as well as the American people, the result is dangerous instability. In the era of Dred Scott, the Taney Court sided firmly with southern slaveholders, accelerating the coming civil war. During the Great Depression, the “Four Horsemen” on the Hughes Court blocked government programs meant to lift the country out of economic disaster. 

Now we have the Roberts Court, shaped by pro-corporate ideology and conservative resentment over social and demographic change. Overturning decades of precedent, the conservative supermajority has issued ruling after ruling that undermines the ability of executive branch agencies to regulate industry, to fight climate change, and to protect consumer health and safety. Its 2022 Dobbs decision on abortion has created a dystopian reality on the ground: neighbors informing on neighbors, children forced to give birth to their rapists’ babies, terrified doctors waiting for patients to get sicker before performing medically necessary procedures. 

The good news is that the reactionary turn of the Court has awakened a sleeping giant. Voters, including many Republicans, are in open revolt against Dobbs, as recent elections demonstrate. A popular movement against the Supreme Court itself hasn’t coalesced, at least not yet. But the justices’ actions have increasingly shocked center-left elites out of their ingrained deference toward the Court—as the pressure for ethics reform that congressional Democrats and others put on Roberts shows.

And in the end, Roberts blinked. Modest as it was, the Court’s concession—that it is not inviolable, not, after all, so supreme—indicates that the justices may finally have gone too far, and cracked open a window for deeper reform. 

Anyone concerned about the Supreme Court today should be working to prise that window open further. And to do so, they ought to draw on the robust and inventive debate that is brewing among scholars in law schools, think tanks, and advocacy organizations over how to fix the Court. Some of their ideas are bold structural changes: dividing the Court into rotating panels, stripping it of jurisdiction over certain issues, or controlling its certification process. Others are practical and based on policies already proven to work elsewhere, such as creating a “Congressional Review Act” for Supreme Court decisions, as already exists for executive branch regulations. What these ideas share is a recognition that the rights-giving 20th-century Court that liberals came to respect, even revere, is gone. Today’s progressives now realize that the high court is not an infallible fount of wisdom, and that it is historically more often a conservative force; and with that understanding comes a question that these scholars will help us all to answer: What is the Supreme Court even for?

President Joe Biden and other Democratic leaders have not embraced this deeper reform debate, perhaps recognizing that the political moment hasn’t yet arrived. When the survival of democracy depends on each coming election, a little short-term thinking is understandable. 

But one day that moment will come, and it may come suddenly: a wave election, a string of Senate vacancies, a scandal of new, earth-shattering magnitude, or a series of decisions as harmful as Dobbs. When that happens, reformers need to have a plan ready to go—a plan that will require broad public consensus about what problems need to be solved (Should we be restoring the Court’s legitimacy? Limiting its power? Or some combination of both?) and a detailed road map to achieve those goals through nitty-gritty policy. And it’s not as simple as drafting up a document and leaving it on the shelf. Being ready means spending years on movement building to bring together academics, policy wonks, and regular Americans, all waiting to grasp that perhaps fleeting and unforeseeable opportunity. Either that, or submit to being governed for another 30, 40, or 50 years by unelected partisans in robes.

So, for those who want to save the Supreme Court, that conversation must begin now.

A vanguard of law scholars has long warned that Americans, and liberals in particular, rely too much on the courts as interpreters of the Constitution and defenders of civil rights. Even as the Supreme Court recognized gay marriage in the 2010s, building on the unenumerated rights it had discovered in previous decades, “popular constitutionalists” such as Mark Tushnet and Larry Kramer worried that the bench was grabbing power for itself—power that could just as well be used to take rights away. With the blockade of Merrick Garland and the election of Donald Trump, those fears were realized. A tipping point for many law scholars came during the raucous and sometimes absurd confirmation of Brett Kavanaugh, in which the nominee, who had been accused of sexual assault, ranted about Clinton plots and his love for beer. 

Watching those hearings, Ganesh Sitaraman, a constitutional law professor at Vanderbilt, had had enough. He went to a colleague, Daniel Epps of Washington University in St. Louis, who recalls him saying, “This is not going to go away. People are going to care about this. Let’s get on top of this.” In 2019, the pair published a law review article titled “How to Save the Supreme Court.” (Dan Epps is the son of Garrett Epps, who helped to edit this Monthly article.) The scholars painted a dire picture. The partisan balance and public image of today’s Court, they said, is roughly equivalent to that of the pre–Civil War Taney Court. The similarity lies not in the overt racism of decisions like Dred Scott, but rather in the widespread public belief that the Court was in the tank for southern slaveholders. Today, the Court is viewed by many as an arm of the Republican Party, a source of grave concern to Epps and Sitaraman: “In a world where the Supreme Court is widely seen as just another political institution, how will people think about law itself? Our fear is that in such a world, the very idea of law as an enterprise separate from politics will evaporate.” 

The Supreme Court needs to be thought of as a neutral arbiter for political disputes, not just another player in them, the law professors argued—and so fixing it today is a question of restoring that aura of public trust. Right away, that goal disqualified the most talked-about idea at the time: court packing. Supporters of court packing like the political scientist Aaron Belkin argue that the Supreme Court has already been stacked with highly ideological conservatives who gained their seats through norm-breaking political brinksmanship, and so to add, say, six liberal or moderate justices would actually be to unpack it. But as Epps and Sitaraman pointed out, that reasoning would mean little to Republicans, who would have every incentive to repack the Court as soon as they regained power. (Belkin, for one, finds that argument unconvincing. “The first thing is that the Court has already been stolen. If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again,” he told The Atlantic in 2020.) 

To fix the Court in a durable way, the two scholars imagined a total rework meant to make partisan capture almost impossible. The first step was to expand it even more. Epps and Sitaraman proposed appointing every circuit court judge—all 179 of them—an associate justice of the Supreme Court, which would hear cases on a rotating panel system. Every two weeks, nine justices would be picked by lottery from the larger pool. A few more tweaks would ensure impartial rulings: No more than five judges on a panel could be appointed by a president of the same party, and to rule federal law unconstitutional would require a 6–3 supermajority. Each change was meant to counteract a structural weakness that makes the Court vulnerable to political machinations. Partisans in Congress, for instance, would have less incentive to game the appointment process if each seat mattered less, and the larger pool of judges would reduce the unpredictability of death and strategic retirement. 

Along with that framework, which Epps and Sitaraman call the “Supreme Court Lottery,” they offered an alternative: the “Balanced Bench.” In this variation, five permanent justices from each party select another five temporary justices, who must be chosen either unanimously or by a supermajority. Those temporary judges serve a year on the Court, and are chosen two years in advance (so that no conniving parties can strike deals with to-be-appointed justices on specific upcoming cases). If the Court doesn’t fill those seats, it doesn’t convene. Like the other plan, the Balanced Bench is designed to thwart partisan takeover; in this case, by incentivizing consensus. Permanent justices would be forced to choose the most moderate and broadly acceptable temporary justices; and Congress would be encouraged to appoint more plausible centrists to the lower federal judiciary, since ideologues would have little chance of reaching the high court. 

Epps and Sitaraman’s institutionalist, fix-it attitude defines one side of a central divide in the reform debate. You might call their approach the “legitimacy” school of reform, the one that holds that we need to restore respect and trust in the Court. The other side—call it the “democratic” or “disempowering” school—emerged in a lengthy, at times fiery reply to Epps and Sitaraman in the California Law Review. The authors, Harvard’s Ryan Doerfler and Yale’s Samuel Moyn, offered a much simpler plan for the Court: Get it out of the way. “Asking ‘how to save the Supreme Court’ is asking the wrong question,” they wrote. “Saving the Supreme Court is not a desirable goal; getting it out of the way of progressive reform is.” 

Doerfler and Moyn, who write in long, elliptical sentences that land like academic grenades, diagnosed a liberal myopia about courts that traces back to Franklin Delano Roosevelt. They argued that the 32nd president’s challenge to the Supreme Court was disastrous—not because he proposed a court-packing scheme, but because he failed. The story of the famous “Switch in Time” and the narrow defeat of court packing in the Senate is often treated as an example of presidential overreach, a reason why the Court should be off-limits. But in fact, after Roosevelt accepted judicial deference in lieu of real structural change, the events that followed—the Court’s wartime decisions on religious freedom, the rights-expanding precedents of future decades, the anti-regulation rulings of the 2000s—saw the institution grasp ever more power. Meanwhile, liberals got the policies they wanted, but were lulled into relying on courts for those things rather than fighting for them themselves. 

To Doerfler and Moyn, tinkering changes like those offered by Epps and Sitaraman fall prey to that liberal Court Adoration Syndrome. The Epps/Sitaraman approach claims to protect the Court’s neutrality, but really, in balancing partisan interests so overtly, it’s just replacing left- or right-wing ideology with a different, centrist point of view. Beyond that, it doesn’t address the fundamental problem of the Court’s outsized influence. But the most immediate obstacle to these technocratic reforms, Doerfler and Moyn said, is that they are too complex for the average person to grasp and to chant for at a political rally. “This dooms any case for their feasibility,” they wrote. “What only law professors can understand, a popular movement will never demand.” 

The only response to a Court that has grabbed too much power, they said, is to take some of it away. One way to do that would be to strip it of jurisdiction over subject areas in which it might feel tempted to interfere with progressive change, such as environmental regulation or health care reform. The Constitution gives the Supreme Court “original jurisdiction” over disputes between the states and between high-ranking ministers such as ambassadors. That can’t be taken away. Everything else falls under appellate jurisdiction, which Congress has the constitutional power to regulate. Doerfler and Moyn didn’t outline a definite plan for how jurisdiction stripping should take place; the point, they said, is for the people themselves to decide how the country should be run, and to clear a path through obstructive courts to put those values into action. Other “disempowering” tools can be part of that conversation: “override” provisions that would allow Congress to vote to nullify Supreme Court decisions, or “poison pills” that would trigger more drastic policies if the Court overturned legislation (though Doerfler and Moyn are skeptical about the power of this deterrent).

Epps and Sitaraman soon fired back—you can’t just blow up the Court, they said; you need it for some things, like rights protection—which kicked off a lively discussion in the nation’s law journals, with ideas flowing from all corners of the country. Conservatives joined the discussion too, including William Baude, who continued to call for reform of the “shadow docket,” a term he coined in 2015 to describe emergency orders, which the Roberts Court has increasingly used to decide cases without a full hearing. One of the more creative examples came from Suzanna Sherry of Vanderbilt, who in “Our Kardashian Court” argued (while missing a golden opportunity to spell it “Kourt”) that the justices have bought into the celebrity culture exemplified by the famous-for-being-famous family. Cults of personality form around the Court’s biggest stars, whose jurisprudence has become warped by the need to cater to their fan bases. Think of the “Notorious RBG” mugs, of Antonin Scalia’s rock star tours of law schools, and of the many openly political events attended by Alito, Neil Gorsuch, and Amy Coney Barrett, including campaign-style pressers with Mitch McConnell and glitzy Federalist Society galas. To solve the problem, Sherry proposed making authorship of opinions secret and prohibiting separate concurrences and dissents. To avoid sounding like the Real Justices of First Street, the bench must speak in one disembodied voice.

Many of these reforms may sound extreme in their ambition and their scale. Court packing, jurisdiction stripping, elevating a hundred district judges at once to the Supreme Court—ideas that sweeping evoke the antidemocratic judicial takeovers of Hungary’s Viktor Orbán or Poland’s Law and Justice party. But almost all of the proposals have precedent in America’s history, and helped to shape the basic structure of the Court as well as the changing intellectual paradigms that guided its jurisprudence. 

In 1801, John Adams shrank the Supreme Court by one seat (from six to five) and packed the lower federal judiciary just before handing over the presidency to his rival, Thomas Jefferson. This “Midnight Judges Act” sparked a cutthroat fight in Congress, and it inspired Chief Justice John Marshall to get in while the power grabbing was good: Two years later, he used a case stemming from Adams’s appointments, Marbury v. Madison, to establish the practice of judicial review, a privilege not explicitly afforded to the Court in the Constitution. The size of the Supreme Court would change six more times in the next 80 years, often for political reasons. (Abraham Lincoln, who battled the Court over his Civil War powers, expanded it to 10 justices in 1863.)

The same goes for other present-day reforms. Jurisdiction stripping as a check on the judiciary was endorsed by Progressive Era politicians who sought to shield child labor regulations from a hostile Court that had twice struck them down; the same senators, including Robert La Follette of Wisconsin, also called for supermajority requirements and legislative override provisions. Later that century, southern segregationists outraged by Brown v. Board of Education called on the Senate to make itself the final appellate body on questions of states’ rights, with the power to overrule the Supreme Court. 

As Jamelle Bouie of The New York Times once pointed out, the historical norm has been to treat the Supreme Court as just another democratically accountable institution—a work in progress, not an untouchable holy idol. “This idea, that the court should work with our democratic aspirations and not against them—and that we should not hesitate to change and experiment with the court should we find ourselves struggling against it—is practically verboten among mainstream politicians,” he wrote in 2021. “But it is a critical part of our political heritage, stretching back to President Thomas Jefferson’s battles with a Federalist-dominated judiciary at the start of the 19th century.” 

As the Democratic presidential primaries began to heat up in 2020, the academic discussion seeped into progressive politics. Sitaraman had a long association with one of the front-runners, Elizabeth Warren, having served as her policy adviser and legal counsel in different stints since 2008. Now the wonkish senator began to repeat some of his ideas on the campaign trail. Senator Bernie Sanders of Vermont disavowed expanding the Supreme Court but supported a plan to rotate conservative justices down to lower courts. The policy nerd and upstart mayor Pete Buttigieg joined in, enthusiastically endorsing the Epps/Sitaraman lottery and citing The Yale Law Journal in his stump speeches. The demand among the base was strong enough to force Joe Biden to flirt with reform as well; as a candidate, he refused to say that he wouldn’t pack the Court. 

Playing footsie with FDR’s legacy didn’t cost Biden the election, though it was vanishingly close in key swing states. With a razor-thin majority for Democrats in Congress, a total overhaul of the Supreme Court in 2021 was obviously out of the question. But Biden did what seemed like the next best thing: He formed a presidential commission, stacked it with the country’s finest minds in constitutional law, and told them to report back on the present-day debate, the history of court reform, and the feasibility of the myriad ideas floating around. It might have been the start of a much-needed conversation, a chance to awaken the public to the crisis of the Court and hand them the intellectual tools needed to one day fix it. 

In the end, it wasn’t. The scholars did their job well, assembling a 300-page report that drew together all the major ideas and the arguments for and against. They compared the Epps/Sitaraman proposals and the competing policies from Doerfler and Moyn—and many others—and they plumbed how those tied in to differing philosophies about the role of the Court. They collected dozens of hours and thousands of pages of testimony from even more experts. Reading the commission’s report, which was released in December 2021, is enough by itself to give a layperson a comprehensive understanding of the debate. But it doesn’t offer any guidance about what to do next—and that’s because the scholars were told not to. Michael Waldman, a member of the commission and the president of NYU Law’s Brennan Center for Justice, recently aired his frustration with this on the popular podcast Strict Scrutiny: “We were actually instructed, publicly instructed, not to reach conclusions. And we didn’t—and so this was finally a government agency that works as intended.” 

By the end of 2021, the political momentum had petered out. The White House had moved on to other massively consequential programs, like the $1 trillion infrastructure bill and the Build Back Better initiative. The latter took almost a whole year of intense negotiations to get Senator Joe Manchin’s crucial signoff for its successor, the Inflation Reduction Act. All the same, some commentators were still working to bring a richer court reform discussion to the broader public. Journalists such as the Times’s Bouie, Vox’s Ian Millhiser, and The Washington Post’s Ruth Marcus tracked the Court’s outrages and the potential structural changes worth considering. Week by week on Strict Scrutiny, the law professors Leah Litman, Kate Shaw, and Melissa Murray gave in-depth and accessible explanations of the Court’s latest doings, while helping listeners to laugh through the absurdity and the horror. The reformers themselves occasionally got the word out through scattered opinion pieces in mainstream news.

Yet reform remained sidelined. Part of the problem seemed to be that the conservative supermajority hadn’t yet realized people’s deepest fears. Despite flirting with initiatives like the “independent state legislature” theory and a Texas abortion law designed to avoid judicial review, the Court did not embrace the most extreme options available to it, preferring instead its usual fare of striking down government regulations and protecting the rights of corporations and the religious. The runaway Court remained a worry, but a worry in the back of the public’s mind. 

In summer 2022, a case out of Mississippi would change all of that.

The first thing to note about Dobbs v. Jackson Women’s Health Organization is that, from a strategic standpoint, it was totally unnecessary. The Supreme Court didn’t need to overturn Roe v. Wade to effectively outlaw abortion in red states. As observers noted before the decision, the Court had been chipping away at the precedent for years by allowing ever more onerous requirements on abortion providers. It could have continued to do so, leaving Roe standing in name only and producing a much more muted backlash. But Mississippi passed a law directly challenging the precedent, and the conservative Fifth Circuit (a panel even more partisan and unmoored from convention than today’s Supreme Court) struck it down, citing Roe, setting up a confrontation the justices couldn’t resist. 

Assigned to write the opinion, Alito, a devout Catholic and avowed enemy of Roe, decided to swing for the fences. The irascible originalist dynamited 50 years of bedrock precedent, declaring Roe “egregiously wrong” and “and on a collision course with the Constitution from the day it was decided.” To prove that abortion has always been a “crime,” he cited a 13th-century jurist, Henry de Bracton, who was an authority on the ducking stool and who called for women suspected of false pregnancy to be locked in a castle and examined daily by “feeling her breasts and abdomen and in every way.” Even worse, Alito appeared to make no exception for rape or incest. And he gave the sense in his writing that the conservative supermajority was drawing a new line in the sand. From that point on, the possibility loomed that they might declare any long-standing precedent unconstitutional, as long as they judged it, by whatever standards suited them, “egregiously wrong.”

Justice Thomas’s concurrence gave a hint of where that could lead. Many of the rights enshrined by the Warren and early Roberts Courts over the past half century—including abortion—relied on an unenumerated “right to privacy” discovered within the Fourteenth Amendment. Now, Thomas opined, the Court ought to follow up on its rollback of Roe by declaring other privacy-based rights unfounded: the right to use contraception, and the right to be intimate with a person of the same sex or to marry them. (Notably, he did not mention Loving v. Virginia, the decision that struck down anti-miscegenation laws. Thomas is Black, and his wife, Ginni, is white.)

Democrats universally decried Dobbs and urged voters to express their displeasure at the polls, which they did that fall, forestalling the predicted “red wave.” Still, Republicans won a narrow majority in the House, and there was no direct action against the Court before Democrats handed over control in January 2023. 

Meanwhile, the academic debate was still brewing. In February 2022, the scholars Willy Forbath and Joseph Fishkin released a landmark book, The Anti-Oligarchy Constitution, that offered a bird’s-eye map for court reformers by updating Progressive Era arguments about constitutional law for the present day. Positively and brilliantly reviewed by the law scholar Caroline Fredrickson in that April’s Washington Monthly, the 640-page opus argued that today’s liberals ought to embrace a concept called “popular constitutionalism,” which would greatly widen the present-day conception of who gets to interpret the Constitution and what sorts of questions are “constitutional” ones. 

Right now, the Supreme Court jealously guards for itself the task of deciding what the Constitution means, and it thinks of that meaning narrowly, as a question of individual rights and the limits of the federal government’s power. In contrast, popular constitutionalism says that all three branches of government, and all Americans, should see themselves as “constitutional” actors. Furthermore, it holds that many more kinds of questions about how we order society should be considered constitutional issues. The Constitution doesn’t just stop the government from interfering with private citizens; it also implies that government has the obligation to do certain things for the people—to fight against wealth concentration, for instance, and to provide economic opportunity. Forbath and Fishkin’s book offered a holistic view of the current crisis of the Court: It’s not just one policy or another that will fix it, but rather the grander project of building a society that shares broadly the responsibility of deciding these fundamental questions.

In November of that year, the Anti-Oligarchy authors discussed their book at a Georgetown Law School conference stacked with all the big names in the academic reform movement, as well as major figures like Maryland Representative Jamie Raskin and E. J. Dionne of The Washington Post. The event, which was organized by the American Constitution Society, a left-leaning counterpart to the Federalist Society founded in 2001, had an air of possibility, of action and invention, in sharp contrast to the glum “what-can-you-do” coverage that followed Dobbs. Unlike other places of public discourse, there was a willingness to directly confront the Court, and even to take action against the justices themselves. 

“I want to suggest that courts are the enemy, and always have been,” Josh Chafetz, a Georgetown Law professor of the “disempowering” school, said on an afternoon panel with Doerfler, Sitaraman, and another Georgetown scholar, Victoria Nourse. In one exchange, Chafetz called for retaliation against the justices as individuals, wondering aloud whether Congress should consider withdrawing funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.” The quip drew a faint chuckle from the crowd, but Doerfler, deadly serious, interjected: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.” What put us here, he said, is the idea that the Court is an “untouchable entity and you’re on the road to authoritarianism if you stand up against it.”

As could be expected, the institutionalists and disempowerers rehashed the major points of their debate, and they and others threw out still more ideas to reform the Court. An inventive and yet eminently practical one came from Sitaraman, who proposed a Congressional Review Act for Supreme Court decisions, similar to what already exists for executive branch regulations, that would give legislators a fast track through their own procedures in order to quickly respond to court rulings. Later, spitballing, Chafetz imagined a remedy of linguistic dimensions: Have executive agencies abandon the legalese that they use when writing policy. Instead of using Latin phrases and citing precedent in anticipation of being dragged into court, bureaucrats would be freed to express themselves in language that reflected the priorities of the people they serve.

Forty years and a few months earlier, another possibility-filled symposium drew together a band of starry-eyed eggheads to reimagine the Supreme Court. That was the founding meeting of the Federalist Society, a rapturous weekend at Yale in April 1982 during which conservatives hatched a scheme to train up ideologically complaisant lawyers and stack the judiciary with them. In November 2022, Dionne, the Post columnist, suggested that the Georgetown conference might be the beginning of a similar liberal-leaning transformation. “Maybe this gathering will be the early history of what happens next,” he said.

Those who make comparisons between today’s reform movement and the Federalist Society should keep in mind that it took the conservatives 40 years to transform the Court. Though there are changes that can and should happen now, reformers should also be thinking in longer arcs. 

Right now, the conservative justices have through their own actions given momentum to one shorter-term reform: ethics. A litany of the misconduct revealed over the past year would take up too much space, but what’s notable is that it has shaken some Democrats into confronting the Court more directly. Senators Sheldon Whitehouse and Dick Durbin, of the Senate Judiciary Committee, are pressing ahead with an investigation into whether the justices’ failure to report billionaires’ gifts might have broken other federal laws. Senate Majority Leader Chuck Schumer has taken to attacking the present Court’s legitimacy, calling it the “MAGA Court.” Biden himself acknowledged, this past summer, that this is “not a normal court.” 

Still, with 2024 looming, the Democrats are shying from more fundamental institutional conflict. This may be wise, electorally; their voters are already activated over Roe, and a more direct challenge to the conservative supermajority could ring alarm bells in the Republican base (and further antagonize the justices, who might well end up deciding the election). But there are a few changes that political leaders can and should consider now. One is for Congress to adopt its own set of enforceable ethics rules for the Court, which, at a minimum, would signal the legislative branch’s willingness to assert itself as a check on the judiciary. Another, a simple change of Senate rules, is to get rid of “blue slips,” a practice that gives home-state senators an effective veto over appointments and allows Republicans to block lower-court judges for political reasons. Other ideas to reduce the brinksmanship of judicial appointments include a proposal that the Senate should have a time limit to hold hearings and vote on nominees.

Much else depends on building electoral majorities and an energized coalition that understands the issues and presses political leaders to act. But if Democrats win back Congress and hold the White House next year—admittedly an uphill climb—they should also consider passing Sitaraman’s Congressional Review Act. Right now, Congress doesn’t have an easy path through the filibuster to clarify its legislation, which leaves the justices with the last word on what lawmakers had in mind when they wrote a federal statute. As Sitaraman once put it, Congress needs a way to say, “No, this is what we meant.” 

The Supreme Court didn’t get this way all by itself. A deepening political divide has exposed structural weaknesses in American government, expressing itself in an ineffectual Congress that struggles even to pass a budget, an imperial presidency that has taken on most actual governing, and a partisan, overreaching Supreme Court. For the Court to change in a more fundamental way, the forces pressing on it will have to change as well. 

In the middle to long term, that means strengthening Congress, and encouraging it to push back on the Court’s usurpations of its constitutional powers. The executive branch, too, should assert itself as a constitutional actor in dialog with the Court. In that vein, some reformers advocate for what Doerfler calls “the tool of conflict”—that is, running popular reforms into the buzz saw of the Court. The tactic might seem futile to some, but the accelerationists of the reform community argue that it can help build political momentum by focusing the public’s attention on the rights and privileges that the Court is denying them. The Biden administration did something like this with its student loan forgiveness program, which it advanced despite the widespread—and correct—expectation that the Court would strike it down.

The 2021 Presidential Commission, despite its flaws, helped to identify another fix with bipartisan potential: term limits for Supreme Court justices. The policy enjoys wide support, most state supreme courts already use it, and, as the commission pointed out, “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices.” Replacing a justice every two years would reduce the randomness of illness, the unfairness of strategic retirements like Anthony Kennedy’s, and the political stakes of judicial appointments. It would make the Court somewhat more responsive to elections and changing views, and ensure that each presidential term comes with a certain number of appointments—a persistent concern given that Republican presidents have placed far more justices on the Court in recent decades, in proportion to the number of years they have controlled the White House.

There are a surprising number of complications to this seemingly commonsense reform, though, which make it a longer-term prospect at best. The Constitution says that justices shall serve “during good behavior,” which is widely understood to mean for life. Advocates have found ways around this by proposing that term-limited justices remain on the bench but assume “senior” status, among other workarounds, but the constitutionality of the idea is still unclear. And most of all, the implementation is incredibly important. What do you do with the justices already on the bench? In a 2021 paper, Dan Epps and three coauthors, Adam Chilton, Kyle Rozema, and Maya Sen, modeled the historical life spans and retirement times of justices to estimate how long it would take to achieve a fully term-limited Court based on different implementations. If reformers rotated a justice off every two years starting today, the transition would take 18 years. If they waited for the current nine to retire, it could take half a century.

Some of the more sweeping structural reforms, like Epps and Sitaraman’s grand reordering and the aggressive disempowerment of Doerfler and Moyn, also probably belong in this long-term category. And whether reformers ultimately go with a confrontational strategy or a more moderate, institutionalist approach—or some combination thereof—will depend on a wider public debate that should begin now. The liberal base, and America as a whole, ought to think about how its shared values can inform a new vision of what the Court is for. 

On March 9, 1937, Franklin Roosevelt devoted one of his fireside talks to an explanation of his plan to pack the Supreme Court. His complaints about the justices sound like they could have been uttered this very day: The Court had “improperly set itself up as a third House of the Congress—a superlegislature … reading into the Constitution words and implications which are not there and which were never intended to be there.” 

And in a rhetorical frame that today’s reformers should copy, Roosevelt made clear that the fight was not between the president and the Court, but the Court and the people. In a parable of sorts, he likened the American government to a plow being pulled by a three-horse team. One horse, the judiciary, had gone off in its own direction, threatening to break the whole contraption apart. He, FDR, was trying to bring the team back together. But that didn’t mean he was taking control of the entire plow cart of state. The president, after all, is just another horse. (And as we all know, horses follow public opinion.)

“It is the American people themselves,” Roosevelt said, “who are in the driver’s seat.”

The post How to Fix the Supreme Court   appeared first on Washington Monthly.

In May 2018, the scientist Carol Bruegge drove eight hours from the Jet Propulsion Laboratory in Pasadena, California, to a remote stretch of federal public lands in Railroad Valley, Nevada. She’d visited this vast and whistling expanse of desert many times over the years to adjust the instruments that her team uses to calibrate NASA’s fleet of satellites. But this time was different. Almost immediately, Bruegge noticed that the valley, including the area surrounding the agency’s instruments, had been punctuated with small plastic flags stuck into the ground. One bore a slim piece of paper announcing that, two months earlier, a lithium mining company based in Vancouver, Canada, had staked dozens of claims on U.S. public land across the valley. 

The news came as a surprise. NASA had used the Railroad Valley since 1993 to perform the finicky business of calibrating its satellites. The work requires that Bruegge and her colleagues measure the light intensity bouncing off Earth’s surface and then compare those measurements with readings from orbiting satellites’ optical sensors. The trouble is, any old surface won’t do. “There’s a real Goldilocks quality to it,” says one of Bruegge’s colleagues, the NASA scientist Hal Maring, rattling off a list of exacting criteria for an ideal topography. Railroad Valley, he says, is the only place in North America that fits the bill, and one of only three such locations worldwide—the others are in China’s Gobi Desert and Libya’s Sahara. The prospect that a mining firm might disrupt this singular surface made everyone at NASA uneasy. U.S. satellites provide all kinds of vital data that informs both immediate and long-term decisions “that touch nearly every aspect of life on Earth,” Maring says, from the health of agricultural markets to the accuracy of an emergency weather response. 

But here’s the rub. The chairman of the mining company that had staked all those claims describes Railroad Valley in nearly identical terms. “There’s nothing like it that we’re aware of in North America and few if any comparable sites anywhere else in the world,” Kevin Moore, the chairman of 3 Proton Lithium, which is now headquartered in Carson City, Nevada, wrote in an email. The company estimates that the brine beneath the valley floor contains a bonanza of valuable minerals, including boron and tungsten, as well as “more than 25 million tons of recoverable lithium.” That would roughly triple the total amount of lithium—the key ingredient in electric car and solar energy batteries—that a recent U.S. Geological Survey previously estimated to be available within U.S. borders. 

If the firm can figure out how to extract those minerals profitably, it would go a long way toward satisfying a recent, bipartisan obsession in Washington: to reduce American dependence on China by securing a robust domestic supply chain of the critical minerals essential to building the technology we need to transition to a post-carbon economy. A flurry of recent legislation—including the Energy Act of 2020, the Inflation Reduction Act of 2022, and the Bipartisan Infrastructure Act of 2022—has introduced tax breaks, subsidies, and channels of direct government investment to incentivize the domestic mining and processing of critical minerals. In early 2022, President Joe Biden invoked an older piece of legislation, the Defense Production Act, to “boost mineral development … and provide federal money to help jump-start new mines or expand existing ones.” Within six months, the Department of Energy had dumped $2.8 billion into companies working on mining and processing critical minerals on U.S. soil. 

So, who’s in charge of adjudicating this kind of tricky dispute on federal public lands—especially one like this that pits two key government priorities against one another? 

Well, here’s the thing. When it comes to almost every industry that uses federal lands—oil, gas, timber, ranching, recreation, some car company that wants to film a commercial outside of Moab, you name it—the answer to that question is what you would expect. Staffers at the Bureau of Land Management (BLM) or the Forest Service, or whatever natural resource agency oversees the parcel in question, weigh the costs and benefits of a proposed land use and decide whether it’s a good idea. If it is deemed a good idea, the bureaucrats will generally allow a company to lease or use the public land for a certain period of time, under certain conditions, under a given fee structure. If not, the request is denied.

If the economic stakes or political ramifications are sufficiently high, the question can get kicked upstairs to the department’s political appointees or to a cabinet secretary, or it may even land on the desk of the president who, being a politician, will generally demand a compromise that mollifies as many constituencies as possible and that can be defended as in the national interest. The process is messy, imperfect, and subject to the whiplash of different administrations’ political priorities, but it’s also reasonably fair.

The Railroad Valley case seemed to demand precisely this kind of robust, high-level analysis by the experts at the BLM, which oversees the region. While 3 Proton Lithium had offered to use an experimental extraction technique to tap the mineral-rich brine without disturbing the valley’s prized surface, NASA had balked at the prospect, saying that Railroad Valley was too important to be “a guinea pig,” per Maring. Meanwhile, industry researchers pointed to alternative sites, like California’s Salton Sea, that contain large quantities of lithium, and where a mine would not compromise. NASA’s mission. But the BLM was silent on the dispute. That’s partly because the agency doesn’t have the staff numbers or in-house expertise to analyze and adjudicate the complex scientific issues involved. But the bigger reason is that when it comes to uncommon minerals and hardrock mining—an imprecise legal category that includes everything from precious metals and certain gravels to lithium brine—the BLM doesn’t have the authority. Unlike every other industry, hardrock mining on federal public lands falls under the auspices of a unique, dumpster fire of a law: the General Mining Act of 1872. 

Under this law, any mining company, from any country, is invited to stake as many 20-acre claims as it would like on most federal public lands. That invitation is “self-initiated,” meaning that the company need not ask permission first. It can just walk right onto public lands, stick a flag into the ground, submit a $175 registration fee, and bada bing, bada boom, it’s got itself a claim. Once the company discovers valuable minerals that can be extracted profitably, its claim vests as a “valid and existing claim”—a seemingly flimsy bit of legalese that carries the weight of a legal property right, protected by the Fifth Amendment. A valid claim can’t be revoked by anybody, including the federal government itself. Oh, and any minerals that a mining company finds on that claim are theirs to keep, for free. No royalty payments required. “People hear about this law and they say, no, no, no, that can’t be right,” says John Robison, the director of public lands for the Idaho Conservation League. “Then they learn more and realize it’s even worse than they thought.”

Once a mining firm has a valid claim to federal land, it’s a golden ticket. Neither the president nor the interior secretary has the power to undo valid claims; even an act of Congress decreeing a new national park on that same land wouldn’t do the trick. Instead, the burden shifts to the public to prove that a mine in that location would violate a federal environmental statute. But even then, if a judge determines that a mining operation would violate federal law, the firm’s valid claim remains intact. It can just tweak its proposal or offer up a stronger environmental mitigation plan. 

Last spring, 3 Proton Lithium was in the process of determining that it could mine profitably in Railroad Valley and therefore had a valid claim to the land. But before that process was complete, Interior Secretary Deb Haaland used the one blunt, time-limited tool at her disposal: the authority to unilaterally withdraw public lands from “new” mining claims—that is, not already valid claims—for up to 20 years. In April 2023, Haaland withdrew nearly 23,000 acres from new mining in Railroad Valley, including about a third of the area on which 3 Proton Lithium had claims. Bruegge and her colleagues could go on calibrating, for now.

But if Haaland’s withdrawal marked a victory for NASA, the climax of this unlikeliest of duels also left many in Washington agog at how the system had worked. After all, Biden had spent the previous two years captaining a full-court press to dump billions of taxpayer dollars into encouraging domestic critical-mineral mining. And yet here was Biden’s own appointee unilaterally shutting down mining access to potentially the biggest lithium deposit in North America without even so much as an interagency review. “I kept thinking, ‘What the hell is going on here?’ ” Representative Mark Amodei, a Republican from Nevada whose district includes Railroad Valley, told me. “It felt like hypocrisy, the height of bureaucratic hubris.” 

By late last summer, lawmakers were furious over Haaland’s land withdrawals, including the Railroad Valley incident, and were generally exasperated with the litigation surrounding the permitting of new mines at a time when everyone was pushing for new domestic mining for critical minerals. “Why [are] the administration and the [interior] secretary blocking access to minerals and making it more difficult … to mine them here at home?” Wyoming Republican Senator John Barrasso argued at a Senate hearing in September, summing up the anger of many of his colleagues. This frustration seemed to deliver unto Washington the rarest of events: broad-based bipartisan consensus that the system governing hardrock mining in this country is in desperate need of reform. After 151 years, the time was finally ripe. 

But that’s also where the consensus ended. As we enter 2024, half of Washington, including the Biden administration, is pushing to scrap the 1872 law and move hardrock mining into the same leasing-and-royalty system that governs other extractive industries, while the other half is pushing for a plan that makes the law’s sweetheart deal even sweeter, removing the few existing governmental guardrails and offering miners an even easier path to use public lands as they see fit. It’s all very Wild West. And this battle, unfolding this year on Capitol Hill, may very well shape the future of American public lands for the next century and a half. 

The 1872 General Mining Act passed in the wake of the Civil War, in an era of Native American displacement, homesteading acts, railroad land grants, and a push to settle the western frontier at all costs. But even in that context, the statute was almost immediately unpopular, decried as backward looking, poorly written, and vulnerable to fraud. In 1880, a public land commission had already published a list detailing the abuses that had occurred under the law in its first years, and by 1897, Congress moved to give the then-nascent Forest Service explicit authority to adopt regulations to protect public resources. (The Forest Service, cowed by the increasingly powerful mining industry, didn’t act.) 

By the turn of the century, as conservationism came into vogue and politics were increasingly veined with a populist fury, the law became an infamous exemplar of how to transfer public wealth into private hands. Under pressure, Congress began slowly reining in the scope of the law by removing from its auspices a range of industries, including coal, oil, and gas, and, later, common forms of building materials like sand, gravel, and stone. The 1920 Mineral Leasing Act, for example, pushed the petroleum industry into a leasing system, in which they could request to use federal lands and pay “not less than” a 12.5 percent royalty to the U.S. Treasury on the public resources they extracted. (The Biden administration recently proposed increasing that rate to 16.67 percent, the first hike in more than a century.) 

By the time this stampede of new regulation petered out, hardrock mining was the only industry that remained under the 1872 law. One reason was political fatigue, says John Leshy, an expert on U.S. public lands law and a former top attorney at the Interior Department. Another reason was that the hardrock mining industry, unlike petroleum, was geographically localized to a handful of big mines in Montana and Utah, making the 1872 law’s giveaway both less visible and less politically salient in faraway Washington, D.C. Yet another reason, Leshy adds, was that lawmakers were hesitant to impose regulations on an industry with a romantic public image. No one wanted to constrain the iconic American miner toiling with his pickax and mule—even if, by the 20th century, the miner in question was likely a giant multinational operation controlled by East Coast financiers. 

The result of this congressional inaction was painful. Over the course of the century that hardrock miners operated with legal impunity on federal public lands, they befouled more than 40 percent of American headwaters and abandoned some 500,000 toxin-leaching mines—a legacy that continues today. “Every day, many millions of gallons of water loaded with arsenic, lead, and other toxic metals flow from some of the most contaminated mining sites in the U.S.,” according to a 2019 Associated Press investigation, “and into surrounding streams and ponds without being treated.” Unlike the coal industry, which is required to pay to clean up its own mines, the 1872 law lets the hardrock miners off scot-free. Instead, American taxpayers are left with the roughly $50 billion cleanup bill, according to the EPA. The economic blow to taxpayers is arguably much worse, since the industry’s pollution likely foreclosed economic development in ways that are hard to measure. You can’t run a fishing outfit on a river where toxic runoff killed all the fish. 

The first real guardrails on this free-for-all arrived in the 1970s with the passage of a raft of new environmental and public lands legislation, including the National Environmental Policy Act of 1970, the Clean Water Act of 1972, the Endangered Species Act of 1973, and the Federal Land Policy and Management Act of 1976. Those laws, and many others, required federal land regulators to perform environmental reviews prior to authorizing mining operations. Pro-mining groups often point at the roughly three dozen federal environmental laws and regulations that now touch different aspects of mining to argue that enough has been done. 

The problem is that this perspective fails to take into account that, when it comes to hardrock mining on federal public land, all those powerful environmental laws and regulations must operate within the 1872 law’s warped legal architecture. Thanks to that law, mining companies generally already have property rights over the public land in question prior to submitting an operating plan to the BLM or Forest Service. That means that those agencies can’t simply say no, full stop, on the grounds that a mine would be a bad use of public lands. Doing so would likely trigger a “takings” lawsuit, in which a company could claim that the agency’s action extinguished its Fifth Amendment–protected property right to the land. This power imbalance dramatically narrows federal land agencies’ authority over hardrock mining. A staffer managing the timber or oil industry can ask, “Is this proposal a good use of public lands?” A staffer managing hardrock mining, however, is backed into a corner: “Since this firm already has property rights over this land, what can be done?” Roger Flynn, an attorney and founding director of the nonprofit law center Western Mining Action Project, says that sentiment is pervasive. “BLM will say, ‘Sorry, it’s nondiscretionary,’ ” he says. “Or, ‘It’s mining, there’s nothing we can do, our hands are tied.’ ”

As a result of this dynamic, the BLM and Forest Service generally approve every new mining plan that comes in the door. In the more than 30 years he’s worked in mining law, Flynn counts only a few instances where either agency denied a mining plan. In 2016, BLM and Forest Service officials said they were “unaware of an instance where an agency had disapproved of a mine plan based on the results of an environmental analysis,” according to a Government Accountability Office report. 

This practice of green-lighting every new mining plan has the effect of shifting the regulatory burden away from the agencies and onto the courts: Staffers just approve everything, then wait to be sued. Usually, the lawsuits are brought by tribal and public interest lawyers on the grounds that a mining plan would violate state or federal environmental laws or regulations. Sometimes these lawsuits are focused on a narrow procedural violation, and sometimes they’re broader in scope, arguing that a mining plan runs afoul of, say, the Endangered Species Act or the Clean Water Act. Most of the time, judges hearing such cases will make as narrow a decision as possible. It’s not a judge’s job to consider broadly the best use of federal public lands. On occasion, a judge will determine that a mining plan is in violation of a federal environmental law and cannot proceed as proposed. But even that decision does not revoke the miners’ property rights over the land; they can always submit a new plan of operation. 

The only end run around this process is a federal land withdrawal—that blunt tool that Haaland used in Railroad Valley. The interior secretary, the president, and Congress all have the power to withdraw lands from new mining claims—but even those withdrawals are not all-powerful. They too are always subject to valid and existing claims. This means that if a miner already has a valid claim to the land, they get to keep it—even if it’s right smack in the middle of a brand-new national park or monument. In 2012, for example, Interior Secretary Ken Salazar issued a withdrawal of federal public lands outside of the Grand Canyon. A uranium mine held claims there, but had not yet begun producing. An Indian tribe and conservationist sued, challenging whether the mine’s claims were valid. But a federal judge sided with the company: Salazar’s land withdrawal could not prevent the mine from moving forward. Biden recently used his authority to establish a national monument on that same piece of land, but that, too, is subject to the mining company’s valid and existing claims. The land is still a national monument—it just has a uranium mine in the middle of it. (With uranium prices rising, the mine is now ramping up operations.) 

This kludgy, court-dependent regulatory process is bad for everyone. Mining advocates don’t like being forced into litigation, and they don’t like land withdrawals, which often unilaterally remove tens of thousands of acres of federal lands from new mining exploration. But conservationists and tribal groups don’t like the process either. Their lawsuits are often the only means by which mining operations are held accountable to existing laws. The process is also expensive, inefficient, and time consuming, and it puts an inappropriate burden on courts. If the federal government were functioning properly, bureaucrats would have both the resources and the explicit authority to examine a new mining plan, determine if it would violate environmental laws, and then, crucially, weigh whether a particular type of mine would serve the public interest on a particular parcel of the public’s land. But they don’t do any of that—not even close. Even as their workloads are ballooning, federal land agencies are understaffed, under-resourced, and underfunded. “The mining companies have essentially unlimited resources to push their mining projects,” Flynn says. “The agencies are so outgunned.” 

Pretty much everyone hates this system—just for different reasons. Native Americans, ranchers, fishermen, and conservationists have been among the most vocal in their complaints, but fiscal conservatives hate it, too, because it allows an industry that produced $90.4 billion in non-fuel mineral commodities in 2021 to pay nothing in royalties for what they extracted from public lands. (“No one thinks simply giving away valuable minerals for nothing makes fiscal sense,” Autumn Hanna, the vice president of Taxpayers for Common Sense, informed Congress in 2021.) There’s even a populist, MAGA-ish argument against it. Conservative folks who live in rural areas bear the brunt of the mining industry’s environmental degradation in their backyards, while foreign and coastal elites take home the riches. They get the gold, the bumper sticker reads, and we get the shaft. 

And, of course, the mining industry and pro-mining advocates hate the current system too, because it’s inefficient and often results in either years of litigation or a land withdrawal. An interagency working group launched by the Biden administration found that it takes most mining projects an average of three to five years to finish their federal environmental reviews, and some take as long as 15 years. “If you’re going to deal with BLM, you better not be an old person,” says Amodei, the Nevada Republican. 

So why is this universally reviled system still the law of the land? It’s long been true in Washington that doing nothing is easier than doing something—and that’s especially true when a small group of well-connected multibillion-dollar corporations benefit from the status quo. The issue has also lacked a champion with enough political heft to whip the necessary votes. In fact, the opposite has been true. For many years, the former Democratic leader Harry Reid, a Nevadan whose father was a miner, kept a tight lid on mining reform proposals in the Senate. 

Even without Reid’s influence, the politics in Washington are tough. While most Democrats support overhauling the 1872 law, they run into stiff opposition from lawmakers in their own party who hail from the handful of western states where most hardrock mining on federal public lands actually takes place. Democratic Senators Mark Kelly of Arizona and Catherine Cortez Masto and Jacky Rosen of Nevada, and independent Senator Kyrsten Sinema of Arizona, for example, benefit directly from the largesse of Big Mining. The National Mining Association and the wealthy players tend to donate generously to campaign coffers. These senators also fear upsetting an industry that employs thousands of people in their states, at above-average wages. This handful of lawmakers enjoys outsized influence in Congress because the 1872 law is niche: It only applies to the 19 states that contain unreserved federal lands, and even then, the majority of hardrock mining on such lands takes place in just 10 western states, and mainly in Nevada. As a result, most lawmakers are not directly affected by the 1872 law and defer to their mining-state colleagues on the issue. 

But there’s reason to believe that after nearly 152 years of trying and failing to reform the 1872 law, change may really be afoot. In the past five years, lawmakers’ attention to securing a domestic supply of critical minerals has ramped up significantly, driven by a rising fear of China, concern over human rights violations, and a rapid shift to clean technologies. This has had the effect of training a spotlight on domestic mining and the 1872 law, even if that’s more politics than sound policy. (The 1872 law is a mess, but the vast majority of the operations that currently fall under it are mining for gold—which is used for making jewelry, not buttressing our national security. And the easiest path for the United States to secure a reliable supply chain for, say, uranium is to forge deals with very close allies, including Canada and Australia, which have a lot of it.)

The industry also has a newly acute reason to push for a rewrite of the 1872 law. In 2022, the Ninth Circuit affirmed the so-called Rosemont decision, which found that the 1872 law does not allow miners to dump tailings and waste rock on ordinary (nonvalid) mining claims on public lands, as they’d always done. They must instead get the government’s permission to use federal lands for that purpose. The decision “exposed a defect of the 1872 law,” Leshy says, “that environmentalists hoped would push industry to negotiate reform.” 

So what, exactly, could reform look like? The Biden administration, as well as most Democratic lawmakers, support scrapping the 1872 law and moving hardrock mining into the same system that governs all other industries on federal public lands: You’ve got to ask permission first, then lease the land, then pay royalties to U.S. on the valuable public resources you’ve removed. “I’m not saying we need to rewrite mining law every century,” former Deputy Interior Secretary Tommy Beaudreau told reporters with a wink after releasing a 169-page interagency report on mining reform in September. “But maybe every other century.” The report recommended sending a portion of the collected royalties back to the states where the mining occurred, to support local communities. (And, perhaps, sweeten the deal politically in mining states.) It also recommended a series of tweaks to make environmental reviews more efficient and faster for critical minerals, as well as avenues requiring the input of Native Americans and other communities who live near a proposed mine site. 

For years, New Mexico Senator Martin Heinrich and Arizona Representative Raúl Grijalva, both Democrats, have each proposed versions of a similar plan. They argue that Native Americans must have a voice in the permitting process, and that federal land managers ought to have the power to deny mining permits that are unnecessary or inappropriate, or pose too large a risk to cultural sites, water, wildlife, or the recreation industry. In 2023, their combined bill suggested between a 5 and 8 percent royalty for existing mines. The bill was endorsed by hunter and angler advocacy groups and by wildlife advocates. 

The proposal with by far the most energy on Capitol Hill—endorsed by both Republicans and mining-state Democrats, as well as by the National Mining Association—would, against all logic, double down on the 1872 law. The Mining Regulatory Clarity Act, a bicameral, bipartisan bill, would remove the part of the 1872 law that requires that miners discover valuable minerals before receiving a valid property right over the land. Instead, the bill says that miners’ claims would be valid immediately. You’d just be able to walk onto federal public land, hammer in your stake, and voilà, you’ve got yourself a constitutionally protected property right. The bill’s sponsors say such language is necessary to streamline litigation, clarify the part of the law targeted by the Rosemont decision, and limit bureaucratic power, like interior secretary land withdrawals, which would no longer apply to any land that had been claimed by anybody for any reason. 

Those who oppose the bill, meanwhile, are mashing the panic button. The provision requiring that miners discover valuable minerals before securing property rights has been in the 1872 law since its passage, and for good reason, says Leshy, the public lands expert. Without it, he predicts an explosion of litigation and extortion as opportunists amass legal property rights over tens of millions of acres of unreserved public land—knowing that when anyone, including the government, wants to use that land for any reason, they’ll have to pay up. 

It’s hardly a theoretical danger. In the years after the 1872 law passed, former Arizona Senator Ralph Henry Cameron snapped up mining claims on a popular Grand Canyon trail and began extorting admissions fees from park visitors. In 1920, the Supreme Court shut him down, on the grounds that he had not discovered valuable minerals on those claims: You gotta prove there’s gold in them hills. Forty years after that, a prospector named Merle Zweifel pulled an even more ambitious stunt, staking mining claims on hundreds of thousands of acres of public land, including along the proposed route of an aqueduct in Arizona, hoping to force the government to buy them back from him. After years of litigation, courts eventually ended Zweifel’s attempt at extortion, too, on the same grounds. 

And yet, among the reform options, the Mining Regulatory Clarity Act has by far the most support, and at a time when everyone in Washington is eager to cheerlead for domestic access to critical minerals, it’s easy to imagine it slipping quietly into law. If it does, the question at the heart of the tricky Railroad Valley showdown, and dozens of other land use disputes—how should our public lands be used to serve the greatest public good?—will not be answered by those who represent us, but by those who are quickest to lay claim to the biggest slice of our pie.

The post Showdown at Railroad Valley appeared first on Washington Monthly.

Looking at Joe Biden’s negative job approval ratings, especially on the economy, brings to mind a metaphor. Imagine a cross-country airline flight. The skies are clear during most of the trip, but then the weather turns rough. The plane starts pitching to and fro. 

The pilot gets on the intercom, and instead of explaining the situation calmly and accurately, he insists that the plane is not, in fact, pitching to and fro, and that everything is just fine. As the to-ing and fro-ing gets worse, the pilot comes back on the intercom and blames the turbulence on China and instructs the passengers to drink the bleach the flight attendants will be bringing around. 

The freaked-out cabin crew and air traffic controllers succeed in relieving the pilot of command and placing the copilot in charge. But then the weather turns even worse. The copilot is having to steer through a combination of a tornado, a hurricane, and smoke from wildfires. Passengers are getting bounced out of their seats, causing injuries and panic. These are the most challenging flying conditions that anyone in aviation can remember. But the copilot, a veteran nearing retirement age, muscles through the turbulence and somehow manages to land the jet. The passengers exit the aircraft, relieved to be alive. 

But then the original pilot goes on national TV and insists that he had everything under control until the copilot took over, and that it was a travesty and a fraud that he was relieved of command. He then reminds everyone that the weather was clear during most of the flight, and the passengers never had it so good. And about half of the passengers and the public say, “You know, he’s right. I want him to be the pilot on my next cross-country flight.” 

This little parable illustrates the dynamic that could well determine the 2024 presidential election results—and, hence, the fate of American democracy. If the race centers on comparing the conditions the country was in under each president, Donald Trump will likely win. After all, the average American’s economic well-being, as measured in real income growth, was better during Trump’s years in office than it has been during Biden’s. 

If, however, the 2024 race is a comparison of the performance of each president given the conditions each faced, Biden has a better chance. 

Indeed, it ought to be a slam dunk. Trump was handed a booming economy by the Barack Obama/Joe Biden administration, managed for three years not to screw it up, then encountered a crisis, COVID-19, and choked. Biden not only inherited the pandemic and the consequent economic turmoil but also was soon hit with a virus-induced meltdown of global supply chains and Vladimir Putin’s invasion of Ukraine. The resulting inflation spike undercut the substantial wage gains Americans were earning thanks to a jobs boom fueled partly by the massive economic stimulus Biden had signed in early 2021. But throughout 2022, his administration detangled supply chains, rallied NATO to help Ukraine stop the Russians, drove down oil prices by aggressively tapping the Strategic Petroleum Reserve, and challenged the price gouging of monopoly corporations with antitrust policy and other actions. As a result, inflation eased considerably while the economy continued to hum. Since October 2022, real incomes (that is, after inflation) for average Americans have grown sizably, though not as much as they did during the Trump years, as the Washington Monthly contributing writer Robert Shapiro recently reported. 

And those are just the immediate gains. Biden signed a massive infrastructure bill, which Trump promised but failed to do. Through the CHIPS Act and other measures, Biden has also engineered a manufacturing investment boom, which Trump also promised but failed to deliver (his trade wars led to a slump in the sector even before the pandemic hit). The economic benefits of these achievements have barely begun to be felt and will likely last for many years.

And yet, most voters give Trump higher marks on managing the economy than Biden. That might shift if real incomes continue to grow between now and the election. Still, if the upcoming presidential campaign is fought over the question “Under whose administration was your economic life easier?” Trump will have a clear advantage. If the question becomes “Whose administration built an economy that will bring a better future?” Biden has a decent shot.

But that will only happen if the press spends less time parsing the candidates’ poll numbers and more time analyzing their policies, as we do in this issue of the Monthly. Ellie Houghtaling explains how the Biden administration’s new student debt repayment program, SAVE, transformed her life and is delivering debt forgiveness to millions, even as progressive groups badmouth it and the press ignores it. Phillip Longman reveals how the administration’s upcoming antitrust trial against Google’s ad tech monopoly could revive the business of journalism, even if few reporters have a clue. And Jonathan Alter and Cliff Sloan detail the critical issues on which Trump’s upcoming federal election fraud trial will hinge.

This kind of substantive, beyond-the-horse-race coverage is what the founder of the Monthly, Charlie Peters, who died on Thanksgiving Day, demanded from those of us who worked for him (see our tributes to Charlie). It is what this magazine will be providing between now and November. 

The post Joe Biden’s Economic Headwinds appeared first on Washington Monthly.

How can progressives best produce meaningful change? Navigate the corridors of power from the inside, or rally the public to pressure politicians from the outside? Aim for incremental progress or demand sweeping, transformational policies?

For the past several years, we have watched an experiment unfold, as three prominent progressives—Representative Alexandria Ocasio-Cortez, Senator Bernie Sanders, and Senator Elizabeth Warren—have brought outsider energy to their insider perches. Two new books size up the accomplishments, and the agonies, of the trio: The Rebels: Elizabeth Warren, Bernie Sanders, Alexandria Ocasio-Cortez, and the Struggle for a New American Politics by Joshua Green and The Squad: AOC and the Hope of a Political Revolution by Ryan Grim.

Both offer a zippy narrative of noble warriors taking on entrenched powers. Both trace how the paths of the three collided in the 2020 presidential primary. Both end on ambiguous notes, tacitly acknowledging that any lessons for ambitious progressives from the battles of the past several years are not easily derived.

But they diverge on who is the main protagonist. Green puts Warren at the center of the narrative, making her the primary focus in four of the book’s 11 chapters, compared to one each for Sanders and Ocasio-Cortez. Grim only mentions Warren on 34 of his book’s 315 pages, a subplot in a larger story about AOC and the rise of the youthful left.

The choice of central character is reflective of the deeper story each wants to tell. Green, a reporter for Bloomberg Businessweek (and a contributing editor to the Washington Monthly), wants to tell the story of how Democrats lost their way and Warren helped them rediscover their populist roots.

Green sets the stage with a condensed history of how, in the years since the election of Jimmy Carter—through and including the presidency of Barack Obama—the Democratic Party grew closer to rich donors and financial industry–friendly policy advisers. (Grim covers similar ground in his prior book, We’ve Got People.) As financial markets collapsed in late 2008, in entered Warren. The Harvard Law School professor with an expertise in bankruptcy was tapped by then Senate Majority Leader Harry Reid to serve as the chief watchdog of the congressional panel monitoring the multibillion-dollar bank bailout. 

Warren’s academic research, says Green, “had long ago radicalized her against the financial industry,” which was just fine for Reid, who was uncomfortable with the bailout. But Obama was less appreciative of what Green describes as Warren’s “insurrectionary” approach to questioning the president’s economic team. He writes that “she was willing to pinpoint issues Obama officials were eager to obscure, and she didn’t hesitate to criticize those same officials publicly when she felt they weren’t being forthcoming.” 

Warren briefly got closer to the Obama administration, joining the Treasury Department to set up the Consumer Financial Protection Bureau. She initially proposed such an agency before the Great Recession in a 2007 magazine article, and the idea was incorporated into Obama’s 2010 financial regulation law, commonly known as Dodd-Frank. She wanted to be the first person to lead the agency, but, Green argues, “Obama didn’t have the nerve” to take on her opponents in the financial industry.  

Upon becoming a progressive martyr with a national profile, Warren instead ran for the U.S. Senate, taking out Republican Scott Brown, and proceeded to stymie Obama’s ability to nominate officials with Wall Street résumés. By the onset of the 2016 campaign, Green writes, “in the war between Warren and Wall Street, hers was the advancing army.”

But then, from Green’s perspective, Warren makes a misstep: She doesn’t run for president in 2016. 

Hillary Clinton’s campaign, writes Green, led Warren “to believe she’d have influence in a Clinton administration.” Warren believed that “personnel is policy,” so, “after years of playing the outside game, Warren decided that she’d have better odds of advancing her agenda on the inside.”

Green deems that “a choice that would soon go disastrously wrong,” contributing to a chain of events leading to President Donald Trump. He sketches out an alternative timeline in which Warren does run and leverages her “outsider status and scathing critique of establishment politicians” to weave an “irresistible campaign narrative.” He doesn’t assert that she would have defeated Clinton for the nomination and Trump for the presidency, but a reader might have that impression.

Instead, Senator Bernie Sanders fills the progressive void and gives Clinton a run for her money. Green is impressed by how Sanders won 43 percent of the aggregate Democratic primary vote and credits him for “shifting the Democratic Party to the left.” But he also calls Sanders a “flawed presidential candidate,” suggesting he couldn’t go all the way. 

For Grim, the Washington bureau chief of The Intercept, the story of the 2016 campaign is not one of how Warren missed her chance and let Trump swipe the populist banner, but of how Clinton weaponized racial issues to deny Sanders the ability to build a populist movement that could take the White House.

The title of Grim’s first chapter is “Ending Racism,” an ironic allusion to Clinton’s strategy for derailing Sanders after he won the New Hampshire primary. “If we broke up the big banks tomorrow,” Grim quotes Clinton on the Nevada stump, shortly after New Hampshire, “would that end racism?” she asked. “Would that end sexism?” These questions were answered by her rally-goers with a resounding “No!”

Sanders had already been struggling to win support from older African American voters, and faced criticism among some activists for a lack of emphasis on social justice. “So, when Hillary Clinton … finally recast Sanders’s critique of the big banks as a way for him to avoid confronting racism,” writes Grim, “the Democratic voting base had been primed to hear the attack as a reasonable one.”

Warren’s biggest role in Grim’s narrative comes four years later, when she and Sanders are jostling for progressive primacy in the 2020 Democratic presidential primary. As Warren’s campaign picked up steam in the fall of 2019, she won the endorsement of the populist, but not overtly socialist, Working Families Party. Instead of unifying the left, the endorsement “exposed a bubbling rift on the left.” Grim reports that “Sanders himself thought the vote had been rigged,” suspecting that the WFP leaders overrode a vote by its members. Those suspicions fueled a “swarm of denunciations” on social media by Sanders supporters targeting the party. 

The two top leaders of the WFP on the receiving end of many of the denunciations were Black, and some of the attacks were racist, feeding a stereotype of “Bernie Bro” supporters who were insensitive to the trials of women and minorities. 

Ocasio-Cortez, whose conversations and text message exchanges with Grim are peppered throughout The Squad, expressed her concern in real time: “I feel like Warren is scooping up LGBT, progressives, women & progressives of color because of how [Sanders’s supporters] isolate … it feels like they are forcing an unnecessary choice between class analysis and race analysis.” Her remedy was to endorse Sanders in dramatic fashion—right after he suffered a heart attack on the campaign trail. Warren had been intensely courting Ocasio-Cortez, and believed that getting her endorsement after Sanders’s heart attack would have made the nomination “a lock.” Instead, “losing AOC” as well as fellow Squad members Representatives Ilhan Omar and Rashida Tlaib—all women of color—to Sanders “was a blow from which the Warren campaign never recovered.”

But despite the Squad’s progressive cache, they were not able to fully immunize Sanders from further attack on his social justice bona fides. 

On January 13, 2020, CNN reported on a dinner Sanders had at Warren’s condo in December 2018 just before she launched her presidential campaign, in which sources claimed he said “that he did not believe a woman could win.” Warren quickly backed up the account. Sanders vehemently denied it. 

Unnamed Sanders campaign members complained to Grim that the story was “revenge” from the Warren camp, and the campaign’s internal polling showed that “we lost about ten points with women” in the aftermath.

As the two progressive titans squabbled with each other, they failed to connect with some of the most essential voters in a Democratic primary: African Americans. The nearly forgotten Joe Biden was able to resurrect his campaign in the South Carolina primary, secure the nomination, and win the presidency. 

Despite progressives’ failure to unite and defeat the quintessential establishment moderate, both Green and Grim see substantive impacts from the populist movement they sparked. Grim dedicates a short chapter to detailing how Warren’s commitment to the idea that “personnel is policy” was finally realized. Warren successfully lobbied to install anti-monopoly advocates at several key Biden administration posts, including Lina Khan as chair of the Federal Trade Commission and Jonathan Kanter as head of the Justice Department’s antitrust division. Green also notes that Biden has “absorbed” lessons from the new populists and taken “aggressive actions to break up concentrated corporate power.”

Green sees Ocasio-Cortez as evolving into a more effective inside player, who “came to see that direct action and righteous demands don’t, on their own, produce the outcomes many activists imagine they will.” He knocks her famous Green New Deal, introduced in 2019, as a “nonbinding resolution that lacked legislative detail” and “couldn’t draw the support of a majority of Democratic members.” But after Biden’s nomination, AOC accepted an appointment to his climate task force, and “two years later, in August 2022, Biden … delivered the largest climate investment in U.S. history” with the passage of the Inflation Reduction Act.

The Squad version of the Inflation Reduction Story is less pat, going deeper than The Rebels into the fractious legislative process in which Ocasio-Cortez and several House progressives tried to procedurally pair Biden’s sweeping multifaceted Build Back Better package to the relatively narrow Senate-passed bipartisan infrastructure bill. Linkage, in theory, would force Senator Joe Manchin and his fellow centrists, who crafted the infrastructure bill, to swallow giant investments in climate and health care, plus an extension of the American Rescue Plan’s child tax credit expansion that was slashing child poverty rates. 

But according to Grim, internal strife at the Sunrise Movement, 350.org, and the Sierra Club, partly involving charges of racism, distracted climate activists and lessened pressure on Congress. House progressives and Biden were initially on the same page regarding the stall tactic, even as it fed a Democrats-in-disarray narrative. But after Democrats were staggered by Republican Glenn Youngkin’s upset victory in the 2021 Virginia gubernatorial election, Biden pressured the House progressives to pass the infrastructure bill separately, and most of them surrendered; only AOC and five of her allies stood firm. Manchin then outraged progressives by pulling the plug on Build Back Better, though months later he worked with Senate Majority Leader Chuck Schumer to craft a smaller but still significant climate and health care package. The expired child tax credit expansion, however, was not resurrected.

Unlike Green, who draws a straight line from AOC’s cooperation with Biden’s 2020 presidential campaign to the 2022 climate bill, Grim is careful not to overstate the progressives’ collective role, noting that “Sunrise imploded” and that former White House Chief of Staff Ron Klain felt the linkage strategy only “delayed getting something done.” Still, Grim observes a shift from the 2016 campaign when “Sanders drew laughter during a debate when he called climate change the greatest national security threat” to 2022, when “the political class” understood that “to win the youth vote, you had to be a climate champion.”

Grim also channels the frustration of Ocasio-Cortez’s earliest, and most revolutionary, supporters, writing, “Influencing the Democratic Party was good, and the hundreds of billions of dollars in climate spending may never have happened without them, but the ambition had not been to nudge power in a decent direction, but, rather, to take power. And they hadn’t.” Green praises AOC for evolving into a more effective politician. For example, he credits her for cutting loose two of her House aides, Corbin Trent and Saikat Chakrabarti, who had violated decorum with caustic public comments about other congressional members and staff. “Good politicians adapt. Ocasio-Cortez was no exception,” Green writes. Grim doesn’t outright make the opposite case, but he gives Trent a platform to defend his scorched-earth approach: 

The problem, Trent said, was that they had tried to do a half a revolution. “We talked about raising the profile of staffers deliberately, so that it would be more of a movement. But then we didn’t do anything with it,” he said. “The whole office got too big for its britches. If we weren’t going to move fast and break things, if you’re not trying to fuck with people, why are you fucking with people?”

Neither The Rebels nor The Squad ends with overly confident prescriptions for how progressive populists can increase their influence going forward.

Grim winds down his book lamenting that “endless clashes with the racism, sexism, and xenophobia of Trump” had nudged “the fight over the shape of the economy … off center stage.” In turn, “a left that had felt organized around a collective agenda had disintegrated into infighting.” His lone suggestion for progressive reunification and renewed influence is a Hail Mary play: Ocasio-Cortez running for president. At the very end of the book, she ponders aloud to Grim about running against Biden, but doesn’t commit. 

Green laments Warren’s refusal to run for president in 2016, questioning her choice to instead ingratiate herself with the candidate she thought would be the next president. Yet in the epilogue of The Rebels, he sees promise for progressive populism if its leaders make the transition to insider players. “If you really want to reshape the political order,” Green argues, 

at some point you have to engage with people inside the system or nothing gets done. The activist’s dilemma, which Warren, Sanders, and Ocasio-Cortez all confronted, is that you can’t float above the sordid mess forever … you have to work with people who don’t already agree with you—who may not even like you. You have to compromise.

The legislative accomplishments in the Biden era all involved concessions from progressives, either to Republicans or to moderate Democrats. Grim partially blames culture war infighting within the activist left for a dilution of populist power. But to place blame on Sunrise Movement squabbling and the like ignores legislative math: To get sufficient majorities or supermajorities in the closely divided 2021–22 Congress, concessions would be necessary, no matter how many protest signs were held outside the Capitol.

Green is hopeful, crediting Ocasio-Cortez, Sanders, and Warren for pulling “the Democratic Party back toward its roots,” as well as Biden for picking up planks of their agenda. But he’s also uncertain about the future of the populist trio, cautioning, “We don’t know yet whether history will remember them as harbingers of a new Democratic age or insurgents who ultimately didn’t change the party as they’d hoped.”

The struggle of the two authors to chart a clear course for progressives going forward stems from a shared, flawed premise about the past: that the Democratic Party lost its progressive soul beginning in the Jimmy Carter administration, culminating in how Obama “coddled Wall Street” (per Green), “agreed to slowly bleed out the homeowners,” and executed a “pivot to austerity” (per Grim).  

But the story of the Democratic Party is not one of a good party gone bad, but of a party that has long navigated cross-pressures from populists and elites to produce policies that better the common good. 

Franklin D. Roosevelt and Harry S. Truman are often held up by economic progressives as model Democrats, but they did not always cater to populist demands. At the very beginning of his presidency, Roosevelt rejected calls to nationalize the banking system in favor of a bank bailout (“Roosevelt’s great mistake,” wailed Senator Bronson Cutting). To win Chamber of Commerce support for a system of industry codes, which would establish minimum wages and maximum work hours, Roosevelt suspended Woodrow Wilson–era antitrust laws. (“The Democratic Party dies tonight,” grumbled Senator Huey Long.) 

Truman forcefully broke with his union allies in 1946 to end a crippling nationwide railroad strike. First, via radio broadcast, he gave the strikers 16 hours to return to work or he’d direct the U.S. Army to restart train service. At the deadline, Truman upped the ante in a congressional address, proposing to draft striking workers into the Army. As the president spoke, the unions settled on terms previously proposed by Truman, but his crude tactics left labor livid. The biggest rail union leader, and former backer of Truman, sniped, “You can’t make a silk purse out of a sow’s ear, and you can’t make a President out of a ribbon clerk.” Another labor leader, and member of a far-left third party, charged that “President Truman has sold out to our native fascists [and] betrayed the program of Roosevelt.”

Such counternarrative examples add historical context to the actions of more recent Democratic presidents. Bill Clinton enacted financial industry deregulation and muscled through the North American Free Trade Agreement over union opposition, but he also raised taxes on the wealthy and hiked the minimum wage by 20 percent. Moreover, he fought a bruising battle with the health care industry in a losing effort to provide universal coverage and control consumer costs.

Obama bailed out banks and didn’t prevent all home foreclosures. But he ended the Great Recession and reduced unemployment with a nearly $800 billion stimulus program. (Obama Treasury Secretary Timothy Geithner, in his memoir, Stress Test, argued that creating good jobs for unemployed and underemployed homeowners was the best way to end the foreclosure crisis.) He also began a new era of post–New Deal financial industry regulation with the Dodd-Frank law. He passed the Affordable Care Act and raised taxes on the wealthy to help finance it. He made progressive appointments to the National Labor Relations Board, which was then able to issue rulings designed to facilitate union organizing.

Green and Grim view Biden’s policies on pandemic relief (the American Rescue Plan was more than double the size of Obama’s Recovery Act) and antitrust (with an aggressive focus on the Big Tech oligarchy that Obama eschewed) as ideological breaks from his recent Democratic predecessors. Similarly, Rana Foroohar, in a recent Washington Monthly article, “The Great Reordering,” argues that those policies, along with new investments in domestic manufacturing and crackdown on international corporate tax evasion, were evidence of a “true economic paradigm shift.” 

No doubt these are significant shifts. But they do not mean that Biden has completely closed the door on financial industry concerns or bowed to every populist demand. He bailed out the failing Silicon Valley Bank. While he has pursued tighter bank regulations, he has not resurrected a Glass-Steagall-style division of investment and commercial banking, or proposed limits on bank size. He has not gone as far as Sanders or Warren have proposed to cancel student debt. He has not pressured the Federal Reserve to keep interest rates low. He stuck with Obamacare and put “Medicare for All” on ice. 

Biden, like every other Democratic president in the past 110 years, has tried to balance the needs of labor and capital in a way that improves living standards for the working class without posing excessive hardship on the corporate class. Some might have done a better job than others to walk this fine line, but all have been guided by the same north star.

Green asserts that “it took the emergence of a left-populist faction to steer [Democrats] back toward the party’s historic concern with the economic lives of ordinary people,” but that view overlooks those policies championed by Clinton and Obama that were driven by that historic concern. 

However, The Rebels, more squarely than The Squad, recognizes the practical need for populists to work within the confines of a big-tent party, and for moderates to give populists room in the tent. Politicians “who have been around for a while, like Joe Biden, understand that for Democrats to win, they must be what Adlai Stevenson once called ‘the party of everyone’—a broad coalition that includes a younger generation closer in outlook to Ocasio-Cortez than Biden.”

True enough. But Stevenson never won a presidential election. Clinton and Obama each won two. Both faced public discontent and impatience with economic progress midway through their first terms, but neither would have been reelected if their policies had not ultimately improved the lives of ordinary people compared to four years prior. 

The Rebels treats the Warren-Geithner rift over the bank bailout as evidence of how far the Democratic Party had strayed and the catalyst for the subsequent populist uprising. But as with so many intraparty Democratic divides, the bailout divide is better explained as a good-faith difference of opinion regarding how best to help ordinary people, rather than a difference in philosophy over the importance of helping ordinary people in the first place. 

Understanding the exact nature of the Democratic Party is crucial to effectively influence its direction. Is the party a friendly big tent filled with well-intentioned liberals of differing ideological stripes? Or is it a brutal cage match between populist progressives and Wall Street centrists? If there’s an enemy to vanquish, then the logic of confrontational revolution makes more sense. But a party bound by shared goals can be navigated with good ideas, smart lobbying, and flexible dealmaking. 

Green’s counsel to progressive Democrats to aim for “compromise” with their moderate brethren is far more grounded in reality than Trent’s wish, highlighted by Grim, to “move fast and break things.” But if Ocasio-Cortez, Sanders, and Warren oblige, don’t expect a “new Democratic age.” In the Democratic Party, collaboration, however contentious, between the left and the center is an old story.

The post After a Decade of Left-Populism, What Have We Learned About Political Change? appeared first on Washington Monthly.

A few decades ago, as Germany was painfully navigating the path to reunification, it was often labeled “the sick man of Europe.” Since then, the country has recovered nicely, and it is now the United States that’s considered the “sick man.” The political system that once served as ballast to Western democracies is both uncertain and unstable. Disruptive political violence has extended from local polling places to the halls of Congress, and trust in public institutions has reached a nadir. 

Less than 20 years ago, the mood was different. The U.S. had just elected its first Black president, and the threats from al-Qaeda and other foreign terrorist organizations had abated. What changed? The causes of our current crisis are as diverse as the meteorological factors in a perfect storm. Some make the argument for Christian nationalism; others for dark money in politics; still others for the hypnotic power of the MAGA movement. These are necessary, but not sufficient, descriptors for our times. 

In their new book, God, Guns, and Sedition, Bruce Hoffman and Jacob Ware make a powerful argument for an additional piece of the puzzle: a violent strain of the American psyche that goes back to the Reconstruction era, and has metastasized in recent decades, thanks to the proliferation of guns and the catalyst of the internet and social media. 

Hoffman, a Georgetown professor and senior fellow at the Council on Foreign Relations, is uniquely qualified to analyze the situation. He began working on American right-wing domestic terrorism in 1981, early in his career, largely because it had been generally overlooked by other scholars. Following the September 11 attacks, he became a ranking expert on religious extremism originating in the Middle East, but now, he writes, circumstances have obliged him to turn his attention back to domestic terrorism. His coauthor, Jacob Ware, is an adjunct professor at Georgetown and a research fellow at the Council on Foreign Relations. 

Early on, Hoffman took special interest in The Turner Diaries, a 1978 dystopian novel that has served as a foundational text for right-wing extremists. Hoffman and Ware’s book notes how The Turner Diaries cast its influence over events ranging from Timothy McVeigh’s bombing of the Alfred P. Murrah Federal Building in Oklahoma City to the gallows erected on the grounds of the Capitol on January 6. The throughline for the attacks is the desire to topple the U.S. government as we’ve known it. The reigning philosophies include white supremacy, driven by the “great replacement theory” that religious and racial minorities are usurping the place of an entitled population. The means often depend on what Hoffman and Ware call “leaderless resistance,” in which loosely networked groups carry out plans for individual acts of terrorism, difficult to monitor but easy to replicate. 

The authors point out that many of these elements have been with us for decades, but a new catalyst has emerged: the idea of “accelerationism.” The term is borrowed from the Marxist strategy of revolution, they note, but it 

is also the contemporary manifestation of a decades-old white power strategy to foment violent chaos as a means to seize power … In this current usage, accelerationism is embraced by a spectrum of white supremacists, white nationalists, racists, antisemites, xenophobes, and antigovernment militants as a clarion call to revolution.

These elements hold that “the modern Western liberal state is so corrupt and inept that it is beyond redemption and must be destroyed in order to create a new society and way of governance.” It’s easy to draw parallels with the apocalyptic visions that are prevalent among Christian extremists. Why bother to uphold good governance and nourish our public institutions if they’re scheduled for eradication? 

The adherents to these beliefs represent a minority among the roughly 164 million American adults who identify as Christian. But this minority, heavily concentrated among Southern Baptists, other fundamentalist sects, and Pentecostals, punches above its weight politically, especially in the South and the West. These congregations have been targeted and radicalized by massive campaigns that are waged by direct mail, from the pulpit, and, most dangerously, online. In the process, the concept of Christian nationalism has diverged from its connections to Christian theology and emerged as a movement of political identity based on strategically fueled grievance. It doesn’t matter that this cohort represents a minority among American Christians, and that its voters embrace minority positions on social and political issues. Just as the Apocalypse promises to overthrow earthly kingdoms, the apocalyptic political vision seeks to overthrow American governance in its current version, with no promise of anything better to come.

Much of God, Guns, and Sedition is an encyclopedic examination of the many acts of terrorism—both domestic and foreign—that have grown out of this inchoate movement. The chronicle of the Ku Klux Klan is provocative; although popular culture tends to identify the Klan with the former Confederacy, it has been a nationwide phenomenon. Ohio, for example, was the leading locale for the Klan’s second generation, with some 400,000 members; at one point, both future President Harry S. Truman and future Justice Hugo Black belonged. The hate-filled echoes of the lynching era resound in the recent attacks on synagogues and Black churches. 

But the authors report that the race-based tensions of that era had economic and geographical dimensions as well. The incubator for much of the right-wing domestic terrorism of the late 20th century lay in agricultural areas, where “a combination of falling crop prices, poor weather, and soaring interest rates were driving farmers into bankruptcy at a rate not experienced since the Great Depression.” These farmers were predominantly the descendants of European immigrants from the 19th century, for whom farming was both a legacy and a way of life. In 1920, some 32 million Americans—nearly a third of the total—lived in farming communities. By 1987, the number had plummeted to under 5 million, or 2 percent of the population. 

On a local level, this translated into many farmers’ inability to pay taxes and finance their operations. Cherished family homesteads were lost to corporate factory farms, in some cases leading to the demise of entire towns. There were political implications, as what would later be called blue states turned purple and purple states turned red. More critically, right-wing extremists took advantage of this pain by establishing footholds in Idaho, Montana, Wyoming, and parts of Oregon and Washington—an area collectively known as the “American Redoubt.” Hoffman and Ware describe the region’s role in the Posse Comitatus movement, which mounted a series of violent actions in the 1970s and ’80s, reporting that “by 1978, the FBI had identified seventy-eight chapters in nearly two dozen states with an estimated membership of some 12,000 people.” (The Redoubt’s dream of a militant theocracy lives on, as chronicled in Bradley Onishi’s recent book, Preparing for War: The Extremist History of White Christian Nationalism—and What Comes Next.) 

Hoffman and Ware amply demonstrate that the roots of white supremacy, Christian nationalism, and terrorism offshoots extend well back into the past, but why are they  burgeoning now? The authors offer three compelling reasons. One is the role of video gaming and social media, which allow seditious activity to proliferate in dark corners of the internet. In one instance, they describe how a user instigated physical violence online by cloaking it in gaming terminology. They also note that social media makes it easy for extremists to engage psychologically vulnerable youths, citing the example of the Atomwaffen Division, a small but virulent international neo-Nazi network. Three of its young recruits have been convicted of committing a total of five murders. It was found that all of them suffered from an array of mental illnesses and neurological disorders, including autism in each case. 

Just as digital media lower the bar to communications promoting violence, America’s lax gun laws make it easier for these violent acts to be carried out. On every front, the authors show, the United States has fallen behind its European counterparts in its response. In the rosy dawn of the web, it was presumed that digital platforms would take on the responsibility of policing themselves. Those efforts are going backward. The Twitter of Jack Dorsey made some good-faith attempts to limit violent and hate speech. In November 2022 and twice in 2023, however, Elon Musk’s X made cuts in its trust and safety team, which handles content moderation, and in its unit monitoring hate speech and harassment. Likewise, despite efforts to require background checks and limit the sale and possession of the kinds of semiautomatic weapons commonly used in domestic terrorism and school shootings, American gun laws have grown more lax. (Ironically, roughly 90 minutes after the Oklahoma City bombing in 1995, McVeigh was arrested at a traffic stop for unlawfully carrying a handgun. As of 2019, due to Oklahoma’s revised gun laws, he would not have been subject to arrest on that count.)

According to Hoffman and Ware, another accelerant has been Donald Trump, amplified by media allies such as Fox News. Domestic terrorism is fueled by anger, resentment, and a sense of disentitlement. Trump’s rhetoric attacking immigrants, Muslims, and African Americans has now been tied to dozens of physical assaults. The authors cite extensive social media posts lauding Trump as a leader. On the website of Stormfront, a neo-Nazi forum, one user comments, “At this point, if you still don’t support Trump I’m seriously questioning whether or not you’re [a white nationalist].” Another writes that Trump gets his more violently inclined supporters so “riled up” that “they would charge and attack if he told them too [sic]. They love Trump. He is almost like a Fuhrer.” 

Trump has had international help. Hoffman and Ware write of “Russia’s repeated, malignant interference” in the 2016 elections. 

But since that time the Kremlin’s continued manipulation of Western democracies has delivered to Russia a potential strategic victory: succeeding where decades of Soviet-era subversion during the Cold War had failed by undermining public trust and confidence in the Western state system and the democratic process.

This is perhaps the most critical point of many made in this compelling work. The internet represents America’s porous frontier. We’ve been invaded and lack the strategy to mount an effective defense. 

Hoffman and Ware bravely set out in their final chapter to offer recommendations. They look to Congress to respond to the threats with intelligence and common sense: Pass laws that would allow the prosecution of domestic terrorists with the same vigor as their foreign counterparts. Strictly regulate the kinds of weapons that cause the most carnage. Expand the designation of “foreign terrorist organization” to apply to more neo-Nazi and white supremacist groups. Investigate the extremists’ infiltration of the U.S. military and law enforcement agencies. Finally, help Americans distinguish between fact and disinformation in their online diets. None of these measures is impossible, as various European democracies have shown. But if Hoffman and Ware are relying on Congress to implement these measures, they should take the position of the current House leadership into consideration. Are they promoting a vision of the peaceable kingdom—or Apocalypse now?

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